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Exhibit 10(q)
[WACHOVIA Logo]
SECOND MASTER CREDIT AGREEMENT
MODIFICATION AGREEMENT
THIS AGREEMENT, made as of the 5th day of December, 2000, by
and among WACHOVIA BANK, N.A. (the "Lender"), SEA PINES ASSOCIATES, INC. and SEA
PINES COMPANY, INC. (if more than one, collectively, the "Borrower").
WITNESSETH:
WHEREAS, the Borrower has made and issued to the Lender: (1)
an Amended and Restated Revolving Line of Credit Note, dated the 31st day of
October, 1998, evidencing an original indebtedness of FIFTEEN MILLION AND NO/100
DOLLARS ($15,000,000.00); (2) an Amended and Restated Term Note, dated the 31st
day of October, 1998, evidencing an original indebtedness of EIGHTEEN MILLION,
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($18,500,000.00); and (3) an Amended
and Restated Seasonal Line of Credit Note, dated the 31st day of October, 1998,
evidencing an original indebtedness of TWO MILLION, FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($2,500,000.00) as amended by that certain First Seasonal Line of
Credit Note Modification Agreement dated December 20, 1999 and as amended by
that certain Second Seasonal Line of Credit Note Modification Agreement dated of
even date herewith, (such documents, as same may have been heretofore amended,
being herein referred to as the "Notes"); and
WHEREAS, the Borrower and the Lender have executed and
delivered a Master Credit Agreement dated October 31, 1998 as amended by that
certain First Master Credit Agreement Modification Agreement dated October 31,
1999, made a part hereof by this reference as fully as if set out herein
verbatim (such document, as same may have been heretofore amended, being herein
referenced to as the "Master Credit Agreement"), which establishes uniform
agreements, obligations, and covenants and other matters concerning the Notes
and other Obligations (as defined in the Master Credit Agreement) of the
Borrower to the Lender; and
WHEREAS, to secure the Notes and other Obligations, the
Borrower has executed and delivered certain Mortgages and Assignments (as those
terms are defined in the Master Credit Agreement) made a part hereof by this
reference as fully as if set out herein verbatim (such documents as same may
have been heretofore amended, being herein referred to as the "Security
Instruments"); and
WHEREAS, the Borrower has requested the Lender make certain
modifications to the Master Credit Agreement; and
WHEREAS, the Lender, as party to the Master Credit Agreement,
and the Borrower mutually desire to modify and amend the provisions of the same
in the manner hereinafter set out, it being specifically understood that except
as herein modified and amended, the terms and provisions of the Master Credit
Agreement shall remain unchanged and continue in full force and effect as
therein written.
NOW, THEREFORE, the Lender and the Borrower in consideration
of One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each, and each does hereby agree
that the Master Credit Agreement should be, and the same hereby is, modified and
amended as follows:
1. A DEFINITION OF "COVENANT FEE" IS HEREBY ADDED AS SECTION
1.01(KK) OF THE MASTER CREDIT AGREEMENT:
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"COVENANT REVISION FEE" MEANS (I) A FEE OF FORTY THOUSAND ($40,000.00)
DOLLARS WHICH SHALL BE DUE AND PAYABLE UPON EXECUTION OF THE SECOND MASTER
CREDIT AGREEMENT MODIFICATION AGREEMENT, AND (II) A FEE OF TEN THOUSAND
($10,000.00) DOLLARS WHICH MAY BE DUE AND PAYABLE QUARTERLY AS PROVIDED IN
SECTION 8.02(A) OF THIS AGREEMENT, ALL OF WHICH FEES SHALL BE FULLY EARNED WHEN
PAID AND NONREFUNDABLE.
2. THE TEXT OF SECTION 4.01 OF THE MASTER CREDIT AGREEMENT IS
HEREBY DELETED AND THE FOLLOWING SENTENCE IS ADDED IN SUBSTITUTE THEREFOR:
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE BANK AGREES TO LEND
TO THE BORROWER AND THE BORROWER AGREES TO BORROW FROM THE BANK UP TO FOUR
MILLION, FIVE HUNDRED THOUSAND ($4,500,000.00) DOLLARS ON A SEASONAL LINE OF
CREDIT BASIS (THE "SEASONAL LINE OF CREDIT FACILITY").
3. THE TEXT OF SECTION 4.07 OF THE MASTER CREDIT AGREEMENT IS
HEREBY DELETED AND THE FOLLOWING SENTENCE IS ADDED IN SUBSTITUTE THEREFOR:
IN NO EVENT SHALL THE BANK BE UNDER ANY OBLIGATION TO MAKE AN ADVANCE AFTER THE
OCCURRENCE OF AN EVENT OF DEFAULT OR THE SEASONAL LINE OF CREDIT MATURITY DATE
OR AFTER THE BANK HAS GIVEN NOTICE THAT THE NOTE WILL BE CALLED ON A "CALL DATE"
(AS DEFINED IN THE SEASONAL LINE OF CREDIT NOTE) SUBSEQUENT TO THE FIRST DAY OF
MARCH PRECEDING THE CALL DATE OR THE OCCURRENCE OF AN EVENT WHICH WITH NOTICE OR
THE PASSAGE OF TIME OR BOTH WOULD CONSTITUTE AN EVENT OF DEFAULT, AND ALL
AMOUNTS DUE AND OWING SHALL BE PAID ON SAID MATURITY DATE OR CALL DATE OR AS
OTHERWISE PROVIDED IN THE SEASONAL LINE OF CREDIT NOTE.
4. THE WORDS "AND COVENANT REVISION FEES" ARE HEREBY ADDED TO
SECTION 8.01(A) AFTER THE WORDS "ANY FACILITY FEES."
5. THE TEXT OF SECTION 8.02(A) OF THE MASTER CREDIT AGREEMENT
IS HEREBY DELETED AND THE FOLLOWING PARAGRAPHS ARE ADDED IN SUBSTITUTE THEREFOR:
(i) THE BORROWER SHALL NOT ALLOW THE AMOUNT OF ITS TOTAL
LIABILITIES AT ANY QUARTER END TO EXCEED THREE HUNDRED AND FIFTY
PERCENT (350%) OF THE AMOUNT OF ITS TANGIBLE NET WORTH, AS DEFINED
BELOW (THE "NET WORTH RATIO"); PROVIDED, THAT FOR EACH FISCAL QUARTER
BEGINNING WITH THE FOURTH QUARTER OF 2000 AND ENDING WITH THE FOURTH
QUARTER OF 2002, THE MAXIMUM NET WORTH RATIO FOR SUCH QUARTER END SHALL
BE BASED ON THE FACTOR INDICATED FOR THE RELEVANT QUARTER ON THE
ATTACHED EXHIBIT A. THE BORROWER SHALL PROVIDE, UPON REQUEST OF THE
BANK, SUCH INFORMATION, IN ADDITION TO OTHER INFORMATION REQUIRED
HEREBY, AS MAY BE NECESSARY TO VERIFY COMPLIANCE THEREWITH ON ANY
QUARTER END. "TANGIBLE NET WORTH" MEANS THE REMAINDER AFTER SUBTRACTING
TOTAL LIABILITIES FROM THE BOOK VALUE OF TOTAL TANGIBLE ASSETS (TOTAL
ASSETS LESS GOOD WILL AND OTHER INTANGIBLE ASSETS) BASED UPON GAAP.
"TOTAL LIABILITIES" MEANS THE BOOK VALUE OF TOTAL LIABILITIES BASED
UPON GAAP PLUS THE AMOUNT OF INDEBTEDNESS FOR WHICH THE BORROWER IS
LIABLE ON A CONTINGENT OR CONDITIONAL BASIS, INCLUDING GUARANTEES.
(ii) FOR ANY FISCAL QUARTER DURING 2002, AT THE END OF WHICH
THE NET WORTH RATIO IS GREATER THAN OR EQUAL TO TWO HUNDRED AND FIFTY
PERCENT (250%), THE BORROWER WILL PAY THE BANK A COVENANT REVISION FEE
IN THE AMOUNT OF TEN THOUSAND ($10,000.00) DOLLARS. THIS FEE WILL BE
PAYABLE IN ARREARS AT THE SAME TIME THE BORROWER'S QUARTERLY COMPLIANCE
CERTIFICATE IS DUE TO BE DELIVERED TO THE BANK AS PROVIDED IN SECTION
8.02(D). PAYMENT OF A COVENANT REVISION FEE BY THE BORROWER AND
ACCEPTANCE THEREOF BY THE BANK WILL NOT EXCUSE ANY BREACH BY THE
BORROWER OF ANY COVENANT CONTAINED HEREIN NOR CONSTITUTE A WAIVER BY
THE BANK OF ANY SUCH BREACH.
6. THE FOLLOWING LANGUAGE IS HEREBY ADDED AT THE END OF THE
FIRST SENTENCE OF SECTION 8.02(B) OF THE MASTER CREDIT AGREEMENT:
; PROVIDED, THAT AS OF THE END OF EACH FISCAL QUARTER BEGINNING WITH THE FOURTH
QUARTER OF 2000 AND ENDING WITH THE THIRD QUARTER OF 2001, THE MINIMUM DSC RATIO
SHALL BE AS INDICATED FOR THE RELEVANT QUARTER ON THE ATTACHED EXHIBIT A.
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7. THE FORM OF QUARTERLY COMPLIANCE CERTIFICATE ATTACHED TO
THE MASTER CREDIT AGREEMENT AS SCHEDULE I IS HEREBY REPLACED WITH THE FORM OF
COMPLIANCE CERTIFICATE ATTACHED AS SCHEDULE I HERETO.
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL AND UNLESS THE
LENDER AND THE BORROWER EXECUTE THIS AGREEMENT AND THE BORROWER PAYS TO THE
LENDER A NONREFUNDABLE COVENANT REVISION FEE IN THE AMOUNT OF FORTY THOUSAND
($40,000.00) DOLLARS, FOR THE MODIFICATION OF THE MASTER CREDIT AGREEMENT.
IT IS MUTUALLY AGREED by and between the parties hereto that
this Agreement shall become a part of the Master Credit Agreement by reference
and that nothing herein contained shall impair the security now held for said
indebtedness, nor shall waive, annul, vary or affect any provision, condition,
covenant or agreement contained in the Notes or Master Credit Agreement except
as herein amended, nor affect or impair any rights, powers or remedies under the
Notes or Master Credit Agreement as hereby amended. Furthermore, the Lender does
hereby reserve all rights and remedies it may have as against all parties who
may be or may hereafter become primarily or secondarily liable for the repayment
of the indebtedness evidenced by the Notes.
The Borrower promises and agrees to pay the indebtedness
evidenced by the Notes in accordance with the terms thereof and agrees to
perform all of the requirements, conditions and obligations under the terms of
the Notes and Master Credit Agreement as hereby modified and amended, said
documents being hereby ratified and affirmed. The execution and delivery hereof
shall not constitute a novation or modification of the lien, encumbrance or
security title of the Security Instruments, which Security Instruments shall
retain their priority as originally filed for record. Borrower expressly agrees
that the Notes are in full force and effect and that Borrower has no right to
setoff, counterclaim or defense to the payment thereof.
Any reference contained in the Notes, Security Instruments or
Master Credit Agreement, as amended herein, to the Master Credit Agreement shall
hereinafter be deemed to be a reference to such document as amended hereby.
Borrower acknowledges that Lender may reproduce (by electronic
means or otherwise) any of the documents evidencing and/or securing the Notes
and thereafter may destroy the original documents. Borrower does hereby agree
that any document so reproduced shall be the binding obligation of Borrower,
enforceable and admissible in evidence against it to the same extent as if the
original documents had not been destroyed provided, however, any original of a
document executed by the parties shall be conclusive evidence as to the terms of
that document.
This Agreement shall be closed without cost to the Lender and
all expenses incurred in connection with this closing (including, without
limitation, all attorneys' fees) are to be paid by the Borrower. The Lender is
not providing legal advice or services to the Borrower.
This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina without regard to
principles of conflict of laws.
This Agreement shall be binding upon and inure to the benefit
of any assignee or the respective heirs, executors, administrators, successors
and assigns of the parties hereto.
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This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute any of such counterparts.
IN WITNESS WHEREOF, this instrument has been executed under
seal by the parties hereto and delivered on the date and year first above
written.
LENDER:
WACHOVIA BANK, N.A.
[CORPORATE SEAL] By: /s/ R. Xxxx Xxxxxxxx, Jr.
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Its: Assistant Vice President
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SEA PINES ASSOCIATES, INC.
[CORPORATE SEAL] By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: Chief Executive Officer
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SEA PINES COMPANY, INC.
[CORPORATE SEAL] By: Xxxxxxx X. Xxxxxxxx
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Its: President
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EXHIBIT A
COVENANT REVISION
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YEAR 2000 2001 2002
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PERIOD 4TH QTR 1ST QTR 2ND QTR 3RD QTR 4TH QTR 1ST QTR 2ND QTR 3RD QTR 4TH QTR
------- ------- ------- ------- ------- ------- ------- ------- -------
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REVISED COVENANT 0.80 0.35 0.40 1.20 1.25 1.25 1.25 1.25 1.25
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DSC
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REVISED COVENANT 3.30 4.10 3.90 3.50 3.50 3.75* 3.50* 3.50* 3.50*
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NET WORTH
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$ $40,000 (upfront) $10,000* $10,000* $10,000* $10,000*
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REVISION FEE
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% 0.10% 0.025%* 0.025%* 0.025%* 0.025%*
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*Beginning 1st Quarter '02, at any fiscal quarter where Net Worth is >/=2.50,
then a $10,000 fee will be assessed in arrears.
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SCHEDULE I
COMPLIANCE CERTIFICATE
I. DEBT SERVICE COVERAGE RATIO CALCULATION (AS OF __________, 19___)
FOUR QUARTERS
QUARTER ENDED ENDED
------- ------- ------- ------- ------------
Net Income (Loss)
Non Cash Expenses - Section IV
------- ------- ------- ------- ------------
Total Numerator _______ _______ _______ _______ ____________
Current Portion of Long Term Debt *
Current Portion of Capital Leases *
Dividends Paid **
------- ------- ------- ------- ------------
Total Denominator _______ _______ _______ _______ ____________
DEBT SERVICE
COVERAGE RATIO
============
Minimum Debt Service
Coverage Ratio 1.25***
Incentive Debt Service
Coverage Ratio and
Applicable margins
DSC Ratio Applicable Margin
< 1.50 1.50% (150 basis points)
=> 1.50 but <1.75 1.35% (135 basis points)
=> 1.75 1.25% (125 basis points)
* Current quarter balances
** Dividends accrued or paid during the past four quarters
*** or as follows: Quarter Minimum DSC Ratio
------- -----------------
2000 4th Qtr. .80
2001 1st Qtr. .35
2001 2nd Qtr. .40
2001 3rd Qtr. 1.20
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II. NET WORTH RATIO CALCULATION (AS OF ____________________, 19__)
Total Liabilities (including contingent and conditional liabilities)
Tangible Net Worth
NET WORTH RATIO *
============
Maximum Net Worth Ratio 3.50**
* Beginning 1st Quarter, 2002, if => 2.50, then $10,000 Covenant Revision
fee is due and payable with this certificate
** or as follows: Quarter Maximum Net Worth Ratio
------- -----------------------
2000 4th Qtr. 3.30
2001 1st Qtr. 4.10
2001 2nd Qtr. 3.90
2001 3rd Qtr. 3.50
2001 4th Qtr. 3.50
2002 1st Qtr. 3.75
III. OFFICER CERTIFICATION
To the best of my knowledge, the loan covenant calculations above are
correct and have been prepared in accordance with the definitions
included in the Master Credit Agreement. No Event of Default exists
under the Master Credit Agreement or any other governing loan document.
SEA PINES ASSOCIATES, INC.
By:
------------------------- --------------------------------
Date
Its:
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IV. DEBT SERVICE COVERAGE RATIO CALCULATION (AS OF ___________, ____)
FOUR QUARTERS
QUARTER ENDED ENDED
NON CASH EXPENSES _______ _______ _______ _______ _____________
Depreciation and amortization
Health Care Operations/Sale
Equity Loss in TidePonte Partners
Tax Provision Adjustment
------- ------- ------- ------- ------------
Total Non Cash Expenses
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