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EXHIBIT 10.51
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
DATED AS OF FEBRUARY 1, 1999
BETWEEN
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
AND
NATIONSBANK, N.A.
$6,670,000.00
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
TAXABLE VARIABLE RATE DEMAND NOTES
SERIES 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS...................................................................................2
ARTICLE II REPRESENTATIONS BY COMPANY;
CONDITIONS TO ISSUANCE OF LETTER OF CREDIT...................................................10
Section 2.01 Representations by Company............................................................10
Section 2.02 Letter of Credit Commitment...........................................................16
Section 2.03 Conditions Precedent to Issuance of the Letter of Credit..............................16
Section 2.04 Provisions Regarding Approval of Requisitions and
Disbursements from Construction Fund.................................................19
Section 2.05 Foundation Survey.....................................................................21
Section 2.06 Cost-Breakdown Updates................................................................22
Section 2.07 Consent to Final Disbursement from the Construction Fund..............................22
Section 2.08 Capitalized Interest..................................................................22
ARTICLE III REIMBURSEMENT OBLIGATION;
OTHER PAYMENTS; LETTER OF CREDIT FEES........................................................23
Section 3.01 Reimbursement and Other Payments......................................................23
Section 3.02 Fees..................................................................................25
Section 3.03 Supplemental Payments.................................................................26
Section 3.04 Computation of Interest: Form and Place of Payment...................................26
Section 3.05 Security for Reimbursement Obligations................................................27
Section 3.06 Acquisition of Notes..................................................................27
ARTICLE IV COVENANTS OF THE COMPANY; OTHER AGREEMENTS...................................................28
Section 4.01 Special Covenants of Company..........................................................28
Section 4.02 Continuous Obligations: Obligations Absolute.........................................30
Section 4.03 Transfer of Letter of Credit..........................................................30
Section 4.04 Reduction and Reinstatement of Stated Amount of Letter of Credit......................30
Section 4.05 Survival of Commitment................................................................30
Section 4.06 Termination of Loan Agreement.........................................................30
ARTICLE V DEFAULTS AND REMEDIES........................................................................31
Section 5.01 Events of Default.....................................................................31
Section 5.02 No Waiver: Remedies Cumulative.......................................................33
ARTICLE VI MISCELLANEOUS................................................................................34
Section 6.01 Right of Set-off......................................................................34
Section 6.02 Liabilities...........................................................................34
Section 6.03 Consent to Service of Process.........................................................35
Section 6.04 Estoppel Certificate..................................................................35
Section 6.05 Amendments............................................................................35
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Section 6.06 Successors............................................................................35
Section 6.07 Fees and Expenses: Expenses of Collection.............................................35
Section 6.08 Notices...............................................................................36
Section 6.09 Severability..........................................................................38
Section 6.10 Assignment............................................................................38
Section 6.11 Participations........................................................................38
Section 6.12 Counterparts..........................................................................38
Section 6.13 Rule of Construction..................................................................38
Section 6.14 Governing Law.........................................................................38
Section 6.15 Preamble: Preliminary Recitals........................................................38
Section 6.16 Indenture.............................................................................38
Section 6.17 Credit Institution Representation.....................................................38
Section 6.18 Consent to Jurisdiction: Waiver of Jury Trial.........................................38
SCHEDULE 3.01(a) OPTIONAL REDEMPTIONS.........................................................................42
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THIS LETTER OF CREDIT REIMBURSEMENT AGREEMENT (the "AGREEMENT"), made
as of the 1st day of February, 1999, between ▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC., a
Delaware corporation (the "COMPANY"), and NATIONSBANK, N.A., a national banking
association, having a designated place of business in Atlanta, Georgia (the
"CREDIT Institution");
PREAMBLE: RECITALS:
WHEREAS, pursuant to the terms and provisions of that certain
Indenture of Trust, dated as of February 1, 1999 (the "INDENTURE"), by and
between the Company and Norwest Bank Minnesota, N.A., as trustee (the
"TRUSTEE"), the Company is issuing its Taxable Variable Rate Demand Notes,
Series 1999, in the aggregate principal amount of Six Million Six Hundred
Seventy Thousand Dollars ($6,670,000.00) (herein, the "NOTES"); and
WHEREAS, the proceeds of the Notes will be used to finance the
reimbursement to the Company of the construction and renovation of the
Company's corporate headquarters located in Sunrise, Florida (herein, the
"PROJECT"); and
WHEREAS, the proceeds of the Notes will be deposited on the Date of
Issuance (as hereinafter defined) in the Construction Fund created and
established under the Indenture and held by the Trustee thereunder to be
disbursed to the Company pursuant to the terms and provisions of the Indenture,
this Agreement and the other Financing Documents (as hereinafter defined); and
WHEREAS, the Company has agreed to pay the principal of or purchase
price of the Notes and the interest thereon in accordance with the provisions
of the Indenture; and
WHEREAS, to enhance the marketability of the Notes and to pay the
principal of or purchase price of the Notes and the interest thereon in
accordance with the provisions of the Indenture, the Company has requested that
the Credit Institution issue, in favor of the Trustee, its irrevocable direct
pay letter of credit in the initial stated amount of $6,746,751.00 in the form
attached hereto as Exhibit A (the "LETTER OF CREDIT"); and
WHEREAS, the Company and the Credit Institution desire (a) to specify
the conditions precedent to the issuance of the Letter of Credit by the Credit
Institution and to obtain the Credit Institution's approval of disbursements of
proceeds of the Notes for the benefit of the Company, and (b) to provide for
the payment to the Credit Institution of certain fees for the Letter of Credit,
the reimbursement by the Company of amounts paid by the Credit Institution
under the Letter of Credit, the indemnity by the Company of the Credit
Institution pursuant to the terms of this Agreement, the security to be
provided by or on behalf of the Company to secure its performance under this
Agreement, and certain other matters;
NOW, THEREFORE, in consideration of the premises and the agreements
contained in this Agreement, the Company and the Credit Institution agree as
follows:
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ARTICLE I
DEFINITIONS
The terms "Construction Fund," "Cost of the Project," "Fiscal Agent,"
"Maximum Rate," "Placement Agreement," "Remarketing Agent," "Remarketing
Agreement," "Substitute Letter of Credit" and all other capitalized terms used
and not defined herein shall have the meanings given thereto in the Indenture.
As used in this Agreement, in addition to the terms previously defined herein or
defined in Section 1.01 of the Indenture, the following terms shall have the
meanings as provided in this Article I. Unless otherwise provided, each of the
financial terms not specifically defined herein shall have the meaning given to
it under Generally Accepted Accounting Principles applied on a consistent basis,
and the computation of any such term is to be determined both as to
classification of items and as to amounts in accordance with Generally Accepted
Accounting Principles. Unless otherwise indicated, references to Articles or
Sections refer to those in this Agreement.
The Recitals are hereby incorporated herein by this reference.
"A Drawing" shall mean a drawing made under the Letter of Credit by
sight draft accompanied by a certificate in the form required thereunder to pay
scheduled principal of and interest on the Notes or to pay the redemption price
of the Notes due to an optional redemption of the Notes pursuant to the
provisions of the Indenture.
"Affiliate" shall mean, with respect to any Person, any other person
(i) directly or indirectly controlling (including, but not limited to, all
directors and officers of such person) controlled by, or under direct or
indirect common control with, such Person or (ii) that directly or indirectly
owns more than 5% of the voting securities of such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership or voting
securities, by contract or otherwise.
"Anniversary Date" shall mean the same day and month as the Date of
Issuance occurring in any subsequent year.
"Assignment Agreement" shall mean that certain Collateral Assignment
of Agreements Affecting Real Estate dated as of February 1, 1999, by and
between the Company and the Credit Institution by which the Company has, with
the consent and acknowledgment of the parties to the contracts therein referred
to, assigned and granted a security interest to the Credit Institution in all
construction and architectural documents relating to the Project and in all
permits and licenses relating to the Project, as the same may be amended,
modified or supplemented from time to time in accordance with its terms.
"B Drawing" shall mean a drawing made under the Letter of Credit by
sight draft accompanied by a certificate in the form required thereunder to pay
the purchase price of the Notes due to an optional tender for purchase or a
mandatory tender for purchase directed by the Company pursuant to the
provisions of the Indenture.
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 ET. SEQ., as
amended.
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"Business Day" shall have the same meaning as provided in the Letter
of Credit.
"Butters" shall mean Butters Construction & Development, Inc., a
Florida corporation.
"C Drawing" shall mean a drawing made under the Letter of Credit by
sight draft accompanied by a certificate in the form required thereunder to pay
the purchase price of the Notes due to a mandatory purchase of the Notes as a
result of an event of default under the Indenture or as a result of the
provision of a substitute Letter of Credit or to pay the redemption price of
the Notes due to the expiration or termination of the Letter of Credit, all as
provided pursuant to the provisions of the Indenture.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and all
rules and regulations from time to time promulgated thereunder.
"Collateral" shall mean all real and personal property of the Company
and/or the Guarantors (to the extent described in the Corporate Guaranty) in
which the Credit Institution has been granted a collateral assignment, lien or
security interest pursuant to the terms and provisions of the Financing
Documents.
"Commitment Letter" shall mean the letter dated October 26, 1998,
whereby the Credit Institution agreed to issue the Letter of Credit for the
benefit of the Company, and the Company accepted such commitment.
"Construction Contract" shall mean that standard form of agreement
dated as of May 27, 1998 between the Company and Butters Construction &
Development, Inc. ("BUTTERS"), as contractor, where the basis of payment is the
cost of work plus a fee without a guaranteed maximum price, as the same may be
amended, modified or supplemented from time to time in accordance with its
terms.
"Controlled Group" shall mean (i) the controlled group of corporations
as defined in Section 1563 of the United States Internal Revenue Code of 1986,
as amended, or (ii) the group of trades or businesses under common control as
defined in ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as
amended, of which the Company is a part or may become a part.
"Corporate Guaranty" shall mean that certain Guaranty Agreement of the
Guarantors dated the Date of Issuance in favor of the Credit Institution, as
the same may be amended, modified or supplemented from time to time in
accordance with its terms.
"Cost Certificate" shall have the meaning given in Section 2.03(l)
hereof.
"Cost of the Project" means the costs of the Project as described in
Section 4.07 of the Indenture.
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"Date of Issuance" shall mean the date on which the Letter of Credit
is issued and becomes effective hereunder.
"Default" shall mean any condition or event which with the giving of
notice or lapse of time or both, would constitute an Event of Default
hereunder.
"Environmental Claim" shall mean any accusation, allegation, notice of
violation, claim, demand, abatement order, or other order or direction
(conditional or otherwise) by any Governmental Authority or any Person for any
damage, including, without limitation, personal injury (including sickness,
disease, or death), tangible or intangible property damage, contribution,
indemnity, direct or consequential damages, damage to the environment,
nuisance, pollution, contamination, or other adverse effects on the
environment, or for fines, penalties, or restrictions, in each case relating
to, resulting from, or in connection with Hazardous Materials and relating to
the Company, or any property leased, owned, operated, or used by the Company.
"Environmental Laws" shall mean any and all federal, state local, or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, or requirements of any Governmental Authority regulating, relating to
or imposing liability or standards of conduct concerning, any Hazardous
Materials or environmental protection or health and safety, as now or at any
time hereafter be in effect, including without limitation: the Clean Water Act,
also known as the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C.
Section 1251 ET SEQ.; the Clean Air Act ("CAA"), 42 U.S.C. Section 7401 ET
SEQ.; the Federal Insecticide, Fungicide, and Rodenticide Act 66 ("FIFRA"), 7
U.S.C. Section 136 ET SEQ.; the Surface Mining Control and Reclamation Act
("SMCRA"), 30 U.S.C. Section 1201 ET SEQ.; the Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 ET
SEQ.; the Superfund Amendment and Reauthorization Act of 1986 ("▇▇▇▇"), Public
Law 99-499, 100 Stat. 1613; the Emergency Planning and Community Right to Know
Act ("EPCRKA"), 42 U.S.C. Section 11001 ET SEQ.; the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. Section 6901 ET SEQ.; and the Occupational
Safety and Health Act, as amended ("OSHA"), 29 U.S.C. Section 655 and Section
657; together, in each case, with any amendments and the regulations adopted
and publications promulgated thereunder and all substitutions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, including any rules and regulations promulgated thereunder.
"Event of Default" shall mean any of the Events of Default as defined
in Section 5.01 hereof.
"Financing Documents" shall mean the Notes, the Letter of Credit, this
Agreement, the Loan Agreement, the Construction Contract, the Mortgage, the
Corporate Guaranty, UCC financing statements, the Assignment Agreement, the
Indenture, and any and all other agreements or other instruments now or
hereafter executed and delivered by the Company, the Guarantors or any other
person in connection with, or as security for the payment or performance of
this Agreement or the Corporate Guaranty.
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"Generally Accepted Accounting Principles" or "GAAP" shall mean
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants (or other governmental or regulatory agency,
board, institute or body having jurisdiction on thereover), and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other Person or entity as may be approved by a significant
segment of the accounting profession, that are applicable to the circumstances
as of the date of determination.
"Governmental Authority" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency, department or
other governmental subdivision having jurisdiction over the Company, any
Affiliate or Subsidiary of the Company or any of their respective businesses,
operations or properties.
"Guarantors" shall mean collectively, ▇▇▇▇▇▇▇▇▇ Commercial Aircraft,
Inc., a Delaware corporation, Aero Support Holdings, Inc., a Florida
corporation, Integrated Technology Holdings Corp., a Delaware corporation,
Aerocar Aviation Corp., a Florida corporation, Aerocar Parts, Inc., a Florida
corporation, Solair, Inc., a Florida corporation, and any other Subsidiaries of
the Company, either presently existing or acquired hereafter (with the
exception of ▇▇▇▇▇▇▇▇▇ International Sales Corporation, so long as such
corporation is a foreign sales corporation).
"Guaranty" of any Person shall mean any contract, agreement or
understanding of the Person pursuant to which the Person guarantees, or in
effect guarantees, any Indebtedness of any other Person (the "PRIMARY OBLIGOR")
in any manner, whether directly or indirectly, and including without limitation
agreements: (i) to purchase the Indebtedness or the collateral for the
Indebtedness, (ii) to provide funds (a) for the purchase or payment of the
Indebtedness or (b) to maintain net worth or working capital or other balance
sheet conditions, (iii) to purchase property, securities or services primarily
for the purpose of assuring the holder of the Indebtedness of the ability of
the Primary Obligor to make payment of the Indebtedness, and (iv) otherwise to
assure the holder of the Indebtedness against loss.
"Hazardous Materials" shall mean any flammable materials, explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or
toxic substances, or similar materials defined as such in any Environmental
Laws.
"Hazardous Substance Agreement" shall mean that certain Hazardous
Substance Certificate and Indemnification Agreement of even date herewith by
the Company, the Guarantors, ▇▇▇▇▇▇▇▇▇ International Sales Corporation, a U.S.
Virgin Islands corporation and the Bank.
"Indebtedness" of any Person shall mean all indebtedness, obligations
and liabilities of the Person, including without limitation: (i) all
"liabilities" which would be reflected on a balance sheet of the Person
prepared in accordance with GAAP, (ii) all obligations of the Person under any
Guaranty, (iii) all obligations of the Person under any capital lease, (iv) all
obligations, indebtedness and liabilities secured by any Lien or any security
interest on any property or assets of the Person, and (v) all redeemable
preferred stock of the Person valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends.
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"Indenture" shall mean the Indenture of Trust, dated as of February 1,
1999, between the Company and the Trustee, as amended or supplemented from time
to time in accordance with its terms.
"Interest Requirement" shall mean an amount equal to the total
interest accruing on outstanding Notes for a period of 35 days, calculated at
an assumed rate equal to twelve percent (12%) per annum over a year of 365 or
366 days, as applicable.
"Letter of Credit" shall mean the Letter of Credit issued by the
Credit Institution to the Trustee pursuant to this Agreement in the form of
Exhibit A attached hereto.
"Lien" shall mean any lien, mortgage, security interest, tax lien,
pledge, encumbrance, conditional sale or title retention arrangement, or any
other interest in property designed to secure the repayment of Indebtedness,
whether arising by agreement or under any statute or law or otherwise.
"Loan Agreement" shall mean that certain $250,000,000.00 Amended and
Restated Loan and Security Agreement, dated as of December 14, 1998, among the
Company and certain subsidiaries named therein, the financial institutions
party thereto from time to time, the Credit Institution for itself and as
agent, and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, as the same may be amended,
modified or supplemented from time to time in accordance with its terms.
"Material Adverse Effect" shall mean any material adverse effect upon
(a) the business, assets, properties, liabilities, condition (financial or
otherwise), results of operations or business prospects of the Borrower and its
Subsidiaries taken as a whole or the Guarantors, or other Person, (b) the value
of the Collateral, (c) the Security Interest or the priority of the Security
Interest, (d) the respective ability of the Borrower, Guarantors or other
Person to perform any obligations under this Agreement or any other Note
Documents or Financing Documents to which it is a party, (e) the legality,
validity, binding effect, enforceability or admissibility into evidence of any
Financing or Note Document or the ability of the Credit Institution to enforce
any rights or remedies under or in connection with any Loan Document, or (f)
the ability of the Borrower and its subsidiaries taken as a whole to conduct
its business as currently conducted or contemplated.
"Maximum Rate" shall mean the lesser of (a) the highest interest rate
which may be borne by the Notes under Florida law or (b) twelve percent (12%)
per year.
"Mortgage" shall mean that certain Mortgage, Assignment of Rents and
Security Agreement dated as of February 1, 1999, from the Company to the Credit
Institution, pursuant to which the Company has granted a first lien mortgage in
the Project and Project Site to secure the Company=s Obligations under this
Agreement, as the same may be amended, modified or supplemented from time to
time in accordance with its terms.
"Note Documents" shall mean collectively, the Placement Agreement, the
Remarketing Agreement, and the Placement Memorandum, as the same may be
amended, modified or supplemented from time to time in accordance with their
respective terms.
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"Notes" shall mean the Taxable Variable Demand Notes, Series 1999, in
the aggregate principal amount of Six Million Six Hundred Seventy Thousand
Dollars ($6,670,000.00) to be issued pursuant to the terms and conditions of
the Indenture.
"Notes Closing" shall mean the authentication and delivery of the
Notes pursuant to the Indenture.
"Obligations" shall mean all loans and all other advances, debts,
liabilities, obligations, covenants and duties owing, arising, due or payable
from the Company to the Credit Institution of any kind or nature, present or
future, whether or not evidenced by any note, guaranty, swap agreement, hedge
agreement or other instrument, whether arising under this Agreement or any of
the other Financing Documents or Note Documents or otherwise, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
primary or secondary, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all interest,
charges, expenses, fees, attorney's fees, and any other sums chargeable to the
Company under any of the Note Documents or Financing Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"Permitted Encumbrances" shall have the meaning as provided in the
Mortgage.
"Permitted Liens" shall mean (i) Liens granted to the Credit
Institution to secure the Obligations, (ii) pledges or deposits made to secure
payment of worker's compensation insurance (or to participate in any fund in
connection with worker's compensation insurance), unemployment insurance,
pensions or social security programs or under payment or performance bonds or
as a condition to the transaction of any business, (iii) Liens imposed by
mandatory provisions of law such as for materialmen's, mechanics',
warehousemen's and other like Liens arising in the ordinary course of business,
securing Indebtedness whose payment is not yet due or is due but is being
contested in good faith by appropriate proceedings and as to which adequate
reserves have been provided, (iv) Liens for taxes, assessments and governmental
charges or levies imposed upon a Person or upon such Person's income or profits
or property (excluding any Lien imposed pursuant to any of the provisions of
ERISA), if the same are not yet due and payable or if the same are being
contested in good faith and as to which adequate cash reserves have been
provided, (v) Liens arising from good faith deposits in connection with
tenders, leases, real estate bids or contracts (other than contracts involving
the borrowing of money), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds, and deposits to secure the payment of taxes, assessments, customs duties
or other similar charges in the ordinary course of business, (vi) purchase
money security interests in after-acquired personal property, which property
has an aggregate value (when combined with all other Indebtedness of the
Company) not exceeding $5,000,000.00, (vii) the Liens in favor of the Credit
Institution under the Financing Documents, (viii) Permitted Encumbrances and
other Liens on the Project Site in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property or
minor defects or irregularities in the title to any real property, which do not
materially detract from the value of such property or impair the use thereof in
the business of the Company or its Subsidiaries, (ix) existing
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liens as of the date of this Agreement that have been disclosed to the Credit
Institution through the Loan Agreement, financial statements or otherwise, (x)
Liens on money deposited by residents or others with the Company as security
for or as prepayment of rent, and (xi) Liens on property received by the
Company through gifts, grants or bequests, such Liens being due to restrictions
on such gifts, grants or bequests of property or the income thereon.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, association, joint
venture or a government or agency or political subdivision or instrumentality
thereof.
"Placement Agent" means NationsBank, N.A., the placement agent under
the Placement Agreement with respect to the initial placement of the Notes.
"Placement Agreement" shall mean the Placement Agreement, dated as of
February 1, 1999, by and between the Company and the Placement Agent.
"Placement Memorandum" shall mean the Private Placement Memorandum
dated February 16, 1999, relating to the sale of the Notes by the Placement
Agent and the Remarketing Agent.
"Plan" shall mean an employee benefit plan or other plan maintained
for employees of the Company covered by Title IV of ERISA, or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code of
1986, as amended.
"Prime Rate" shall mean that fluctuating rate of interest per annum
established from time to time by the Credit Institution as its Prime Rate. The
Company acknowledges and agrees that the Prime Rate is a reference used in
determining interest rates on certain loans by the Credit Institution and is
not intended to be the best or lowest rate of interest charged on any extension
of credit to any customer. The rate of interest charged on amounts payable
under the Financing Documents shall not exceed applicable legal limits.
"Project" shall mean (i) the financing, in whole or in part, of the
reimbursement to the Company cost of the acquisition, construction and
equipping of a headquarters facility for the Company in Sunrise, Florida and
(ii) the payment of the costs of issuance of the Notes and other related costs.
"Project Manager" shall mean the person appointed by Butters and
approved by the Company to manage the building of the Project Site.
"Project Site" shall mean the real and personal property and all
improvements subject to the Mortgage and described on Schedule A to the
Mortgage.
"Reimbursement Account" shall mean the Reimbursement Account
established pursuant to Section 3.01 hereof.
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"Release" shall mean any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal dumping,
leaching, or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers, or other closed receptacles containing any Hazardous
Materials), or into or out of any property owned, leased, operated, or used by
the Company or any Subsidiaries (if any), including the movement of any
Hazardous Material through the air, soil, surface water, groundwater, or
property.
"Remarketing Agent" shall mean, initially, NationsBank, N.A., and any
successor agent or agents appointed from time to time pursuant to the terms of
the Indenture.
"Remarketing Agreement" means initially the Remarketing and Interest
Services Agreement between the Remarketing Agent and the Company, dated as of
February 1, 1999, and any and all modifications, alterations, amendments and
supplements thereto and (b) any agreement between the Company and any successor
remarketing agent appointed pursuant to the terms of the Indenture.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA.
"Stated Expiration Date" shall have the same meaning as provided in
the Letter of Credit.
"Stated Amount" shall mean the face amount of the Letter of Credit,
initially, up to $6,746,751.00 representing a $6,670,000.00 principal portion
and up to $76,751.00 interest portion to cover 35 days' interest on the Notes
at the Maximum Rate, as it may be reduced and reinstated from time to time in
accordance with the terms of the Letter of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not, at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any thereof, such stock is at such time owned by such Person
and/or one or more Subsidiaries of such Person) and (ii) any partnership,
limited liability company, association, joint venture or other entity in which
such Person and/or one or more Subsidiaries of such Person has more than a 50%
equity interest at the time. Unless the context indicates otherwise, all
references herein to Subsidiaries are references to subsidiaries of the
Company.
"Termination Date" shall mean the last day a drawing is available
under the Letter of Credit.
"UCC" shall mean the Uniform Commercial Code in effect in
jurisdictions where assets of the Company or the Guarantors are located or
subject to jurisdiction at any time during the term hereof.
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ARTICLE II
REPRESENTATIONS BY COMPANY;
CONDITIONS TO ISSUANCE OF LETTER OF CREDIT
Section II.1 REPRESENTATIONS BY COMPANY. The Company makes the
following representations:
(a) All representations and warranties made by the Company in
the Financing Documents and the Note Documents are incorporated herein by
reference and shall be deemed thereby to have been made and reaffirmed by the
Company for the benefit of the Credit Institution as if they were fully set
forth herein.
(b) Other than Affiliates of the Company, there is no person,
firm, partnership, limited liability company, joint venture or corporation that
controls, is controlled by or is under common control with the Company.
(c) The Company owns fee simple title to the Project Site and
is in sole possession of the Project Site. The Mortgage will be a first lien
against the Project Site, and there are and will be no encumbrances against the
Project Site other than those listed in Schedule B-II of the Attorneys' Title
Insurance Fund title commitment #C-2698338, dated February 22, 1999.
(d) The Company has the power to own its property and to
carry on its business as now being conducted and is in good standing in each
jurisdiction in which the character of the properties owned by it therein or in
which the transaction of its business makes such qualification necessary.
(e) The Company has full corporate power and authority to
enter into and execute and deliver each of the Financing Documents and the Note
Documents to which it is a party and to incur and perform the obligations
provided for herein and therein, all of which have been duly authorized by all
proper and necessary corporate action. No consent or approval of members or of
any other person or Governmental Authority or regulatory body is required as a
condition to the validity or enforceability of any of such Financing Documents
or Note Documents, or if required the same has been duly obtained. The Company
makes no representations as to compliance with federal securities laws or state
blue sky laws with respect to the Notes.
(f) The contemplated use of the Project is and will continue
to be in conformity with all applicable governmental laws, ordinances, rules
and regulations (including, but not limited to, all Environmental Laws, the
Americans with Disabilities Act, health, safety and zoning laws, ordinances,
rules and regulations), and all variances and exceptions granted with respect
thereto; all governmental approvals necessary to acquire, construct and equip
the Project have been obtained when needed; all site plans have been approved
and all construction plans have been approved by the appropriate Governmental
Authority and no building moratoria are in effect relating to the Project Site;
all building permits have been issued by the appropriate Governmental Authority
with respect to the construction of the Project when needed; no appeal has been
filed with respect to any applicable zoning laws, ordinances, rules or
regulations or with respect to the issuance of such
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building permits; and there is no existing, threatened or pending action, suit,
proceeding, inquiry or investigation wherein an unfavorable decision, ruling or
finding would in any way have an adverse effect on the Project, or its existing
or intended use, or the repayment of the Notes or the Obligations.
(g) The Company is in compliance with all applicable
governmental laws and regulations applicable to the conduct of its business and
the operation of the Project, the noncompliance with which would have a
Material Adverse Effect.
(h) All of the Financing Documents and Note Documents to
which the Company is a party have been duly authorized, executed and delivered
by the Company, constitute valid and legally binding obligations of the Company
and are fully enforceable against the Company in accordance with their
respective terms.
(i) The execution, delivery and performance by the Company of
the Financing Documents and Note Documents will not: conflict with or result in
a breach of any of the terms, conditions or provisions of the articles of
incorporation or bylaws of the Company or any of its Affiliates; result in a
breach of any governmental requirement applicable to the Company or any of its
Affiliates; conflict with, result in a breach of or require consent under any
agreement, instrument or indenture to which the Company or any of its
Affiliates is a party, or by which any of them or any of their property is
bound, or constitute (with notice, lapse of time, or both) a default
thereunder; result in the creation or imposition of any lien (other than the
Lien created by or under the Financing Documents) upon any of the property or
assets of the Company or any of its Affiliates; or result in or require the
acceleration of any Indebtedness of the Company or any of its Affiliates.
(j) Except as described in the Loan Agreement, there are no
actions, claims, suits or proceedings pending, or, to the knowledge of the
Company, threatened against or directly involving the Company, at law or in
equity or before or by any Governmental Authority. The Company has received no
notice that it is in default with respect to any governmental requirement or
any judgment, order, writ, injunction, decree, rule, award or regulation of any
Governmental Authority.
(k) The Company is not in default under any contract,
agreement, commitment or other instrument which default would have a Material
Adverse Effect on the Company, or in the performance of any covenants or
conditions respecting any of its Indebtedness. No holder of any Indebtedness of
the Company has given notice of any asserted default thereunder. No liquidation
or dissolution of the Company and no receivership, insolvency, bankruptcy,
reorganization or other similar proceeding relative to the Company or its
properties is pending or, to the knowledge of the Company, is contemplated or
threatened against it.
(l) All financial and other information heretofore furnished
to the Credit Institution concerning the Company and the Guarantors is complete
and correct and fairly presents the financial position of the Company and the
Guarantors. There are no liabilities, direct or indirect, fixed or contingent,
of the Company and the Guarantors except as reflected therein. There has been
no Material Adverse Change in the financial condition or operations of the
Company and the Guarantors since the most recent date as of which such
financial information has been furnished to
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the Credit Institution (and to the Company's knowledge no such Material Adverse
Change is pending or threatened). Neither the Company nor any of the Guarantors
have guaranteed the obligations of, or made any investment in or advances to,
any person except as disclosed in such financial and other information provided
to the Credit Institution. Each of the Company and the Guarantors has good and
marketable title to all of its and their properties and assets, and all of such
properties and assets are free and clear of encumbrances, except as reflected
in such financial information.
(m) Neither the Company nor any of the Guarantors is in
default in the payment of the principal of or interest on any of its or their
Indebtedness for borrowed money, nor is the Company or any of the Guarantors in
default under any provision of any instrument under or subject to which any
Indebtedness for borrowed money has been incurred, and no event has occurred
and is continuing under the provisions of any such instrument that with the
lapse of time or the giving of notice, or both, would constitute an event of
default thereunder.
(n) No information (financial or otherwise) furnished by or
on behalf of the Company in connection with the negotiation of the issuance of
the Letter of Credit or the issuance of the Notes contains any untrue statement
of a material fact or omits a material fact necessary to make such information
not misleading. There is no fact that the Company has not disclosed to the
Credit Institution that materially adversely affects or so far as the Company
can now foresee based on facts known to it, and based on opinions of the
Company's directors, officers, employees, agents and advisors concerning such
facts, will materially adversely affect the properties, business, prospects,
profits or condition (financial or otherwise) of the Company and the
Guarantors, the ability of the Company to acquire, construct, equip and operate
the Project, or the ability of the Company and the Guarantors to perform their
respective obligations under the Financing Documents.
(o) The Company is not a party to, or bound by, any contract,
the performance by Company under which would have a Material Adverse Effect.
(p) Every draw under the Letter of Credit shall constitute,
without the necessity of specifically containing a written statement, a
representation and warranty by the Company that no Default or Event of Default
exists and that all representations and warranties by the Company contained in
this Agreement, the Note Documents and the other Financing Documents are true
and correct as of the date the advance is to be made.
(q) The proceeds of the Notes will be used by the Company
only for the purposes set forth herein and in the other Financing Documents and
Note Documents. The Company's uses of the proceeds are, and continue to be,
legal and proper corporate uses, and the uses are and will be consistent with
all applicable laws and regulations, as in effect from time to time. None of
the proceeds of the Notes will be used for the purposes of purchasing or
carrying any "margin stock" as defined in Regulation U, Regulation X, or
Regulation G of the Code of Federal Regulations, Parts 221, 224, and 207,
respectively, or for the purpose of reducing or retiring any Indebtedness which
was originally incurred to purchase or carry "margin stock," or for any other
purpose which might cause this transaction to be deemed a "purpose credit"
within the meaning given in Regulation U, Regulation X or Regulation G. The
Company is not engaged in the business of extending credit
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for the purpose of purchasing or carrying margin stocks. The Company, or any
Person acting on behalf of the Company, has not taken and will not take any
action which might cause any violation of Regulation U, Regulation X, or
Regulation G or any other regulations of the Board of Governors of the Federal
Reserve System or any violation of Section 8 of the Securities Exchange Act of
1934 or any rule or regulation thereunder as now or hereafter in effect.
(r) All tax returns required to be filed by the Company in
any jurisdiction have been filed and all taxes, assessments and other
governmental charges on the Company or on any of its respective properties,
income or franchises were paid timely, except for taxes contested in good faith
by appropriate legal proceedings for which reserves have been established in an
amount determined in accordance with GAAP. Other than current real estate taxes
and special assessments, there is no proposed tax assessment against the
Company, and there is no basis for any such assessment. No extension of time
for assessment or payment of any tax by the Company is in effect. The tax
returns of the Company have not been audited.
(s) The Company has not incurred any accumulated unfunded
deficiency within the meaning of ERISA, or incurred any liability to the PBGC
(or any successor thereto) established under ERISA in connection with any Plan
established or maintained by the Company or any other member of a Controlled
Group, and no Reportable Event (as defined in ERISA) has occurred or is
occurring.
(t) The Company is not, and no Person having "control" (as
that term is defined in U.S.C. Section 376(b)(5) or in regulations promulgated
pursuant thereto) of such Person is, an "executive officer," "director," or
"principal shareholder" (as those terms are defined in U.S.C. Section 375(b) or
in regulations promulgated pursuant thereto) of the Credit Institution, or of
any bank at which the Credit Institution maintains a "correspondent account" (as
such term is defined in such statute or regulations), or of any bank which
maintains a correspondent account with the Credit Institution.
(u) The Company has complied with, and will continue to comply
with, the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. Section
200, ET SEQ., as amended from time to time (the "FLSA"), including specifically,
but without limitation, 29 U.S.C. Section 215(a). This representation and
warranty, and each reconfirmation hereof, shall constitute written assurance
from the Company, given as of the date hereof and as of the date of each
reconfirmation, that the Company has complied with the requirements of the FLSA.
(v) To the best knowledge of the Company and except as
disclosed in writing to the Credit Institution, the operations of the Company
have been and are conducted in a manner such that said operations have not
created any level of regulatory concern with Environmental Laws or harm or
potential harm to third parties from material violation of any Environmental
Laws. The Company has obtained all material governmental authorizations under
Environmental Laws necessary to its operations, and all such governmental
authorizations are in good standing, and the Company is in compliance with all
material terms and conditions of such governmental authorizations.
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(w) The Company has not received: (i) any notice or claim to
the effect that it is or may be liable to any person as a result of or in
connection with any Hazardous Materials, or (ii) any letter or request for
information under Section 104 of CERCLA or comparable state laws, and, to the
best of the Company's knowledge, none of the operations of the Company have
been subject to any federal or state investigation relating to or in connection
with any Hazardous Materials at any location.
(x) None of the operations of the Company is or will be
subject to any judicial or administrative proceeding alleging the violation of
or liability under any Environmental Law which, if adversely determined, could
have a Material Adverse Effect on the Company. The Company and its facilities
or operations are not subject to any outstanding written order or agreement
with any Governmental Authority or private party relating to any Environmental
Laws.
(y) The Company has no contingent liability in connection
with any Release of any Hazardous Materials in a reportable quantity by the
Company.
(z) Except as previously disclosed in writing to the Credit
Institution, neither the Company, nor to the best knowledge of the Company, any
predecessor of the Company, has filed any notice under any Environmental Laws
indicating past or present treatment or Release of Hazardous Materials in a
reportable quantity at any property owned, leased, operated, or used by the
Company, and none of the Company's operations involves the generation,
transportation, treatment, storage, or disposal of Hazardous Materials in a
manner which violates any Environmental Laws.
(aa) Except as previously disclosed in writing to the Credit
Institution, to the best of the Company's knowledge, no Hazardous Materials
exist on, under, or about any property owned, leased, operated, or used by the
Company in a manner that has a reasonable possibility of giving rise to any
Environmental Claim that could have a Material Adverse Effect. The Company has
not filed any notice or report of the Release of any Hazardous Materials that
has a reasonable possibility of giving rise to any Environmental Claim that
could have a Material Adverse Effect. Except as disclosed in writing to the
Credit Institution, neither the Company nor, to the best knowledge of the
Company, any of its predecessors entitled to the real property encumbered by
the Mortgage has disposed of any Hazardous Materials in a manner that has a
reasonable possibility of giving rise to an Environmental Claim that could have
a Material Adverse Effect.
(bb) Except as previously disclosed in writing to the Credit
Institution, to the best of the Company's knowledge no underground storage
tanks or subsurface impoundments are on or at any property owned, leased,
operated, or used by the Company. To the best of the Company's knowledge, and
after reasonable inquiry, no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been attached to
any property owned, leased, operated, or used by the Company.
(cc) The Company is not an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company.
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(dd) The Company is solvent, and, after consummation of this
Agreement, the other Financing Documents and the Note Documents and the
contemplated transactions hereunder and thereunder, the Company will be
solvent.
(ee) All of the representations and warranties by the Company
shall survive delivery of this Agreement, the other Financing Documents and the
Note Documents. Any investigation at any time made by or on behalf of the
Credit Institution will not diminish the Credit Institution's right to rely on
the representations and warranties set forth herein and therein.
(ff) The Construction Contract is in full force and effect.
No event has occurred and is continuing under the provisions of the
Construction Contract that with lapse of time or giving of notice, or both,
would constitute an Event of Default thereunder.
(gg) The Company (a) has initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors and customers) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Company or any of its Subsidiaries (or suppliers,
vendors and customers) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (b) will by March 31, 1999 have developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (c) will
implement that plan in accordance with that timetable. Based on the foregoing,
the Company believes that all computer applications (including those of its
suppliers, vendors and customers) that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all dates before
and after January 1, 2000 (that is, be "Year 2000 compliant").
Section II.2 LETTER OF CREDIT COMMITMENT.
(a) Subject to the terms and conditions set forth in this
Agreement, the Credit Institution agrees to issue its Letter of Credit, in the
form of Exhibit A hereto, in the original Stated Amount.
(b) The Letter of Credit will expire three (3) years from the
date the Notes are issued (unless 120 days prior to such expiration date the
Credit Institution notifies the Company (at the Credit Institution's sole
discretion) that the Letter of Credit will be renewed for an additional
one-year period), unless earlier terminated as provided in the Letter of
Credit. If the Company desires to request that the Credit Institution extend
the expiration date of the Letter of Credit beyond February 22, 2002, or beyond
any Stated Expiration Date to which the Letter of Credit has been previously
extended, the Company must send a written request for such extension to the
Credit Institution on or before ninety (90) days prior to the then Stated
Expiration Date of the Letter of Credit. The Credit Institution agrees that, if
it receives such a written request for an extension of the Letter of Credit
from the Company on or before ninety (90) days prior to the then Stated
Expiration Date of the Letter of Credit, the Credit Institution will, subject
to the next succeeding sentence, consider such request in good faith and notify
the Company in writing, on or before forty-five (45) days prior to the then
Stated Expiration Date of the Letter of Credit, whether the Credit Institution
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will or will not agree to the requested extension. The Company acknowledges and
agrees that the Credit Institution shall have no obligation to extend the
Letter of Credit beyond February 22, 2002, and that the decision whether to
agree to any requested extension of the Stated Expiration Date of the Letter of
Credit shall be made by the Credit Institution in its sole discretion.
Section II.3 CONDITIONS PRECEDENT TO ISSUANCE OF THE LETTER OF CREDIT.
It is a condition precedent to the obligation of the Credit Institution to
issue the Letter of Credit that it shall have received each of the following
documents or other items in form and substance satisfactory to the Credit
Institution, and, in the case of appraisals, environmental reports, insurance
and architectural certifications and the like, prepared by professionals
satisfactory to the Credit Institution; or if any such item shall be waived by
the Credit Institution as a condition to the issuance of the Letter of Credit
such item shall, at the option of the Credit Institution, be a condition to the
Credit Institution's approval of any requisition of moneys from the
Construction Fund to pay any Cost of the Project under Section 4.07 of the
Indenture:
(a) Certified copies of the articles of incorporation, bylaws
and resolutions of, and incumbency certificates for, the Company and its
officers, accompanied by an opinion of Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.,
counsel to the Company, in form and substance reasonably satisfactory to the
Credit Institution, including but not limited to an opinion to the effect that
the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, the Notes are validly issued
pursuant to the terms of the Indenture, and that the Financing Documents, the
Note Documents and any other documents to which the Company is a party and
relating to the financing of the Project, have been duly authorized, executed
and delivered by the Company and constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms except as
enforceability may be limited by public policy, bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable principles relating to or
limiting creditors' rights generally and except as rights of indemnification
relating to liability under federal and state securities laws may be limited by
applicable law;
(b) Copies of the fully executed Financing Documents and Note
Documents;
(c) An ALTA lender's title insurance policy (the "TITLE
POLICY") on the Project and Project Site from Attorney's Title Insurance Fund,
Inc. with minimum coverage in an amount not less than the original Stated
Amount of the Letter of Credit. The Title Policy shall insure that the Mortgage
in favor of the Credit Institution is a first lien on the Project and Project
Site subject only to such exceptions as are Permitted Encumbrances and shall
contain such endorsements and affirmative coverage as shall be requested by the
Credit Institution;
(d) Evidence that the Mortgage has been recorded in the
office of land records for real property located in Broward County, Florida;
(e) An opinion of ▇▇▇▇ & Valentine, counsel to the
Remarketing Agent, in form and substance satisfactory to the Credit
Institution;
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(f) A current boundary survey of the Project and the Project
Site on which the Project is to be constructed certified to the Credit
Institution using the Credit Institution's certification language and otherwise
acceptable to the Credit Institution, which survey shall be prepared in
accordance with the minimum technical standards of Florida and certified by a
certified Florida land surveyor, shall indicate the absence of any
encroachments and shall designate, without limitation, (i) the boundaries of
the Project Site, (ii) the location of the buildings and the other improvements
constituting the Project to be constructed thereon, (iii) the location of all
items shown as exceptions to title on the Title Policy, including, without
limitation, all easements of record affecting the Project or the Project Site,
specifying the holder of each such easement and the pertinent recordation
information, (iv) any and all building restrictions and/or setback lines, (v)
all easements for ingress and egress across adjoining properties, and (vi) the
location of all utilities, whether above or below ground;
(g) An "as built" and "stabilized" appraisal of the Project
by an appraiser engaged by the Credit Institution in form and substance
satisfactory to the Credit Institution based on an internal review by the
Credit Institution of the data, assumptions and conclusions found in the
appraisal and which satisfies all applicable regulations of bank regulatory
agencies having jurisdiction over the Credit Institution;
(h) An environmental engineer's phase I and II audit report,
as deemed necessary by the Credit Institution, addressing environmental matters
and reflecting the degree to which the Project Site is free of Hazardous
Materials and toxic substances and otherwise complying with the requirements of
the Commitment Letter;
(i) The Corporate Guaranty fully executed and in original
form has been delivered to the Credit Institution;
(j) Opinions of counsel, acceptable to the Credit
Institution, to the effect that each of the Guaranties is the legal, valid and
binding agreement of the respective Guarantor, enforceable in accordance with
its terms and with respect to the Guarantors, such entities have the ability to
borrow money for and guarantee debt of, the Company.
(k) Evidence satisfactory to the Credit Institution that all
utilities (including drainage both onsite and offsite) necessary for the
occupancy, use and operation of the Project are available to and adequate for
the Project, that the Project is or can be connected thereto without further
governmental approvals and that all requisite tap-on and connection fees have
been or will be paid.
(l) A detailed cost-breakdown of the Project showing the
intended use of the proceeds of the Letter of Credit (cost-breakdown should
include all direct and indirect cost items associated with the construction and
financing of the Project, including but not limited to the amounts allocated to
pay the costs of issuing the Notes and the amount allocated to pay capitalized
interest during construction) in form and substance acceptable to the Credit
Institution (the "COST CERTIFICATE").
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(m) Evidence satisfactory to the Credit Institution that the
Project complies and will comply with all applicable zoning and subdivision
ordinances, building codes and other governmental laws and regulations.
(n) A soil engineer's report relating to the Project
acceptable to the Credit Institution.
(o) Subject to Section 3.02(b) hereof, payment to the Credit
Institution in cash of all fees due the Credit Institution including all
reasonable attorneys' fees and expenses which are due on the Date of Issuance
under Section 3.02 hereunder; and
(p) Such other documents as may have been reasonably
requested by the Credit Institution.
Section 2.04 PROVISIONS REGARDING APPROVAL OF REQUISITIONS
AND DISBURSEMENTS FROM CONSTRUCTION FUND.
(a) The Company acknowledges and agrees that it shall have no
right to receive any disbursement from the Construction Fund unless it has
submitted a requisition to the Credit Institution in substantially the form
attached to the Indenture as Exhibit C relating to that disbursement and such
requisition has been approved by the Credit Institution as evidenced by its
execution thereof (the "REQUISITION"). The Company further agrees that it will
not submit any Requisition to the Trustee unless such Requisition has first
been submitted to the Credit Institution and approved by the Credit
Institution. Upon approval of the Requisition by the Credit Institution (which
approval shall be subject to fulfillment of the conditions listed herein), the
Credit Institution shall submit the Requisition directly to the Trustee on
behalf of the Company.
(b) Each Requisition shall be submitted by the Company to the
Credit Institution at least ten (10) Business Days prior to the date on which
its approval is desired. The Credit Institution shall not be required to
approve a Requisition more often than once each calendar month.
(c) Prior to approval by the Credit Institution of the first
requisition submitted by the Company, the following conditions precedent must
be satisfied unless waived by the Credit Institution in its sole and absolute
discretion:
(i) Evidence satisfactory to the Credit Institution that
the Mortgage has been recorded in Broward County, Florida, and that a title
commitment has been issued in a form satisfactory to the Credit Institution;
(ii) Evidence satisfactory to the Credit Institution
that all insurance required by the terms of the Commitment Letter and/or
Mortgage to be in place at the time of the first Requisition is in effect. The
Credit Institution reserves the right to require certifications regarding other
insurance required by the terms of the Commitment Letter and/or Mortgage as a
condition of approval of subsequent Requisitions.
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(iii) The Credit Institution shall have received a copy
of the site plan of the Project which site plan shall have been approved by all
governmental agencies having jurisdiction over the Project, along with a
complete and final set of working plans and specifications which have been
approved by the Credit Institution, initialed for identification by the
Company, the Project Manager, and the architect for the Project and assigned to
the Credit Institution in form and substance satisfactory to the Credit
Institution. Any and all subsequent changes to the plans and specifications
must be approved by the Credit Institution (which approval shall not be
unreasonably withheld) and any governmental agencies having jurisdiction over
the Project whose approval may be required by applicable federal, state or
local laws, rules or regulations. Unless waived by the Credit Institution, all
such plans and specifications shall have been approved, prior to approval of
the first Requisition, by all necessary governmental agencies.
(iv) The Credit Institution shall have received copies
of the Company's contract with the Project Manager and the Company's contract
with the architect for the Project. The Project Manager, the architect for the
Project and the terms and conditions of their respective contracts must be
acceptable to the Credit Institution. The Construction Contract (and any
specified subcontracts) and the architect's contract shall be assigned to the
Credit Institution pursuant to the terms of the Assignment Agreement, as
additional security for the Company's obligations under this Agreement with the
concurrence of the Project Manager (and subcontractors) and the architect to
continue to perform under the contracts for the Credit Institution or its
assigns if the Company should default under the Financing Documents, the
Construction Contract (or subcontract) or the architect's contract, provided
that the Project Manager (and subcontractors) and the architect continue to be
paid in accordance with their respective contracts.
(v) The architect for the Project shall certify that the
hard costs set forth in the Cost Certificate and all updates thereof are fair
and reasonable and that the Cost Certificate and all updates thereof include
all items necessary to complete the Project fully in accordance with the final
approved plans and specifications. The Company shall also provide the Credit
Institution with copies of all executed contracts and material subcontracts and
a final construction budget and draw a schedule prepared by the Project Manager
and accepted by the Company. For the purpose of the preceding sentence, the
term "material subcontracts" shall mean any subcontract wherein the Company is
obligated to pay more than $100,000.00 thereunder.
(d) The Credit Institution shall have no obligation to
approve any Requisition unless, in connection with the Requisition, it has
received (i) if requested by the Credit Institution, copies of all contracts,
invoices, ▇▇▇▇▇▇▇▇, paid receipts and other documents which relate to that
portion of the construction of the Project for which the Requisition was
submitted and support the amount of the Requisition, (ii) appropriate
construction lien waivers from the general contractor and each subcontractor
performing work or providing materials to be paid from the proceeds of the
Requisition, (iii) contractor's requisition forms which have been appropriately
signed by both the Project Manager and the architect and notarized, (iv) title
updates in form and substance satisfactory to the Credit Institution, and (v)
such other documents and agreements as may be requested by the Credit
Institution.
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(e) If in the reasonable determination of the Credit
Institution the unpaid balance of the cost to complete the Project at any time
exceeds the balance remaining in the Construction Fund, the Company shall, if
requested by the Credit Institution as a condition to approval of further
Requisitions, pay to the Trustee for deposit into the Construction Fund cash in
an amount that together with the amount of other undisbursed funds in the
Construction Fund equals the amount necessary to complete the Project. If the
actual costs within one of the cost categories set forth in the Cost
Certificate should be less than the allocated amount, at the Credit
Institution=s sole option, the additional funds may be allocated to other
categories as deemed appropriate by the Credit Institution. If the actual or
anticipated costs within any of such cost categories shall exceed the allocated
amount, further Requisitions for such costs need not be approved by the Credit
Institution until any costs or anticipated costs in excess of such projected
amounts shall be paid in cash by the Company to the Trustee for deposit into
the Construction Fund.
(f) The Credit Institution may withhold approval of any
Requisition or any part of any Requisition requesting a disbursement from the
Construction Fund, or terminate or limit payments by the Trustee from the
Construction Fund, on account of (i) the occurrence of Default or an Event of
Default hereunder, (ii) defective work with respect to the construction of the
Project not remedied to the satisfaction of the Credit Institution after notice
and opportunity to cure has been given, or work not performed in a good and
workmanlike fashion in all material respects in accordance with the approved
plans and specifications, (iii) claims or Liens filed by contractors, builders
or materialmen in connection with the construction of the Project that are not
bonded to the satisfaction of the Credit Institution within the time period
prescribed by the Credit Institution, or evidence indicating, in the opinion of
the Credit Institution, the probable filing of claims or Liens, (iv) failure or
inability of the Project Manager to make payments to subcontractors or for
materials or labor, (v) in the reasonable opinion of the Credit Institution,
the Project cannot be fully completed and all bills paid from funds not yet
disbursed from the Construction Fund or otherwise available to the Company,
(vi) failure of the Company to repair any damage to the Project, or any part
thereof, to the reasonable satisfaction of the Credit Institution within the
time period prescribed by the Credit Institution, (vii) condemnation of, or the
pendency of condemnation proceedings against the Project or any part thereof,
or (viii) the filing of a petition in bankruptcy by or against the Company, or
any Guarantor. To the extent that the above grounds are removed and no Default
or Event of Default otherwise exists hereunder, the Credit Institution shall
approve Requisitions for funds withheld solely because of such grounds.
(g) No Requisition shall be approved unless all work done in
the construction and equipping of the Project to the date of such Requisition
has been done in a good and workmanlike manner, as determined by the Credit
Institution.
(h) Except as provided in the next succeeding sentence, no
Requisition shall be approved for materials stored on the Project site unless
approved by the Credit Institution in its sole discretion on a case by case
basis. If materials are suitably stored on the Project site, insured and the
cost thereof does not exceed 10% of the Cost Certificate, the Credit
Institution agrees not to withhold approval of the Requisition submitted for
payment of such materials if all other conditions precedent for approval of
such Requisition are satisfied.
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(i) No Requisition shall be approved if any of the
conditions set forth in Section 2.03 hereof are no longer satisfied, as
determined in the sole discretion of the Credit Institution.
Section 2.05 FOUNDATION SURVEY. Within thirty (30) days after a
request from the Credit Institution, the Company shall provide to the Credit
Institution a foundation survey of the Project meeting the minimum technical
standards of Florida prepared and certified by a licensed certified Florida
land surveyor with an updated certification, showing all improvements then
constructed thereon and all horizontal lengths of all sides and relation
thereof by distances to (a) all boundary lines of the Project Site and service
easements, (b) all established building lines, and (c) all street lines,
certified to the Credit Institution using the Credit Institution=s
certification language and otherwise acceptable to the Credit Institution.
Section 2.06 COST-BREAKDOWN UPDATES. As requested by the Credit
Institution from time to time as construction of the Project progresses, the
Company shall provide to the Credit Institution periodic updates of the Cost
Certificate for the Project.
Section 2.07 CONSENT TO FINAL DISBURSEMENT FROM THE CONSTRUCTION FUND.
The Credit Institution shall have no obligation to approve the Requisition
requesting the final disbursement from the Construction Fund unless the Credit
Institution shall have received each of the following documents in form and
substance satisfactory to the Credit Institution:
(a) An as-built survey of the Project meeting the minimum
technical standards of Florida certified to the Credit Institution using the
Credit Institution=s certification language and otherwise acceptable to the
Credit Institution.
(b) A copy of the certificate of occupancy for the Project
issued by the appropriate Governmental Authority and a certificate of
completion signed by the Company, the Project Manager, and the architect
stating that the Project has been properly completed in accordance with the
final approved plans and specifications and that the Project is operable and is
otherwise in form and substance satisfactory to the Credit Institution.
(c) Final construction lien waivers from the Project Manager
and each subcontractor in form and substance satisfactory to the Credit
Institution.
(d) A final title update in form and substance satisfactory
to the Credit Institution.
(e) Such other documents, agreements and other items as are
reasonably requested by the Credit Institution.
Section 2.08 CAPITALIZED INTEREST. Notwithstanding the conditions for
approval of a Requisition set forth in Section 2.04 hereof, the Company is
authorized to allow the Trustee, without the necessity of a Requisition, to
release moneys on deposit in the Construction Fund for reimbursement to the
Credit Institution for payment under the Letter of Credit for an A Drawing,
provided the amount released to reimburse the Credit Institution does not
exceed the amounts set forth in the cost breakdown for capitalized interest
provided to Credit Institution pursuant to Section
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2.03(l) hereof, unless a greater amount is first approved by the Credit
Institution. Notwithstanding the foregoing, such amounts will not be released
without the written approval of the Credit Institution in the event the amounts
remaining in the Construction Fund are insufficient to complete the Project.
ARTICLE III
REIMBURSEMENT OBLIGATION;
OTHER PAYMENTS; LETTER OF CREDIT FEES
Section 3.01 REIMBURSEMENT AND OTHER PAYMENTS.
(a) The Company hereby agrees to establish an
interest-bearing escrow account with the Credit Institution known as the
▇▇▇▇▇▇▇▇▇ Industries, Inc. Reimbursement Account (the "REIMBURSEMENT ACCOUNT")
and to pay to the Credit Institution (and the Credit Institution is hereby
authorized to deduct from any and all operating accounts maintained by the
Company with the Credit Institution) the following amounts in the manner and at
the times set forth below:
(i) Any amounts in the appropriate subaccount of the
Reimbursement Account on the date any payment is due under any subparagraph
hereof shall be credited against the amount due. Any balance remaining in the
Reimbursement Account after the Termination Date and the payment of all
Obligations of the Company due the Credit Institution hereunder and under all
of the other Financing Documents and the Note Documents shall be paid to the
Company.
(ii) On or before the first Business Day of each month,
beginning in the first month prior to the earlier of the date amounts in the
Construction Fund are no longer available, or amounts in the Construction Fund
are no longer authorized to be used to reimburse the Credit Institution for an
"A Drawing" pursuant to the provisions of the last sentence of Section 2.08,
the Company shall deposit an amount equal to the Interest Requirement in the
interest subaccount of the Reimbursement Account and the Company shall, on the
first Business Day of each month thereafter, pay the Credit Institution for
deposit in the interest subaccount of the Reimbursement Account an amount equal
to the "A Drawing" made in the previous month, in order to reimburse the Credit
Institution for the amounts it advanced under an "A Drawing", which amounts
when paid by the Company shall be deposited in the interest subaccount of the
Reimbursement Account. The amounts received by the Credit Institution pursuant
to this subparagraph shall be deposited in the interest subaccount of the
Reimbursement Account and shall be debited by the Credit Institution as
necessary to reimburse the Credit Institution for an "A Drawing".
(iii) Each January 15 (or the next succeeding Business
Day) during the term of this Agreement, the Company shall pay the Credit
Institution for deposit in the principal subaccount of the Reimbursement
Account the amounts the Credit Institution will be required to advance under
each "A Drawing" on the next succeeding interest payment date for the Notes in
accordance with the provisions for optional redemptions set forth in Schedule
3.01(a) attached hereto, which amounts shall not be less than the amount shown
on Schedule 3.01(a) for such interest payment date. The principal amounts
received by the Credit Institution pursuant to this subparagraph shall be
deposited in the principal subaccount of the Reimbursement Account and shall
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be debited by the Credit Institution as necessary to reimburse the Credit
Institution for an "A Drawing" in connection with an optional redemption of the
Notes. In the event the Trustee credits the amount to be drawn under the Letter
of Credit for any principal payment made otherwise than from a draw on the
Letter of Credit, a corresponding credit shall be granted to the Company for
the amounts due hereunder. The Company hereby covenants to give the Trustee
written instructions by January 1 (or the next succeeding Business Day) to give
notice of optional redemption of the Notes in the manner provided in the
Indenture for the optional redemption of the Notes, in part, on each February 1
(or the next succeeding Business Day) as shown on Schedule 3.01(a) during the
term of this Agreement. Subject to credits available to the Company described
in the next preceding sentence, unless waived by the Credit Institution in a
writing delivered to the Trustee prior to the date notice of optional
redemption is given, the minimum amount of each optional redemption described
above shall be the amount shown on Schedule 3.01(a).
(b) In the event of a "B Drawing" under the Letter of Credit
to purchase Notes for the account of the Company pursuant to optional or
mandatory tenders under the provisions of the Indenture, the Company shall
continue to make the payments required by subparagraph (a)(iii) above, and such
payments shall be applied first to optionally redeem Notes purchased with the
proceeds of such "B Drawing" and held for the account of the Company or the
Credit Institution as of any optional redemption date provided for in the
Indenture. The Company shall cause all amounts received from the remarketing of
such Notes prior to any optional redemption date provided for in the Indenture
to be paid to the Credit Institution to reimburse it for the amount of such "B
Drawing." On the Termination Date, the Company shall pay the Credit Institution
the aggregate amount of any and all "B Drawings" that have not been previously
reimbursed, subject to the applicable interest charges described herein for
such late reimbursement and subject to a credit for any amounts available
therefor in the principal subaccount of the Reimbursement Account.
(c) In the event of a "C Drawing" under the Letter of Credit
to make payments due on the Notes as a result of any other redemption or
acceleration of the Notes as provided in the Indenture, the Company shall by no
later than 12:00 noon (Dallas, Texas time) on the day of such "C Drawing" pay
to the Credit Institution an amount sufficient to reimburse the Credit
Institution for such "C Drawing" to the extent funds are not available in the
principal subaccount of the Reimbursement Account to cover such "C Drawing"
reimbursement.
(d) In the event of a "B Drawing" under the Letter of Credit
pursuant to subparagraph (b) above, the Company shall pay the Credit
Institution interest on the entire amount of such "B Drawing" at the Prime Rate
from the date of the draw until such amount is reimbursed in full, which
interest shall be payable in arrears on the first Business Day of each month,
on the Termination Date or on an earlier date of reimbursement pursuant to
Section 3.06 hereof; provided, however, that if an Event of Default occurs
hereunder prior to the date the entire amount of such "B Drawing" has been
reimbursed in full, then from and after the date of such Event of Default such
unreimbursed amount shall bear interest at the lesser of the maximum rate
permitted by law or eighteen percent (18%) per annum until it has been repaid
in full.
(e) In the event, if as a result of an "A Drawing," the
Credit Institution pays any amount under the Letter of Credit in excess of the
amount in the Reimbursement Account applied
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to reimburse the Credit Institution therefor, the Company shall upon demand
immediately reimburse the Credit Institution for such amount. Any amounts not
so paid shall bear interest at the lesser of the maximum rate permitted by law
or eighteen percent (18%) per annum, which interest shall be payable on demand
and failure to so reimburse shall be an Event of Default hereunder.
(f) In the event the payments required by subparagraph (c),
or (e) above and (h) or (i) below are not made on the due date thereof, it
shall be an Event of Default hereunder and the Company shall pay the Credit
Institution interest on such outstanding amounts from the due date thereof
until such amounts are paid in full at the lesser of the maximum rate permitted
by law or eighteen percent (18%) per annum and failure to so reimburse shall be
an Event of Default hereunder.
(g) In the event the Credit Institution holds Notes pursuant
to the provisions of Section 3.06 hereof as pledgee or for its own account
pursuant to a "B Drawing" and it receives payment in full for such Notes and
for all amounts due to it under this Agreement, the Credit Institution shall
release such Notes to the Fiscal Agent as provided in the Indenture.
(h) The Company shall pay the Credit Institution upon each
transfer of the Letter of Credit in accordance with its terms to any new
Trustee appointed under the Indenture, such amount (and interest on such amount
at the Prime Rate) as shall at the time of any transfer then be the charge
which the Credit Institution is customarily making for transfer of similar
letters of credit.
(i) The Company shall pay the Credit Institution on demand
any and all reasonable charges and expenses, including reasonable legal fees
(and interest on such amounts at the Prime Rate), which the Credit Institution
may pay or incur relative to the Letter of Credit or in reviewing,
interpreting, administering or enforcing any of its rights or responsibilities
under this Agreement or the other Financing Documents.
Section 3.02 FEES.
(a) On the Date of Issuance, the Company shall pay to the
Credit Institution a one-time internal construction administration fee of
$5,000.00. In addition to any other fees payable to the Credit Institution, the
Company shall pay to the Credit Institution a fee with respect to the Letter of
Credit equal to one percent (1%) per annum of the Initial Stated Amount of the
Letter of Credit for the first year and of the Stated Amount of the Letter of
Credit then in effect for each year thereafter as it is reduced from time to
time by virtue of an "A Drawing" to redeem the principal of the Notes but not
"B Drawings" to purchase Notes subject to optional or mandatory tender and as
so determined on the date each fee payment is due. The full amount of such fee
shall be paid by the Company in advance for each year (except for the payment
due on the Date of Issuance) or portion of a year that the Letter of Credit is
outstanding (beginning on the Date of Issuance and each Anniversary Date
thereof) from the Date of Issuance until the Termination Date. The fee (herein,
the "LETTER OF CREDIT FEE") shall be prepaid in full no later than fifteen (15)
days prior to the first and each successive Anniversary Date, and in all cases
shall be deemed earned upon receipt by the Credit Institution. Except as
provided in the next succeeding sentence, there shall be no refund of any
portion of such prepaid fee by reason of expiration, reduction,
recertification, termination,
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redemption or prepayment of any of the Stated Amount, the Letter of Credit or
the Notes subsequent to the date of receipt of such fee by the Credit
Institution. Notwithstanding the next preceding sentence, if the Obligations
under this Agreement shall ever be recast as a new loan with Credit
Institution, the Company shall receive a pro rata credit for any fees that have
been paid in advance as described above.
Section 3.03 SUPPLEMENTAL PAYMENTS.
(a) If after the Date of Issuance (i) the Credit Institution
determines or acquiesces in the determination by a court or administrative or
Governmental Authority that its obligations under this Agreement or the Letter
of Credit are a deposit insured by the Federal Deposit Insurance Company
(AFDIC@) or (ii) the Credit Institution determines that any law or regulation,
or any change in any law or regulation or in the interpretation thereof by any
court or administrative or Governmental Authority charged with the
administration thereof shall either (A) impose, modify or deem applicable any
insurance (including, without limitation, FDIC insurance), reserve, capital
adequacy, special deposit or similar requirement for or against letters of
credit issued or assets held by, or deposits in or for the account of, the
Credit Institution or (B) impose on the Credit Institution any other condition
regarding this Agreement or the Letter of Credit, including any relating to
capital adequacy, and the result of any event referred to in clause (a)(i) or
(ii) above shall be to increase the cost to the Credit Institution of issuing
or maintaining the Letter of Credit (which increase in cost shall be the result
of the Credit Institution's reasonable allocation of the aggregate of such cost
increases resulting from such events and shall be calculated without giving
effect to any participation granted in the Letter of Credit) then, upon demand
by the Credit Institution, the Company shall immediately pay to the Credit
Institution all additional amounts which are necessary to compensate the Credit
Institution for such increased cost incurred by the Credit Institution. A
certificate as to such increased cost incurred by the Credit Institution as a
result of any event referred to in clause (a)(i) or (ii) above submitted by the
Credit Institution to the Company shall be conclusive, absent manifest error,
as to the amount thereof.
(b) The Company shall also pay interest on such increased
costs at the highest rate of interest permitted from time to time by applicable
law from the date of such change until such amount is paid in full.
Section 3.04 COMPUTATION OF INTEREST: FORM AND PLACE OF PAYMENT. The
interest payable hereunder shall be computed on the basis of the actual number
of days elapsed over a year of 365 days or 366 days, as applicable. If the
Prime Rate changes, the interest rate on all amounts due hereunder shall be
adjusted on the day of each change in the Prime Rate. All payments by the
Company to the Credit Institution hereunder shall be made in lawful currency of
the United States and in immediately available funds on the date such payment
is due at the Credit Institution's office at Letter of Credit Department, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
Section 3.05 SECURITY FOR REIMBURSEMENT OBLIGATIONS.
(a) As security for the payment of all of its Obligations
under this Agreement, whether now existing or hereafter arising, the Company
shall grant to the Credit Institution a first
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lien on, and first priority assignment of and security interest in, the
Project, all leases of and rents derived from the Project pursuant to the
Mortgage and other Financing Documents and hereby grants to the Credit
Institution a first priority assignment of and security interest in the other
Collateral described in the Financing Documents in the manner provided therein.
(b) The Company hereby pledges, assigns, hypothecates,
transfers, and delivers to the Credit Institution all its right, title and
interest in and to the Reimbursement Account and hereby grants to the Credit
Institution a lien on, and security interest in, the Company's right, title and
interest in and to the Reimbursement Account and in all proceeds thereof and
substitutions therefore as additional collateral security for the prompt and
complete payment when due of all amounts due from the Company to the Credit
Institution and performance by the Company of its Obligations under this
Agreement and the other Financing Documents and Note Documents.
Section 3.06 ACQUISITION OF NOTES.
(a) In the event the Remarketing Agent is able to remarket
any Notes as of the date of any "B Drawing" and the proceeds of such
remarketing are paid to the Credit Institution on the date of such drawing, the
Credit Institution shall relinquish any interest it may have had in the Notes
purchased with the proceeds of such drawing but only to the extent of such
payment, and the Trustee and the Fiscal Agent shall deliver Notes, in a
principal amount equal to the amount so paid, to the purchasers of such Notes
free of any claim of the Credit Institution.
(b) Subject to the provisions of this Agreement, in the event
that as of the date of any "B Drawing", the Remarketing Agent has been unable
to remarket any or all Notes that were subject to either optional or mandatory
tender, a principal amount of Notes equal to the amount owed the Credit
Institution for such "B Drawing" shall immediately as of such date become, and
be deemed to be, held by the Credit Institution as pledgee of the Company (or,
at the option of the Credit Institution upon prior written notice to the
Company, the Trustee and the Fiscal Agent, for its own account), and the
Company hereby pledges to the Credit Institution, and grants the Credit
Institution a security interest in, all Notes so purchased for the account of
the Company with the proceeds of a "B Drawing". The Company hereby irrevocably
agrees that any Notes purchased with proceeds of a "B Drawing" shall not be
extinguished or discharged until all Obligations of the Company relating to
such "B Drawing" are paid and satisfied and the Notes are otherwise canceled
under the terms of the Indenture.
(c) Upon notice to the Credit Institution that any of the
Notes held by the Credit Institution as pledgee or for its own account are to
be remarketed and upon payment to the Credit Institution of the proceeds
thereof and all accrued interest which is due the Credit Institution on the "B
Drawing" used to purchase such Notes, the Credit Institution shall release to
the Trustee and the Fiscal Agent, for delivery to the purchasers thereof, a
principal amount of Notes equal to the principal amount of such payment from
the proceeds of the remarketing thereof, free of any pledge or ownership
interest of the Credit Institution.
(d) The obligations of the Credit Institution hereunder shall
remain in effect until the Termination Date.
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(e) All amounts paid to the Credit Institution by the Company
on Notes held by the Credit Institution as pledgee or for its own account shall
be credited against amounts due from the Company under Section 3.01 (b) and (d)
hereof.
ARTICLE IV
COVENANTS OF THE COMPANY; OTHER AGREEMENTS
Section 4.01 SPECIAL COVENANTS OF COMPANY. All covenants of the
Company in the other Financing Documents and the Note Documents to which it is
a party, to the extent not inconsistent herewith, are incorporated herein by
reference and shall be deemed thereby to have been made and reaffirmed by the
Company for the benefit of the Credit Institution as if they were fully set
forth herein. The Company shall give the Credit Institution written notice
prior to any amendment of the Financing Documents that affects any covenants of
the Company; all such amendments shall be incorporated herein as if set forth
herein. The Company hereby further covenants and agrees that until the
Termination Date and payment to the Credit Institution of all amounts due and
performance of all other Obligations of the Company under the Financing
Documents and the Note Documents to which it is a party, it shall comply with
the following additional affirmative and negative covenants, unless the Credit
Institution shall otherwise consent in writing:
(a) ACCESS TO PROJECT AND RECORDS. The Company shall at any
reasonable time and from time to time, upon reasonable prior notice from the
Credit Institution, permit the Credit Institution or any agents or
representatives thereof (i) to examine and make copies of and abstracts from
all relevant records and books of account of the Company, (ii) to discuss all
relevant affairs, finances and accounts of the Company with any of its officers
so designated by the Company to provide such information, and (iii) to inspect
the Project. ANY APPROVAL BY THE CREDIT INSTITUTION OF ANY PLANS AND
SPECIFICATIONS RELATING TO THE PROJECT AND ANY INSPECTIONS OF THE PROJECT BY
THE CREDIT INSTITUTION SHALL IN NO WAY CONSTITUTE A WARRANTY TO ANY PARTY AS TO
THE TECHNICAL SUFFICIENCY OR ADEQUACY OF THE CONSTRUCTION OF THE PROJECT, OR
THE STRUCTURAL, SOIL OR, ENVIRONMENTAL CONDITIONS OF THE FACILITIES.
(b) PREPAYMENT OF OBLIGATIONS. In addition to the Company's
optional redemption of the Notes pursuant to Section 3.01(a)(iii) hereof, the
Company may cause, at any time, any optional prepayment of the Obligations as
may be permitted under the Financing Documents and direct any corresponding
optional redemption of Notes as may be permitted under the Indenture by
providing the Credit Institution with notice of the desired prepayment and by
making satisfactory arrangements with the Credit Institution for reimbursing
the Credit Institution in full for the "A Drawing" on the Letter of Credit
necessary to effect such redemption of the Notes by no later than the date on
which the Trustee first sends notice thereof to the owners of the Notes.
Thereupon the Credit Institution shall notify the Trustee to begin redemption
proceedings and to draw on the Letter of Credit as required by the Indenture.
Notwithstanding the foregoing, the Company may not prepay the Obligations (and
direct a corresponding optional redemption of the Notes) in part from proceeds
of an insurance recovery or condemnation award with respect to the Project
unless the Company has first obtained the prior written consent of the Credit
Institution.
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(c) NOTICE OF DEFAULTS. The Company shall promptly notify the
Credit Institution of any default by the Company under any of the Financing
Documents or any filing by or against the Company of a petition in bankruptcy
or any similar insolvency proceeding.
(d) NOTICE OF LITIGATION. The Company shall promptly inform
the Credit Institution of any litigation, the adverse determination of which
might have a Material Adverse Effect with respect to the payment of the Notes,
the performance of the Company's Obligations under the Financing Documents, or
the operation of the Project.
(e) COMPLIANCE WITH LAWS: PAYMENT OF OBLIGATIONS. The Company
shall comply with all valid and applicable statutes, rules and regulations, and
shall pay all taxes, assessments, governmental charges, claims for labor,
supplies and rent, and other obligations which, if unpaid, might become a Lien
against the Project (except liabilities being contested in good faith and
against which, if requested by the Credit Institution, the Company shall set up
reserves satisfactory to the Credit Institution).
(f) SALE OR LEASE OF THE PROJECT. The Company shall not sell,
lease or otherwise assign any interest in the Project or any portion thereof to
any Person.
(g) OPERATING LICENSES. The Company shall comply, and shall
cause each of the Affiliates to comply, with all applicable rules and
regulations of regulatory authorities having jurisdiction over the Project and
shall maintain all licenses necessary to operate the Project.
(h) YEAR 2000 COMPLIANCE. The Company shall promptly notify
the Credit Institution in the event the Company discovers or determines that
any computer application (including those of its suppliers, vendors and
customers) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 compliant (as defined in Section 2.01 (gg)).
(i) AMENDMENT OF FINANCING DOCUMENTS. The Company shall not
amend or consent to the amendment of any of the Financing Documents without the
prior written consent of the Credit Institution.
(j) SUBSTITUTE LETTER OF CREDIT. Except during any period a
default or event of default under any Financing Documents has occurred and is
continuing the Company shall be authorized to provide a Substitute Letter of
Credit for the Notes.
(k) CERTIFICATE AS TO NO DEFAULT. The Company shall furnish
to the Credit Institution within 120 days after the close of each of its fiscal
years a certificate signed by the President and the Chief Financial Officer of
the Company stating that during such fiscal year and as of the date of such
certificate no event or condition has happened or existed or is happening or
existing, which constitutes a default or event of default under any Financing
Documents or with notice or lapse of time or both would be an Event of Default,
or if such an event or condition has occurred or is occurring, specifying the
nature and period of such event or condition and what action the Company has
taken, is taking and proposes to take with respect thereto.
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(l) PRINCIPAL AMOUNT OF THE NOTES. The Company agrees that
the principal amount of the Notes will not exceed 75% of the lesser of the
appraised value or the cost of the property covered by the Project. The Company
shall demonstrate compliance with this covenant on a quarterly basis. The "cost
of the property" shall mean the purchase price of the Project Site plus the
amount of the construction cost through and after completion of construction.
Section 4.02 CONTINUOUS OBLIGATIONS: OBLIGATIONS ABSOLUTE. This
Agreement is a continuing obligation and shall (a) be binding upon the Company,
its successors and assigns, and (b) inure to the benefit of and be enforceable
by the Credit Institution and its successors, transferees and assigns; provided
that the Company may not assign all or any part of this Agreement without the
prior written consent of the Credit Institution. The obligations of the Company
under this Agreement shall be paid or performed strictly in accordance with the
terms of this Agreement under all circumstances whatsoever, and shall be
absolute, irrevocable, and unconditional.
Section 4.03 TRANSFER OF LETTER OF CREDIT. The Letter of Credit may be
transferred in accordance with the provisions set forth therein and upon any
transfer the Company shall pay the Credit Institution its then applicable
transfer fee.
Section 4.04 REDUCTION AND REINSTATEMENT OF STATED AMOUNT OF LETTER OF
CREDIT. The reduction and reinstatement of the Stated Amount by virtue of
drawings under the Letter of Credit shall be as provided therein.
Section 4.05 SURVIVAL OF COMMITMENT. The terms and conditions of the
Commitment Letter shall survive the issuance of the Letter of Credit to the
extent they are not inconsistent with the terms of this Agreement or the other
Financing Documents (which shall control to the extent of any inconsistency),
and failure to comply therewith shall constitute a Default hereunder.
Section 4.06 TERMINATION OF LOAN AGREEMENT. If the Loan Agreement is
not renewed or extended, or is terminated before maturity during the term of
the Letter of Credit, the Company shall within forty-five (45) days of such
termination redeem all outstanding Notes and reimburse the Credit Institution
in full for all amounts owing by the Company to the Credit Institution. Failure
to fulfill this covenant shall constitute an Event of Default under this
Agreement.
ARTICLE V
DEFAULTS AND REMEDIES
Section V.1 EVENTS OF DEFAULT. Unless waived by the Credit Institution
pursuant to Section 5.02 hereof, the following shall constitute an Event of
Default under this Agreement:
(a Any representation or warranty made in this Agreement, in
any certificate, report or opinion (including legal opinions), financial
statement or other instrument furnished in connection with this Agreement or
any of the other Financing Documents or in any of the Note Documents to which
the Company is a party proves to have been untrue or incomplete in any material
respect when made;
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(b) The Company fails to pay on the date on which the same is
due and payable as herein provided any payment required by this Agreement to be
paid by the Company and such default shall continue unremedied for five (5)
Business Days provided the Credit Institution has provided written notice to
the Company of such nonpayment; provided however, that the Credit Institution's
failure to give notice of nonpayment shall not toll the five (5) day grace
period if in fact (as determined by admission of an officer of the Company or
by a court of competent jurisdiction), an officer of the Company had
independent actual notice of such nonpayment, and provided further that no
additional grace period shall apply in the event of a violation of Section 4.06
hereof;
(c) If, for any reason (other than release by the Credit
Institution), the Mortgage or any other Financing Document ceases to be in full
force and effect and the same is not cured within fifteen (15) days after
written notice thereof from the Credit Institution to the Company;
(d) The Company defaults in the due and punctual observance or
performance of any other term, covenant or agreement herein contained (other
than as specified in subsection (b) of this Section), which default remains
unremedied for thirty (30) days (or such other cure period as may be specified
herein) after written notice from the Credit Institution to the Company of such
breach or such longer period as may be permitted by the Credit Institution in
its reasonable discretion if such breach cannot be cured within such thirty
(30) day period, and the Company has commenced to cure such breach within such
thirty (30) day period and continues to cure such breach with due diligence;
(e) The Company is dissolved;
(f) Any judgment against the Company or any attachment or
levy against the property of the Company which involves potential liability of
the Company or any affiliate in an amount in excess of $300,000.00 individually
or $1,000,000.00 in the aggregate not adequately insured or indemnified
against, remains unpaid, unstayed on appeal, undischarged or undismissed for a
period of thirty (30) days or such longer period that may be permitted by the
Credit Institution in its reasonable discretion if such breach or such longer
period that may be permitted by the Credit Institution in its discretion if
such breach cannot be cured within such thirty (30) day period, and the Company
has commenced to cure such breach within such thirty (30) day period and
continues to cure such breach with due diligence;
(g) An "event of default" or "Event of Default" occurs under
any of the other Financing Documents or the Note Documents;
(h) The Company shall fail to make any payment due from it on
any indebtedness or other security for borrowed money in excess of
$1,000,000.00 in aggregate principal amount then outstanding beyond any
applicable cure period (whether its liability therefor is direct or
contingent), or if any event (other than the mere passage of time) or any
condition in respect of any indebtedness or other security for borrowed money
of the Company in excess of $1,000,000.00 in aggregate principal amount then
outstanding (whether its liability therefor is direct or contingent) or under
any agreement securing or relating to such indebtedness or other security for
borrowed money shall occur the effect of which, after the giving of any
required notice and the expiration of any applicable cure
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period, is to cause (or permit any holder of such indebtedness or other
security or a trustee to cause) such indebtedness or other security, or a
portion thereof, to become due prior to its stated maturity or prior to its
regularly scheduled dates of payment, or if any such indebtedness or other
security for borrowed money otherwise is accelerated and becomes due prior to
its stated maturity or prior to its regularly scheduled dates of payment;
(i) The determination by the Credit Institution in good faith
that a Material Adverse Effect has occurred in the financial condition of the
Company or any Guarantor, and such adverse change in financial condition is not
remedied to the satisfaction of the Credit Institution within fifteen (15) days
after written notice from the Credit Institution to the Company and/or any
Guarantor that the Credit Institution has made such a determination;
(j) (i) Failure of the Company or any Guarantor to pay
generally its debts as they become due, (ii) commencement by the Company or any
Guarantor of a voluntary case under the Bankruptcy Code, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, (iii) consent by the Company or any Guarantor to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for the Company or any Guarantor or any
substantial part of its property, or to the taking possession by any such
official of any substantial part of the property of the Company or any
Guarantor, (iv) making by the Company or any Guarantor of any assignment for
the benefit of creditors, or (v) taking of action by the Company or any
Guarantor in furtherance of any of the foregoing;
(k) The (i) entry of any decree or order for relief by a court
having jurisdiction over the Company or any Guarantor or the property of any of
them in an involuntary case under the Bankruptcy Code, as now or hereafter
constituted, or any other applicable federal or state bankruptcy insolvency or
other similar law, (ii) appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official for the Company or any
Guarantor or any substantial part of the property of any of them, or (iii)
entry of any order for the termination or liquidation of the Company or any
Guarantor;
(l) Failure of the Company or any Guarantor within sixty (60)
days after the commencement of any proceedings against it under the Bankruptcy
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, to have such proceedings dismissed or stayed;
(m) Notwithstanding the provisions of Section 6.09 hereof, any
material provision of this Agreement at any time for any reason ceases to be
valid and binding on the Company, or is declared to be null and void, or the
validity or enforceability thereof is contested by the Company or any
governmental agency or authority, or the Company denies that it has any or
further liability or obligation under this Agreement or any of the other
Financing Documents; or
(n) Any "event of default" occurs under any loan or financing
agreement where the lender is the Credit Institution and the borrower or the
guarantor is either the Company or the Guarantors, including without limitation
the Loan Agreement.
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Upon the occurrence of an Event of Default under this Agreement, the
Credit Institution, by notice to the Company, may (in its sole discretion) but
shall not be obligated to (i) declare all amounts outstanding and payable by
the Company under this Agreement to be forthwith due and payable, and the same
shall thereupon become immediately due and payable without demand, presentment,
protest or further notice of any kind, all of which are hereby expressly waived
and (ii) pursue any other remedy permitted to the Credit Institution under the
Financing Documents under any other collateral agreements securing the
Company's obligations hereunder, or at law or in equity, including but not
limited to directing the Trustee to accelerate and make a Default Drawing under
the Letter of Credit to pay or purchase the Notes in accordance with Sections
8.02 and 8.03 of the Indenture. Upon the occurrence of an Event of Default
hereunder, the Credit Institution may also exercise any right of a secured
party under the UCC of the State of Florida as to (i) any Notes held by it as
pledgee pursuant to a "B Drawing", (ii) the collateral in the Reimbursement
Account, and (iii) the other Collateral.
Section 5.02 NO WAIVER: REMEDIES CUMULATIVE. No failure by the Credit
Institution to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Agreement preclude any other further exercise
thereof or the exercise of any other right. No waiver under this Agreement
shall be valid unless in writing signed by the Company and the Credit
Institution, and, unless otherwise specified in such waiver, shall be effective
only in the specific instance and for the specific purpose for which given and
shall not preclude the right of the Credit Institution to require strict
compliance with the terms hereof in any subsequent instance, whether similar or
dissimilar. The remedies in this Agreement are cumulative and not exclusive of
any remedies provided by law.
ARTICLE VI
MISCELLANEOUS
Section 6.01 RIGHT OF SET-OFF. In addition to any other right or
remedy that the Credit Institution may have by operation of law or otherwise,
upon the occurrence of any Event of Default under this Agreement the Credit
Institution shall be entitled to exercise its banker's lien upon and its right
to setoff any and all balances, credits, deposits, accounts or moneys at any
time held and other indebtedness at any time owing by the Credit Institution to
or for the credit or account of the Company and apply the same against the
payment of any and all of the obligations of the Company now or hereafter
existing under this Agreement or any of the other Financing Documents.
Section 6.02 LIABILITIES. All acts, including any failure to act,
relating to the Project and the issuance of the Notes and the Letter of Credit
by any director, officer, employee, agent, representative or designee of the
Credit Institution are performed solely for the benefit of the Credit
Institution to assure repayment of the Company's obligations to the Credit
Institution hereunder and under the other Financing Documents are not for the
benefit of the Company or the benefit of any other person. Under no
circumstances whatsoever shall the Credit Institution, its directors, officers
or employees, be deemed to assume any responsibility for, or obligation or duty
with respect to, any part or all of the collateral of any nature or kind
whatsoever, or in any matter or proceedings arising out of or relating thereto.
The Credit Institution shall not be required to take any action of any kind to
collect or protect any interest in the collateral, including but not limited
to, the taking of any action
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necessary to preserve the Credit Institution, the Company or rights against
prior parties to any of the collateral. To the extent permitted by law, the
Credit Institution shall not be liable or responsible in any way for the
safekeeping, care or custody of any of the collateral, for any loss or damage
thereto or for any diminution in the value thereof, or for any act or default
of the Company or any of their agents or any third party, but the safekeeping
shall be at the Company's sole risk at all times. Neither the Credit
Institution nor any of its directors, officers or employees shall be liable or
responsible for: (a) the use which may be made of the Letter of Credit or
moneys drawn thereunder or for any acts or omissions of the Trustee and any
beneficiary in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (c) payment by the Credit Institution
against presentation of documents provided such documents on their face appear
to be in order and in compliance with the Letter of Credit; and (d) any other
circumstances whatsoever in making or failing to make payment under the Letter
of Credit, except only that the Company shall have a claim against the Credit
Institution, and the Credit Institution shall be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential,
damages suffered by the Company which the Company proves were caused by (i) the
Credit Institution's negligence in determining whether documents presented
under the Letter of Credit comply with the terms of the Letter of Credit or
(ii) the Credit Institution's willful failure to pay under the Letter of Credit
after the presentation to it by the Trustee or a successor trustee of a sight
draft and certificate strictly complying with the terms and conditions of the
Letter of Credit (absent issuance of a court order purporting to enjoin such
payment). In furtherance and not in limitation of the foregoing, the Credit
Institution 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.
Section 6.03 CONSENT TO SERVICE OF PROCESS. The Company hereby
consents to process being served in any suit, action, or proceeding instituted
in connection with this Agreement, the other Financing Documents and any
related documents by (i) the mailing of a copy thereof by certified mail,
postage prepaid, return receipt requested, to the Company at the address
provided in Section 6.08 hereof; and (ii) serving a copy thereof upon ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, who is the agent irrevocably designated and appointed by the Company
as the Company's agent for service of process by or pursuant to the provisions
hereof. The Company irrevocably agrees that upon receipt of both such notices,
such notices shall be deemed to be service of process upon the Company in any
such suit, action or proceeding. Nothing in this paragraph shall affect the
right of the Credit Institution to serve process in any manner otherwise
permitted by law.
Section 6.04 ESTOPPEL CERTIFICATE. The Company will, upon not less
than ten (10) days' request by the Credit Institution, execute, acknowledge and
deliver to the Credit Institution or to such other person(s) as the Credit
Institution shall identify a statement in writing, certifying (a) that this
Agreement is unmodified and in full force and effect and the payments required
by this Agreement to be paid by the Company have been paid, and (b) the then
unpaid principal balance of the Obligations arising hereunder; and stating
whether or not to the knowledge of the signer of such certificate any party to
any of the Financing Documents or the Note Documents, is in default in the
performance of any covenant, agreement or condition contained therein and, if
so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant to this section may
be relied upon by the Credit Institution and such other person(s) to whom such
statement is made.
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Section 6.05 AMENDMENTS. No provision hereof shall be modified,
altered or limited except by written instrument expressly referring to this
Agreement and to the provisions that are modified, altered or limited, and
executed by the parties to this Agreement.
Section 6.06 SUCCESSORS. This Agreement shall inure to the benefit of
and shall be binding upon each successor or assign of each party and shall
continue in full force and effect until the Credit Institution shall no longer
be bound to fund under the Letter of Credit and the Company shall have paid all
amounts due hereunder and under the other Financing Documents or the Note
Documents, and complied with all other provisions and conditions herein and
therein.
Section 6.07 FEES AND EXPENSES: EXPENSES OF COLLECTION. The Company
shall pay all fees of the Trustee, the Fiscal Agent, the Placement Agent and
the Remarketing Agent and shall pay all fees and expenses of, or reimburse the
Credit Institution for amounts therefor paid by it to, all appraisers
(regardless of whether engaged by the Company or the Credit Institution),
engineers, surveyors, environmental auditors, architects, title insurers and
counsel performing services for the Trustee, the Company, the Fiscal Agent, the
Placement Agent, the Remarketing Agent and the Credit Institution and counsel
to the Remarketing Agent with respect to or in any way connected with the
issuance of the Notes, the Financing Documents, the Note Documents and the
transactions contemplated thereby. The Company agrees to pay all expenses,
including reasonable attorneys fees, which are incurred or paid by the Credit
Institution in administering this Agreement, determining its rights and
responsibilities hereunder and under the other Financing Documents and the Note
Documents and collecting any amounts due it or protecting or enforcing any of
its rights hereunder and thereunder, and notwithstanding any disposition of any
collateral securing the Credit Institution hereunder and thereunder, the
Company shall pay to the Credit Institution any deficiencies which remain after
such disposition. In addition, the Company shall pay any and all stamp,
recording, transfer and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and any recording of
any Financing Documents and the Note Documents and agrees to save the Credit
Institution harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and fees.
The Company shall pay any brokerage fees or commissions arising from the
issuance of the Notes and the Letter of Credit and shall defend, indemnify, and
hold the Credit Institution harmless against any and all expenses, liabilities
and losses arising from such claims in connection therewith.
Section 6.08 NOTICES. All demands, notices, approvals, consents,
requests and other communications provided for hereunder shall be in
electronic, telephonic or written (including bank wire, telegram, telecopier,
telex or similar writing) form and shall be given to the party to whom sent,
addressed to it, at its address or telephone, telecopier or telex number set
forth below or such other address or telephone, telecopier or telex number as
such party may hereafter specify for the purpose by notice to the other party
set forth below. Each such notice, request or communication shall be effective
(a) if given by telephone, telex, telecopier or other electronic means, when
such communication is transmitted to the address specified below and any
appropriate answerback is received, (b) if given by mail, three (3) Business
Days after such communication is deposited in the
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38
mails with first class postage prepaid, addressed as aforesaid, or (c) if given
by any other means, when delivered at the address specified below:
(i) if to the Company:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ March, Esq.
Akerman, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Credit Institution:
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
NationsBank Business Credit
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NationsBank, N.A.
Letter of Credit Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
35
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40
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
English, ▇▇▇▇▇▇▇▇▇ & O=▇▇▇▇▇, P.A.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
or (iv) in either of the foregoing cases, at such other address or telex,
telecopier, bank wire or telephone number as the addressee may hereafter
specify for the purpose in a notice to the other party specifically captioned
"Notice of Change of Address pursuant to Section 6.08 of the Letter of Credit
Reimbursement Agreement."
Section 6.09 SEVERABILITY. If any term of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity of all other terms hereof
shall in no way be affected thereby.
Section 6.10 ASSIGNMENT. This Agreement may not be assigned by the
Company without the prior written consent of the Credit Institution.
Section 6.11 PARTICIPATIONS. The Company recognizes that the Credit
Institution or a participant may sell and transfer interests in the Letter of
Credit to one or more participants or subparticipants and that all
documentation, financial statements, appraisals and other data, or copies
thereof, relevant to the Company or the Letter of Credit may be exhibited to
and retained by any such participant or subparticipant whether actual or
prospective.
Section 6.12 COUNTERPARTS. This Agreement may be executed by the
parties in counterparts and each such counterpart shall be deemed to be an
original, but both such counterparts shall together constitute but one and the
same Agreement.
Section 6.13 RULE OF CONSTRUCTION. As to the rights and obligations of
the Company and the Credit Institution against and to each other, the
provisions of this Agreement shall control to the extent they are inconsistent
with the provisions of the Indenture, or any other Financing Agreement or Note
Document.
Section 6.14 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Florida.
Section 6.15 PREAMBLE: PRELIMINARY RECITALS. The Preliminary Recitals
set forth in the Preamble are hereby incorporated and made part of this
Agreement.
Section 6.16 INDENTURE. The Credit Institution and the Company
acknowledge and consent to the provisions of the Indenture.
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Section 6.17 CREDIT INSTITUTION REPRESENTATION. Notwithstanding
anything to the contrary that may be contained in the Commitment Letter, this
Agreement, the other Financing Documents or the Note Documents or in any
written or oral communication, neither the issuance of the Letter of Credit nor
the consideration to be received for the same is conditioned upon the
appointment of the Credit Institution or any of its Affiliates serving as
Remarketing Agent, Placement Agent or in any other capacity with respect to the
Notes. The Company hereby acknowledges that the foregoing representation of the
Credit Institution is true and correct.
Section 6.18 CONSENT TO JURISDICTION: WAIVER OF JURY TRIAL.
(a) The Company hereby agrees and consents that any action or
proceeding arising out of or brought to enforce the provisions of this
Agreement, the other Financing Documents, the Note Documents and any related
documents may be brought in any appropriate court in Broward County, Florida,
and by the execution of this Agreement the Company irrevocably consents to the
jurisdiction of such courts in Broward County, Florida. The Company irrevocably
waives, to the fullest extent permitted by law, any objection that the Company
may now or hereafter have to the laying of the venue of any such suit, action,
or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any court in which the Company is subject to jurisdiction by
a suit upon such judgment provided that service of process is effected upon the
Company as provided in this Agreement or as otherwise permitted by applicable
law.
(b) WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF, THE COMPANY
AGREES THAT NEITHER THE COMPANY NOR ANY OF ITS ASSIGNEES OR SUCCESSORS (ALL OF
WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING DOCUMENTS
OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF
THEM. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A
JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THIS WAIVER IS KNOWINGLY, VOLUNTARILY AND INTENTIONALLY MADE BY
COMPANY, AND THE COMPANY HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR
OPINION HAVE BEEN MADE BY ANY INDIVIDUAL OR ENTITY TO INDUCE THIS WAIVER OR
TRIAL BY JURY OR TO IN ANY MODIFY OR NULLIFY ITS EFFECT. THE COMPANY FURTHER
REPRESENTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES WITH CREDIT INSTITUTION, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. THE CREDIT INSTITUTION HAS IN NO WAY AGREED WITH OR REPRESENTED TO
ANY OF THE PARTIES THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
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WITNESS the following signatures, all as of the date first above
written.
Attest: ▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ By: /s/
-------------------------------- ------------------------------
Title: Secretary Title: Chief Financial Officer
----------------------------- ---------------------------
Attest: NATIONSBANK, N.A.
By: /s/
-----------------------------
Title: Senior Vice President
--------------------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
THE FOREGOING INSTRUMENT was acknowledged before me this 19 day of
February, 1999, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ the CFO of ▇▇▇▇▇▇▇▇▇ Industries, Inc., a
Delaware corporation, on behalf of the Company. He/she is personally known to
me or produced FL DL as identification.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Notary Public, State of Florida
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
My Commission Expires:
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STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD)
THE FOREGOING INSTRUMENT was acknowledged before me this 19th day of
February, 1999, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as SVP of NationsBank, N.A., a national
banking association, on behalf of the Credit Institution. He/she is personally
known to me or produced FLDL as identification.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Notary Public, State of Florida
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
My Commission Expires:
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SCHEDULE 3.01(A)
OPTIONAL REDEMPTIONS
▇▇▇▇▇▇▇▇▇ INDUSTRIES
Amortization Schedule:
OUTSTANDING
PERIOD YEAR REDEMPTION BALANCE
---------------------------------------------------------------------------
0 2/22/99 0 6,670,000
1 2/1/00 200,000 6,470,000
2 2/1/01 200,000 6,270,000
3 2/1/02 200,000 6,070,000
4 2/1/03 300,000 5,770,000
5 2/1/04 300,000 5,470,000
6 2/1/05 300,000 5,170,000
7 2/1/06 300,000 4,870,000
8 2/1/07 300,000 4,570,000
9 2/1/08 300,000 4,270,000
10 2/1/09 300,000 3,970,000
11 2/1/10 300,000 3,670,000
12 2/1/11 400,000 3,270,000
13 2/1/12 400,000 2,870,000
14 2/1/13 400,000 2,470,000
15 2/1/14 400,000 2,070,000
16 2/1/15 400,000 1,670,000
17 2/1/16 400,000 1,270,000
18 2/1/17 400,000 870,000
19 2/1/18 400,000 470,000
20 2/1/19 470,000 0
40