EXHIBIT 10.8
CREDIT AGREEMENT
IRREVOCABLE LETTER OF CREDIT NO. 24057
DATED JULY 22, 2002
Beneficiary:
Regions Bank
as Trustee under the Indenture
referred to below
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Attention: Corporate Trust Department
Dear Sirs:
1. For the account of Ocean Bio-Chem, Inc., Star-Brite Distributing,
Inc., Star Brite Automotive, Inc., Star Brite Distributing (Canada) Inc.,
corporations organized under the laws of the State of Florida, and KINPAK INC.,
a corporation organized under the laws of the State of Alabama (collectively,
the "Borrowers"), we hereby authorize you to draw on us at sight, as hereinafter
provided, an amount not exceeding $3,441,754 (such amount, as reduced from time
to time pursuant to paragraph 6 below and as reinstated from time to time
pursuant to paragraphs 10 and 11 below, being herein called the "Credit
Amount").
2. This Letter of Credit is irrevocable and is issued to you, as
trustee under the Trust Indenture dated as of December 1, 1996, as amended and
supplemented by First Supplemental Trust Indenture dated as of March 1, 1997
(collectively, the "Indenture") between you and The Industrial Development Board
of the City of ▇▇▇▇▇▇▇▇▇▇, a public corporation organized under the laws of the
State of Alabama (the "Issuer"), pursuant to which Indenture $4,000,000 in
aggregate principal amount of the Issuer's Industrial Refunding Revenue Bonds
(KINPAK INC. Project) Series 1997 dated March 3, 1997 (the "Bonds") were issued.
Of the Bonds, $3,280,000 in aggregate principal amount are outstanding as of the
date hereof. This Letter of Credit is issued pursuant to various credit and
security documents between us and the Borrowers , including that certain Credit
Agreement dated as of July 1, 2002 (the "Credit Agreement"). Capitalized terms
used herein without definition shall have the respective meanings assigned to
them in the Credit Agreement.
3. Of the Credit Amount, (i) up to $3,280,000, which is an amount equal
to the principal amount of the Bonds (the "Principal Portion"), may be drawn
with respect to payment of the unpaid principal amount of the Bonds, or payment
of the principal portion of the purchase price of Bonds tendered (or deemed
tendered) to you for purchase in accordance with the optional or mandatory
tender provisions of the Indenture ("Tendered Bonds") and (ii) up to $161,754,
which is an amount equal to the maximum amount of interest payable on the
currently outstanding Bonds at the rate of 15% per annum for a period of 120
days, computed on the basis of a 365 day year (the "Interest Portion"), may be
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drawn with respect to payment of accrued but unpaid interest on the Bonds, or
payment of the interest portion of the purchase price of Tendered Bonds. This
Letter of Credit does not apply to any interest that may accrue on the Bonds
after the Bonds become due (whether by maturity, redemption, acceleration or
otherwise), or to any premium due upon redemption of the Bonds.
4. Funds under this Letter of Credit are available to you against your
sight draft(s), drawn on Regions Bank, Birmingham, Alabama stating on their
face: "Drawn under Regions Bank Irrevocable Letter of Credit No. 24057
accompanied by your written certificate signed by your authorized officer,
appropriately completed, in the form of Appendix A, B or C hereto, as indicated
below. Presentation of such drafts and certificates shall be made at our office
located at
Regions Bank
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or at any other office which may be designated by us by written notice delivered
to you (the office address specified above and any other office so designated by
us being herein called our "Principal Office"). We hereby agree that each draft
drawn under and in compliance with the terms of this Letter of Credit will be
duly honored by us with our own funds upon due delivery of the certificates, as
specified below, if presented at our Principal Office on or before the
expiration date hereof. All payments made by us pursuant to this Letter of
Credit will be made with our own funds.
5. If a drawing is made by you hereunder at or prior to 10:00 a.m.
(Birmingham, Alabama time) on a Business Day, and provided that the documents so
presented conform to the terms and conditions hereof, payment shall be made to
you, or to your designee, of the amount specified, in immediately available
funds, not later than 1:30 p.m. (Birmingham, Alabama time) on the same business
day. If a drawing is made by you hereunder after 10:00 a.m. (Birmingham, Alabama
time) on a business day, and provided that the documents so presented conform to
the terms and conditions hereof, payment shall be made to you, or to your
designee, of the amount specified, in immediately available funds, not later
than 1:30 p.m. (Birmingham, Alabama time) on the next succeeding business day.
Payment under this Letter of Credit may be made by deposit of immediately
available funds into a designated account that you maintain with us.
6. Multiple drawings may be made hereunder, provided that drawings
honored by us hereunder shall not, in the aggregate, exceed the Credit Amount.
The Credit Amount shall be reduced as follows:
(a) Payment by us of drawings with respect to principal due upon
maturity, redemption or acceleration of the Bonds shall pro tanto
reduce the Principal Portion of the Credit Amount, without
reinstatement.
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(b) Payment by us of drawings with respect to interest due on the
Bonds shall pro tanto reduce the Interest Portion of the Credit Amount,
subject to reinstatement as provided in paragraph 10 below.
(c) Payment by us of drawings with respect to the purchase of
Tendered Bonds shall pro tanto reduce the Principal Portion of the
Credit Amount, to the extent of the principal portion of the purchase
price so drawn, and shall pro tanto reduce the Interest Portion of the
Credit Amount, to the extent of the interest portion of the purchase
price so drawn, in each case subject to reinstatement as provided in
paragraph 11 below.
(d) At any time after the principal amount of the Bonds
outstanding is reduced as a result of payment of the principal of Bonds
due upon maturity or redemption, the Interest Portion of the Credit
Amount may be reduced by delivery to us of written notice in the form
of Appendix A hereto from you certifying the maximum amount of interest
that would be payable on the Bonds then outstanding for a period of 120
days at the rate of 15% per annum, computed on the basis of a 365 day
year (the "Maximum Interest Coverage"). Upon receipt by us of such
notice from you, the Interest Portion of the Credit Amount shall be
reduced to the Maximum Interest Coverage so certified by you and shall
not thereafter be increased or reinstated to an amount in excess of
such Maximum Interest Coverage. If, on the date of receipt of such
notice by us, the Interest Portion of the Credit Amount then available
for drawing hereunder is less than the Maximum Interest Coverage so
certified (as a result of draws against the Interest Portion for which
no reinstatement has become effective), the Interest Portion shall not
thereafter be increased or reinstated to an amount greater than the
Maximum Interest Coverage so certified by you.
7. For drawings under the Principal Portion to pay principal of the
Bonds due upon maturity, redemption or acceleration, your drafts must be
accompanied by your written certificate signed by your authorized officer and
appropriately completed in the form of Appendix A (an "A Drawing").
8. For drawings under the Interest Portion to pay the interest due on
the Bonds, your drafts must be accompanied by your written certificate signed by
your authorized officer and appropriately completed in the form of Appendix B (a
"B Drawing").
9. For drawings under the Principal Portion and (if applicable) the
Interest Portion to pay the purchase price of Tendered Bonds, your drafts must
be accompanied by your written certificate signed by your authorized officer and
appropriately completed in the form of Appendix C (a "C Drawing").
10. On the day of payment by us of any B Drawing hereunder, the
Interest Portion of the Credit Amount will be automatically reinstated by the
amount of such B Drawing; provided, however, that the Interest Portion shall
never be reinstated to an amount in excess of the Maximum Interest Coverage, as
certified in the most recent notice with respect to Maximum Interest Coverage
received by us pursuant to paragraph 6 above.
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11. Upon receipt by us of funds adequate and available to reimburse us
for a C Drawing with respect to any Tendered Bond or Bonds ("Reimbursement
Funds"), (i) the Principal Portion shall be reinstated by the amount of the
principal portion of the purchase price of such Tendered Bond or Bonds, and (ii)
the Interest Portion shall be reinstated by the amount of the interest portion
of the purchase price of such Tendered Bond or Bonds; provided, however, that
the Interest Portion shall never be reinstated to an amount in excess of the
Maximum Interest Coverage, as certified in the most recent notice with respect
to Maximum Interest Coverage received by us pursuant to paragraph 6 above. Bonds
with respect to which we receive such Reimbursement Funds shall no longer be
considered "Pledged Bonds" for purposes of the Indenture and the Credit
Agreement. We shall promptly notify you of the receipt by us of all Reimbursed
Funds, such notice to be in the form of Appendix D hereto.
12. Reductions of the Credit Amount provided for in paragraph 6 above
shall reduce the amounts which you may draw hereunder notwithstanding:
(a) the fact that such reduction is the result of a payment under
this Letter of Credit against presentation of a sight draft or
certificate which does not substantially comply with the terms of this
Letter of Credit (including without limitation (i) the fact that any
draft or certificate presented upon this Letter of Credit, or any
endorsement thereon, proves to be forged, fraudulent, invalid,
unenforceable or insufficient in any respect or any statement therein
is inaccurate in any respect whatever or (ii) the failure of any
document to bear reference, or to bear adequate reference, to this
Letter of Credit);
(b) the use to which this Letter of Credit may be put or any acts
or omissions of the Trustee in connection therewith; or
(c) any other circumstances or happening whatsoever, whether or
not similar to any of the foregoing, in making payment under this
Letter of Credit;
provided that such payment shall not constitute gross negligence or willful
misconduct by us. In furtherance and not in limitation of the foregoing, we may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
13. Only you, as trustee under the Indenture, may make a drawing under
this Letter of Credit. Upon the payment to you or your account of the amount
specified in sight drafts drawn hereunder, we shall be fully discharged of our
obligation under this Letter of Credit with respect to such sight drafts and we
shall not thereafter be obligated to make any further payments under this Letter
of Credit in respect of such sight drafts to you or any other person who may
have made or makes a demand for payment of principal or interest with respect to
any Bond.
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14. This Letter of Credit shall be effective immediately and shall
automatically terminate upon the earliest of:
(a) the date of our honoring of the final drawing available to be
made hereunder; or
(b) the date of our receipt of a certificate in the form of
Appendix E hereto appropriately completed and purportedly signed by
your duly authorized officer; or
(c) thirty (30) days after receipt by you of written notice from
us (i) stating that an Event of Default, as defined in the Credit
Agreement, has occurred and is continuing and (ii) directing that the
Bonds be declared due and payable pursuant to Section 601(g) of the
Indenture; or
(d) fifteen (15) calendar days following the date that the Bonds
have been converted to bear the Fixed Rate (as defined in the
Indenture); or
(e) our close of business on July 31, 2005 (the "Stated
Expiration Date").
The Stated Expiration Date of this Letter of Credit will be extended
automatically for successive one-year periods unless at least sixty (60) days
prior to the then current Stated Expiration Date the Bank gives written notice,
in the form of Appendix G hereto, to the Trustee and the Borrowers by courier
letter notice, that the Bank elects not to so extend the Stated Expiration Date
of this Letter of Credit. Upon the expiration or other termination of this
Letter of Credit you shall immediately deliver the same to us for cancellation.
15. You may transfer your rights in their entirety (but not in part) to
any transferee who has succeeded you as trustee under the Indenture, and such
transferred rights may be successively transferred. Such transfer shall be
effected upon the presentation to us of this Letter of Credit accompanied by a
transfer letter in the form attached hereto as Appendix F. Upon presentation of
such documents to us, we shall forthwith issue an irrevocable Letter of Credit
to your transferee with provisions consistent with this Letter of Credit.
16. Except as specifically set forth herein, this Letter of Credit is
subject to the International Standby Practices 1998, as promulgated by the
Institute of International Banking Law and Practice, Inc. ("ISP98"). This Letter
of Credit shall be deemed to be a contract made under the laws of the State of
Alabama and shall, as to matters not governed by the ISP98, be governed by and
construed in accordance with the laws of the State of Alabama, except Section
7-5-108(b) and (c) of the Code of Alabama 1975, as amended, shall not apply
hereto.
17. All documents, notices and other communications (hereinafter
"documents") provided or permitted by this Letter of Credit to be given or
presented to us shall be personally delivered to us at our Principal Office or
shall be sent to us by telecopy (in which case draft requirements are waived) to
the following number:
Telecopy No. (▇▇▇) ▇▇▇ ▇▇▇▇
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or such other telex, telecopy, or facsimile number as we shall specify by
written notice to you. For purposes of this Letter of Credit, a document shall
be "presented" or a "presentation" of a document shall be made in accordance
with the terms hereof only when such document is actually received by our
International Department at our Principal Office, whether presented in person or
by telecopy as provided above. You may verify our receipt of documents delivered
by telecopy by telephone inquiry at (▇▇▇) ▇▇▇ ▇▇▇▇, or at such other telephone
number as we shall specify by written notice to you.
18. All documents, notices and other communications provided or
permitted by this Letter of Credit to be given or presented to you shall be
personally delivered to you at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department, or at any other address which may be
designated by you by written notice delivered to us, or shall be sent to you by
telecopy to the following number: Telecopy No. (▇▇▇) ▇▇▇ ▇▇▇▇, or such other
telex, telecopy, or facsimile number as you shall specify by written notice to
us.
19. This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds), except only the certificates and the
sight drafts referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except for
such certificates and such sight drafts.
20. This Letter of Credit may not be amended or modified in any way
unless there has been first delivered to the Trustee, the Company and the
Remarketing Agent an Opinion of Bond Counsel that such action will not, whether
solely or in conjunction with any other fact or circumstance, cause the interest
on the Bonds to be or become taxable. This Letter of Credit is executed as of
the date and year first above written.
Very truly yours,
REGIONS BANK
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
APPENDIX A
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
CERTIFICATE FOR A DRAWING
Regions Bank as trustee (the "Trustee"), hereby certifies to Regions
Bank (the "Bank"), with reference to Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit) issued by the Bank
in favor of the Trustee, that:
(1) The Trustee is the trustee under the Indenture.
(2) The Trustee is making a drawing under the Principal Portion of the
Letter of Credit in the amount of $________________ to be used for the payment
of unpaid principal on the Bonds due upon maturity, redemption or acceleration.
Such amount is due and payable with respect to the principal of the Bonds, or
will be due and payable on the date that the Bank is required to pay the
draft(s) accompanying this certificate.
(3) The aggregate amount of the sight draft(s) accompanying this
certificate that is allocable to the payment of principal of the Bonds does not
exceed the amount available on the date hereof to be drawn under the Principal
Portion of the Letter of Credit
(4) After the Bonds with respect to which this draw is made are
retired, the aggregate principal amount of Bonds outstanding under the Indenture
will be $_______________. After payment by you of this drawing (and any B
Drawing submitted by us for payment on the same date), the Maximum Interest
Coverage (as defined in paragraph 6(d) of the Letter of Credit) will be
$________________.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be
executed and delivered by its duty authorized officer on this _____ day of
________________, _______-.
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX B
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
CERTIFICATE FOR B DRAWING
Regions Bank, as trustee (the "Trustee"), hereby certifies to Regions
Bank (the "Bank"), with reference to Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit) issued by the Bank
in favor of the Trustee, that:
(1) The Trustee is the trustee under the Indenture.
(2) The Trustee is making a drawing under the Interest Portion of the
Letter of Credit in the amount of $____________________ to be used for the
payment of unpaid interest due on the Bonds. Such amount is due and payable with
respect to interest on the Bonds, or will be due and payable on the date that
the Bank is required to pay the draft(s) accompanying this certificate.
(3) The aggregate amount of the sight draft(s) accompanying this
certificate does not exceed the amount available on the date hereof to be drawn
under the Interest Portion of the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be
executed and delivered by its duly authorized officer on this ________ day of
_______________, ______.
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX C
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
CERTIFICATE FOR C DRAWING
Regions Bank, as trustee (the "Trustee"), hereby certifies to Regions
Bank (the "Bank"), with respect to Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit) issued by the Bank
in favor of the Trustee, that:
(1) The Trustee is the trustee under the Indenture.
(2) The Trustee is making a drawing under the Letter of Credit in the
amount of $_______________ to be used to pay the purchase price of Tendered
Bonds. Of the aggregate amount drawn, $________________ is drawn under the
Interest Portion of the Letter of Credit to pay the interest portion of such
purchase price and $_________________ is drawn under the Principal Portion of
the Letter of Credit to pay the principal portion of such purchase price. The
aggregate amount so drawn is due and payable with respect to the purchase price
of Tendered Bonds, or will be due and payable on the date that the Bank is
required to pay the draft(s) accompanying this certificate.
(3) The aggregate amount of the sight draft(s) accompanying this
certificate does not exceed the amount available on the date hereof to be drawn
under the Letter of Credit; the amount designated above as drawn against the
Interest Portion does not exceed the amount available on the date hereof to be
drawn under the Interest Portion of the Letter of Credit; and the amount
designated above as drawn against the Principal Portion does not exceed the
amount available on the date hereof to be drawn under the Principal Portion of
the Letter of Credit.
(4) This C Drawing is being made to pay the purchase price of the
following Tendered Bonds:
Certificate Number Principal
(if applicable) Amount
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IN WITNESS WHEREOF, the Trustee has caused this certificate to be
executed and delivered by its duly authorized officer on this _______ day of
_______________, _____.
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX D
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
REIMBURSEMENT NOTICE
Regions Bank (the "Bank") hereby certifies to Regions Bank, as Trustee
(the "Trustee"), with respect to Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit) issued by the Bank
in favor of the Trustee, that:
(1) The Bank has received reimbursement of amounts due to us because of
a C Drawing made on the Letter of Credit by that certain draft dated ___________
in the amount of $___________________ with respect to the following
TenderedBonds:
Certificate Number Principal
(if applicable) Amount
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Total $
(2) The Principal Portion shall be reinstated by $__________________,
which was the amount of the principal portion of the purchase price of the
Tendered Bonds referred to in paragraph (1) above.
(3) The Interest Portion shall be reinstated by $_________________,
which was the amount of the interest portion of the purchase price of the
Tendered Bonds referred to in paragraph (1) above.
IN WITNESS WHEREOF, the Bank has caused this certificate to be executed
and delivered by its duly authorized officer on this ____ day of
_______________, ______.
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX E
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
CERTIFICATE FOR CANCELLATION
Regions Bank, as trustee (the "Trustee"), hereby certifies to Regions
Bank (the "Bank"), with respect to Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit) issued by the Bank
in favor of the Trustee, that:
(1) The Trustee is the trustee under the Indenture.
(2) The Letter of Credit is hereby delivered to the Bank for
cancellation because:
(a) the Bonds have been fully paid, or provision for such payment
has been made, in accordance with the terms of Article VIII of the
Indenture; or
(b) the terms and conditions of the Indenture (and the Restated
Lease Agreement referred to in the Indenture) for the acceptance by the
Trustee of a Substitute Letter of Credit or an Alternate Credit
Facility and the cancellation of the Letter of Credit have been
satisfied.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be
executed and delivered by its duly authorized officer on this ______ day of
_______________, ____.
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX F
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
TRANSFER LETTER
Regions Bank
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Date:
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Gentlemen:
With reference to your Irrevocable Letter of Credit No. 24057 (the
"Letter of Credit"; capitalized terms not otherwise defined herein shall have
the meaning assigned to such terms in the Letter of Credit), we hereby transfer
to ____________________________ all right, title and interest of the undersigned
in and to the Letter of Credit.
We hereby certify that the transferee is the successor trustee under
the Indenture.
Please notify the transferee of this transfer.
The Letter of Credit (including amendments to this date, if any) is
returned herewith, and we request that you issue a new irrevocable letter of
credit in favor of the transferee with provisions consistent with the Letter of
Credit, as required by the terms of the Letter of Credit. This transfer shall be
void and of no effect if you fail to issue such a letter of credit to the
transferee.
Very truly yours,
REGIONS BANK
as Trustee
By:
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Title:
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APPENDIX G
TO
REGIONS BANK
IRREVOCABLE LETTER OF CREDIT NO. 24057
CERTIFICATE DENYING EXTENSION OF
STATED EXPIRATION DATE OF LETTER OF CREDIT
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
To: Regions Bank, as Trustee
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Re: Irrevocable Transferable Letter of Credit No. 24057
The undersigned hereby certifies to Regions Bank, as Trustee (the
"Trustee") with reference to Irrevocable Transferable Letter of Credit No. 24057
(the "Letter of Credit") issued by Regions Bank (the "Bank") in favor of the
Trustee and for the account of Ocean Bio-Chem, Inc., et al, that the Bank has
elected not to grant a one-year extension of the current Stated Expiration Date
of the Letter of Credit, which is _________________ _____, ______.
IN WITNESS WHEREOF, the Bank has executed and delivered this
Certificate as of the _____ day of ____________, _____, which is a date at least
60 days prior to the current Stated Expiration Date of the Letter of Credit.
REGIONS BANK
By:
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Title:
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