EXHIBIT 10.2
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 5, 2001
THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of the date set forth above (the "date hereof") by and among NAP OF THE
AMERICAS, INC., a Florida corporation ("NAPA"), and TERREMARK WORLDWIDE, INC., a
Delaware corporation ("TWW") (each a "Borrower", and collectively, "Borrowers"),
and OCEAN BANK, a Florida-chartered bank ("Bank"). For good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Borrowers and Bank hereby agree as follows:
1. Loan. Subject to and in accordance with the terms and conditions
hereof, Bank shall make, and Borrowers shall accept, a loan (the "Loan") in the
maximum principal amount of Forty Eight Million and No/100 Dollars
($48,000,000.00).
2. Note. The Loan shall be evidenced by, inter alia, a Promissory Note of
even date herewith in the original principal amount of $48,000,000.00 (the
"Note"). The Loan shall bear interest and be payable as specified in the Note.
The Loan may be repaid in full or in part at any time without premium or
penalty. Amounts repaid on the Loan may not be reborrowed.
3. Loan Term. The Loan shall mature eighteen (18) months from date hereof
(the "Stated Maturity Date"), which eighteen (18)-month period is referred to
herein as the "Initial Loan Term". Subject to and in accordance with the terms
and conditions specified in the Note, the Stated Maturity Date may be extended
for one period of nine (9) months (the "First Extended Loan Term") and may be
further extended for one additional period of nine (9) months (the "Second
Extended Loan Term").
4. Commitment Fee. Pursuant to the terms of that certain Commitment Letter
of even date herewith from Bank to Borrowers (the "Commitment Letter"),
Borrowers shall pay to Bank, on the date hereof, a non-refundable commitment fee
of $720,000. Such fee shall be deemed earned by Bank as of the date hereof.
5. Guarantors.
(1) The full payment and performance of the Loan and of all
obligations at any time owed by Borrowers to Bank under this Agreement, the Note
and the other Loan Documents (as hereinafter defined) shall be unconditionally
guaranteed, jointly and severally, by Xxxxxx X. Xxxxxx ("Xxxxxx") and all
subsidiaries of TWW (collectively, the "Subsidiaries"; Xxxxxx and the
Subsidiaries collectively, "Guarantors"), other than NAPA and Coloconnection,
Inc., a Florida corporation ("Coloconnection").
(2) Borrowers represent and warrant to Bank that Coloconnection
does not have any material net worth by reason of the fact that the amount of
indebtedness it owes to Cupertino Electric, Inc. ("Cupertino"), South Bay
Construction, Inc. ("South Bay") and Kinetics Mechanical Services, Inc.
("Kinetics") in connection with Cupertino's, South Bay's, and Kinetics'
construction and equipping of the leasehold estate of Coloconnection at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, is approximately the same as or greater
than the value of Coloconnection's assets. Borrowers acknowledge that Bank has
relied upon the foregoing representation and warranty in making its decision not
to require that Coloconnection be a Guarantor of the Loan.
(3) Borrowers represent and warrant to Bank that, as of the date
hereof, NAPA, Coloconnection and the following entities constitute all of the
Subsidiaries which have material assets:
(1) TECOTA Services Corp., a Delaware corporation
("TECOTA Services");
(2) Terremark Development, Inc., a Florida corporation;
(3) Terremark Financial Services, Inc., a Florida
corporation;
(4) Terremark Fortune House #1, Inc., a Florida
corporation;
(5) Terremark Fortune House #1, Ltd., a Florida limited
partnership;
(6) Terremark Hospitality Services, Inc., a Florida
corporation;
(7) Terremark Latin America, Inc., a Florida corporation;
(8) Terremark Management Services, Inc., a Florida
corporation;
(9) Terremark Northeast, Inc., a New York corporation;
(10) Terremark Realty, Inc., a Florida corporation;
(11) Terremark Technology Contractors, Inc., a Florida
corporation ("Terremark Technology Contractors");
(12) Terremark Trademark Holdings, Inc., a Nevada
corporation;
(13) TerreNAP Data Centers, Inc., a Florida corporation
("TerreNap Data"); and
(14) TerreNAP Services, Inc., a Florida corporation.
(4) Upon any entity (other than a Borrower)'s becoming wholly
owned (or virtually wholly owned) by any Borrower, Borrowers shall notify Bank
of that fact and shall cause such entity to execute and deliver whatever
documents Bank requires to make that entity a Guarantor under this Agreement.
6. Security. All obligations at any time owed by Borrowers to Bank under
this Agreement, the Note and the Loan Documents shall be secured at all times by
the following and the proceeds thereof (collectively, the "Collateral"):
(1) Pursuant to, inter alia, that certain Leasehold Mortgage,
Security Agreement, Assignment of Rents and Leases and Fixture Filing of even
date herewith from NAPA to Bank (the "Mortgage"), a perfected first mortgage and
first security interest in all right, title and interest of NAPA in, to and
under the following (in each case whether now owned or hereafter acquired and
whether now existing or hereafter arising):
(1) that certain Lease Agreement dated as of October 16,
2000, by and between Technology Center of the Americas, LLC, a Delaware limited
liability company ("Technology Center"), as landlord, and NAPA, as tenant,
together with the Basic Lease Information Rider thereto (collectively, the "NAPA
Lease"), which Lease grants and includes, inter alia: (1) the right to use and
occupy the entire second floor, containing approximately 149,184 square feet of
leaseable area, of the building having an address of 00 X.X. 0xx Xxxxxx, Xxxxx,
Xxxxxxx and located on the real property described in Exhibit "A", attached
hereto and incorporated herein by this reference (collectively, the "Property");
(2) the right to use and occupy certain portions of the roof of the Property,
identified in the NAPA Lease as Tenant's Equipment Area, for the placement of
certain equipment and other personal property of NAPA; (3) the right to install
lines, conduits and connections from Technology Center's main fiber duct bank on
the ground level of the Property to the second floor of the Property and to
Tenant's Equipment Area; (4) the right to use riser and chaseway space within
the Property in connection with Tenant's operations as permitted by the
provisions of the NAPA Lease; and (5) such other rights as are granted to NAPA
under or pursuant to the NAPA Lease (collectively, the "Leased Premises");
(2) all furniture, fixtures, furnishings and equipment
and other tangible personal property located on or within, or connected with,
the Leased Premises;
(3) all other tangible and intangible personal property
(including, without limitation, inventory, accounts, documents, chattel paper,
contracts and contract rights, instruments, certificates of deposit, letters of
credit, equipment and equipment leases, software licenses and enhancements
thereof, intellectual property and intellectual property rights, trade names,
trade marks, service marks, and general intangibles) pertaining or related to or
connected with the Property, the Leased Premises and the NAPA Lease (the
foregoing being collectively referred to herein as the "NAPA Facility"), and all
other tangible and intangible personal property of NAPA of any kind or nature
whatsoever, wherever located, whether now owned or hereafter acquired; and
(4) all other collateral referenced or described in the
Mortgage and the other Loan Documents;
(2) Pursuant to, inter alia, that certain Stock Pledge and
Security Agreement of even date herewith from TerreNAP Data, as the owner of all
of the issued and outstanding shares of NAPA, to Bank (the "TerreNAP Data Pledge
Agreement"), a perfected first lien on and first security interest in all stock
issued now or hereafter by NAPA;
(3) Pursuant to, inter alia, that certain Stock Pledge and
Security Agreement of even date herewith from TWW, as the owner of all of the
issued and outstanding shares of TerreNAP Data, to Bank (the "TWW Pledge
Agreement"), a perfected first lien on and first security interest in all stock
issued now or hereafter by TerreNAP Data;
(4) Pursuant to an Assignment of Life Insurance Policy as
Collateral of even date herewith (the "Assignment of $15,000,000 Life Insurance
Policy"), a pledge and collateral assignment of a life insurance policy in the
amount of $15,000,000 owned by TWW, insuring the life of Xxxxxx (the
"$15,000,000 Life Insurance Policy"), issued by a company satisfactory to Bank,
all in form and content satisfactory to Bank. Borrowers and Guarantors
acknowledge and agree that upon the death of Xxxxxx, the proceeds of the
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$15,000,000 Life Insurance Policy shall be automatically applied to the
outstanding principal, interest and other sums payable with respect to the Loan,
in such order of priority as Lender may elect in its sole discretion, regardless
of whether any default or Event of Default exists under the Loan Documents and
regardless of whether such sums would otherwise be due and payable under the
Loan Documents. Notwithstanding the application of such proceeds, Borrowers
shall continue to be obligated to make payments of principal and/or interest
strictly in accordance with the terms of the Loan Documents;
(5) Pursuant to such additional documents as Bank may require,
pledges and collateral assignments of an existing life insurance policy in the
amount of $5,000,000 owned by Terremark, Inc. (the "$5,000,000 Life Insurance
Policy") and an existing life insurance policy in the amount of $2,000,000 owned
by TWW (the "$2,000,000 Life Insurance Policy"), both insuring the life of
Xxxxxx. A $2,000,000 portion of the $5,000,000 Life Insurance Policy was
heretofore pledged as collateral for that certain loan from Bank to
Communications Investors Group, a Florida general partnership, evidenced by that
certain Promissory Note dated March 16, 1999 in the original principal amount of
$4,000,000 (the "CIG Loan"), and the remaining $3,000,000 portion of the
$5,000,000 Life Insurance Policy was heretofore pledged as collateral for that
certain loan from Bank to TWW evidenced by that certain Demand Revolving
Promissory Note dated September 13, 2000 in the original principal amount of
$5,000,000 (the "TWW Loan"). The TWW Loan is to be paid off pursuant to
subsection 8(a) below. In connection with the Loan, the entire $5,000,000 Life
Insurance Policy and the $2,000,000 Life Insurance Policy shall be pledged as
collateral for: (i) the CIG Loan; (ii) a line of credit from Bank to Xxxxxx
evidenced by that certain Revolving Promissory Note dated in March 2000 in the
original principal amount of $7,500,000 (the "Xxxxxx Line of Credit"); and (iii)
the Loan. Bank, Borrowers and Guarantors acknowledge and agree that upon the
death of Xxxxxx, the proceeds of the $5,000,000 Life Insurance Policy and the
$2,000,000 Life Insurance Policy: (i) shall be automatically applied to the
outstanding principal, interest and other sums payable with respect to the CIG
Loan and the Xxxxxx Line of Credit, in such order of priority as Lender may
elect in its sole discretion, regardless of whether any default or Event of
Default exists under the applicable loan documents with respect thereto, and
regardless of whether such sums would otherwise be due and payable under such
loan documents, and (ii) upon full payment of all such sums, shall be
automatically applied to the outstanding principal, interest and other sums
payable with respect to the Loan, in such order of priority as Lender may elect
in its sole discretion, regardless of whether any default or Event of Default
exists under the Loan Documents and regardless of whether such sums would
otherwise be due and payable under the Loan Documents. Notwithstanding the
application of such proceeds, Borrowers shall continue to be obligated to make
payments of principal and/or interest strictly in accordance with the terms of
the Loan Documents;
(6) Assignments of all construction contracts, architect's
agreements and subcontracts and all other rights and interests of NAPA
pertaining to the buildout, furnishing and equipping of the Leased Premises and
the NAPA Facility (collectively, the "Third Party Assignments"), including, but
not limited to, the following:
(1) an Assignment of Construction Contract with respect
to that certain Agreement dated March 29, 2001 (the "Construction Contract")
between NAPA and Terremark Technology Contractors, together with a consent
thereto executed by Terremark Technology Contractors pursuant to which Terremark
Technology Contractors agrees, inter alia, to: (1) assign to Bank, as additional
collateral for the Loan, all of its rights under the Construction Contract,
including rights to payment and lien rights; (2) not to accept any payments for
work heretofore or hereafter furnished; and (3) fully subordinate to the lien of
the Mortgage and other Loan Documents any and all of its lien rights under the
Construction Contract;
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(2) an Assignment of Architect's Agreement with respect
to that certain Agreement dated January 3, 2001 (the "Architect's Agreement")
between NAPA and Bermello, Ajamil & Partners, Inc. (the "Architect"), together
with a consent thereto executed by the Architect (the "Architect's Consent"),
pursuant to which the Architect agrees, inter alia: (1) to fully subordinate to
the lien of the Mortgage and other Loan Documents any and all of its lien rights
under the Architect's Agreement; (2) to permit Bank the unrestricted right to
use the plans and specifications prepared by the Architect, but solely in
connection with the Leased Premises and/or the NAPA Facility, (3) that the list
of Architect's subcontractors attached to the Architect's Consent, and the
amounts due or to become due to each of them, is true, correct and complete in
all respects and; provided, however, that the delivery of such Architect's
Consent shall not be a condition precedent to closing of the Loan or to making
the Initial Advance, but Borrowers shall use their commercially reasonable
efforts to obtain such Architect's Consent and deliver same to Bank within
twenty (20) days after the date hereof; and
(3) assignments of NAPA's rights, title and interest in,
to and under any and all agreements related to work performed on the Leased
Premises or otherwise upon the NAPA Facility by any other parties, including,
but not limited to, Cupertino, Kinetics and Telcordia Technologies, Inc.
("Telcordia"); and
(7) Pursuant to such pledge agreements, security agreements and
other documents as Bank may require, a perfected first priority lien upon and
security interest in all tangible and intangible personal property of each
Guarantor other than Xxxxxx and of TWW, whether now existing or hereafter
acquired.
7. Advances. Subject to the terms, covenants and conditions set forth in
this Agreement, Bank shall disburse the Loan proceeds in advances (the
"Advances"), with the initial advance of Loan proceeds (the "Initial Advance")
being made on the date hereof.
8. Use of Loan Proceeds. The Loan proceeds shall be used only for the
following purposes:
(1) Payment of Certain Existing Loans. As part of the Initial
Advance, a portion of the Loan proceeds will be used: (x) to pay in full all
outstanding principal, accrued interest and other sums owing with respect to
that certain loan from Bank to Xxxxxx evidenced by that certain Promissory Note
dated May 29, 2001 in the original principal amount of $10,000,000 (the "Xxxxxx
$10,000,000 Loan"); and (y) subject to the provisions of subsection 8(a)(ii)
below, to pay in full all outstanding principal, accrued interest and other sums
owing with respect to the TWW Loan.
(1) With respect to the Xxxxxx $10,000,000 Loan, TWW
shall use Loan proceeds either: (x) to pay off same in exchange for the
cancellation of the existing indebtedness of TWW to Xxxxxx in like amount; or
(y) to pay such existing indebtedness to Xxxxxx in full, provided that Xxxxxx
shall use such funds to pay off the Xxxxxx $10,000,000 Loan directly to Bank.
(2) With respect to the TWW Loan, Borrowers shall use a
portion of the Loan proceeds to purchase a time deposit(s) or certificate(s) of
deposit, in such amount as the Bank may reasonably require (but in no event less
than $1,491,225), in order to secure the reimbursement obligations of Borrowers
and two of TWW's subsidiaries, Coloconnection, Inc. ("Coloconnection") and
Terremark Fortune House #2, Ltd. ("Fortune House"), with respect to the
following two (2) letters of credit issued by Ocean Bank in connection
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with the TWW Loan; to-wit: (x) Letter of Credit No. SB516002, in the amount of
$741,225, with Xxxxxxx Xxxxx #0 as applicant, and 405 Lexington LLC, as
beneficiary, expiring June 16, 2002, but automatically renewable each year until
December 31, 2010 (the "Fortune House LC"), and (y) Letter of Credit No.
SB921004, in the amount of $750,000, with Coloconnection, as applicant, and
Rainbow Property Management, LLC, as beneficiary, expiring September 29, 2002,
and automatically renewable each year until September 29, 2010 (the
"Coloconnection LC"). Borrowers shall, and hereby do, absolutely and
unconditionally guarantee the full and timely payment and performance by Fortune
House and Coloconnection of all of their respective reimbursement obligations
under and with respect to the Fortune House LC and the Coloconnection LC
respectively, and hereby pledge the time deposit(s) or certificate(s) of
deposit(s) referred to in this subsection, to secure such guaranty. Borrowers
further agree (x) to execute such additional documents as the Bank may require
from time to time to evidence, secure and/or perfect the Bank's interest in the
foregoing time deposit(s) or certificate(s) of deposit, and (y) that the
Borrowers are and shall be liable to Bank for the full amount payable under the
Coloconnection LC, notwithstanding the Bank's release of Coloconnection pursuant
to that certain Waiver and Release of approximately even date herewith.
(2) Interest Reserve: $6,660,000 of the Loan proceeds (the
"Interest Reserve") will be disbursed from time to time by Bank to pay monthly
interest payments due under the Loan. After the first nine (9) months of the
Initial Loan Term, the Interest Reserve will be disbursed only from and after
the date NAPA achieves annualized revenues of not less than $33,000,000 as shown
on audited financial statements satisfactory to Bank (unless Bank elects, in its
sole discretion, to make such disbursements notwithstanding that such condition
has not been satisfied).
(1) Subject to the provisions of clause (iii) below, Bank
shall, and is hereby authorized to, disburse amounts from the Interest Reserve
in order to enable Borrowers to pay such monthly interest payments as same
become due and payable without any prior notice or request from Borrowers. Upon
disbursement of funds from the Interest Reserve, the amount disbursed shall be
added to the outstanding principal amount of the Loan and shall bear interest at
the rate set forth in the Note.
(2) Upon the occurrence of an Event of Default, Bank
shall have the right, but not the obligation, to continue to disburse payments
of monthly interest installments from the Interest Reserve.
(3) Establishment of the Interest Reserve shall in no way
relieve Borrowers of their obligation to pay interest under the Note in the
event the Interest Reserve is depleted.
(3) Cupertino. As part of the Initial Advance, $6,000,000 of the
Loan proceeds shall be disbursed to pay a portion of the outstanding amounts
owed to Cupertino, subject to the provisions of subsection 10(f) below.
(4) Kinetics. As part of the Initial Advance, $1,000,000 of the
Loan proceeds shall be disbursed to pay a portion of the outstanding amounts
owed to Kinetics, subject to the provisions of subsection 10(g) below.
(5) Working Capital. Provided that no Event of Default then exists
(and no event or circumstance exists which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both), and after
taking into account the uses and allocations of the Loan proceeds described
above and in Section 9 below, the balance of the Loan proceeds, if any, shall be
used for working capital for
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Borrowers.
9. Disbursements to Creditors.
(1) Borrowers represent and warrant to Bank that the creditors
(the "Creditors") identified on Exhibit "B" hereto (excluding amounts claimed to
be due by Telcordia) claim that they are owed $8,106,352.08 in the aggregate
(the "Creditor Balance"), in the amounts specified next to each Creditor's name
on Exhibit "B", it being understood, however, that Borrower disputes certain
amounts claimed to be owed by certain of the Creditors. Borrowers covenant and
agree that within fifteen (15) days after the date hereof, Borrowers shall, out
of Loan proceeds disbursed to Borrowers as working capital, or out of additional
Advances made to Borrower pursuant to Section 12 hereof, make such payments to
Creditors as are necessary to reduce the Creditor Balance to an amount not
exceeding $3,000,000 in the aggregate.
(2) Borrowers further represent and warrant to Bank that (i) the
amount currently claimed by Telcordia to be currently invoiced to and unpaid by
Borrowers (regardless of whether it is currently due and payable), is
approximately $3,506,307 (the "Telcordia Balance"), (ii) Borrowers dispute the
Telcordia Balance and have withheld payment from Telcordia as a result of such
dispute, and (iii) Telcordia does not have, and has never asserted or claimed,
any lien right against any of the Collateral with respect to the Telcordia
Balance, or on account of any other work performed by Telcordia on or with
respect to any of the Collateral.
(3) Borrowers represent and warrant to Bank that the total cost
required to complete all work at, and equip and furnish the NAPA Facility as
contemplated by Borrowers will be approximately $3,000,000, in the aggregate, as
estimated by Borrowers in good faith based on the information known to Borrowers
as of the date hereof. The foregoing sum excludes the Creditor Balance and the
Telcordia Balance as of the date hereof, but includes: (i) all sums for work in
process and materials, supplies, equipment and other items ordered or contracted
for but not yet billed to Borrowers (collectively, "WIP"); plus (ii) all
additional sums for work to be performed and materials, supplies, equipment and
other items to be ordered or contracted for (collectively, "Remaining Work").
Borrower covenants and agree that within thirty (30) days after the date hereof,
Borrowers shall provide Bank with an itemized schedule showing, as of the date
of delivery thereof, the Creditor Balance, WIP and Remaining Work in the
aggregate and for each Creditor or other party performing or to be performing
work or providing or to be providing materials, supplies, equipment and/or other
items for the NAPA Facility, the nature of such work, materials, supplies,
equipment and/or other items, and the respective due dates or anticipated due
dates for payment thereof.
(4) In the event any existing or future Creditor (including
Telcordia) files a claim of lien against any of the Collateral, and such lien is
not paid or otherwise transferred to bond or other security within thirty (30)
days after filing of same, Bank reserves to the right, at its sole option and
election, to disburse such amount of Loan proceeds (either directly to the
lienor or to Borrowers), in order to cause such claim of lien to be released, or
to advance funds for such purposes as a future advance or protective advance
secured by the Mortgage.
(5) Borrower covenant and agree that if Bank at any time gives
Borrowers written notice of any default under the Loan Documents, then from and
after the date of such notice until the default is cured, Borrowers shall not,
without Bank's prior written consent, to be granted or not in Bank's sole and
absolute discretion, make any payments to any Creditors or any other parties who
have performed or are performing
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work or who have providing or are providing materials, supplies, equipment
and/or other items for the NAPA Facility.
10. Documentary Conditions Precedent to Advances. As a condition precedent
to Bank's obligation to make any Advance, Borrowers, at their expense, must have
delivered the following items to Bank, each of which must be satisfactory to
Bank and its counsel in both form and content as determined by Bank in its sole
and absolute discretion:
(1) The following documents:
(1) The Note duly executed by each Borrower.
(2) With respect to each Guarantor, a Guaranty Agreement
duly executed by such Guarantor and such other documents as Bank may require.
(3) The Mortgage duly executed by NAPA.
(4) An Assignment of Leases and Rents and Security
Deposits duly executed by NAPA.
(5) UCC-1 Financing Statements duly executed by Borrowers
and by Guarantors and duly filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in Bank's opinion, desirable, to perfect
the security interests created by the Mortgage and the other Loan Documents.
(6) An Environmental Health and Safety Indemnity
Agreement duly executed by Borrowers and Guarantors.
(7) The TerreNAP Data Pledge Agreement duly executed by
TerreNAP Data.
(8) The TWW Pledge Agreement duly executed by TWW.
(9) The Assignment of $15,000,000 Life Insurance Policy,
duly executed by the owner of the Life Insurance Policy, duly consented to by
the beneficiaries thereof and duly acknowledged by the issuer thereof, and the
original of the $15,000,000 Life Insurance Policy (such acknowledgment by the
issuer and original Life Insurance Policy to be delivered within twenty (20)
days from the date hereof).
(10) Such pledges and collateral assignments as Bank may
require with respect to the $5,000,000 Life Insurance Policy and the $2,000,000
Life Insurance Policy.
(11) All of the Third Party Assignments duly executed by
Borrowers with any consents thereto duly executed by the applicable parties
(Borrowers to use commercially reasonable efforts to obtain and deliver all
required consents within twenty (20) days from the date hereof). (1)
(12) The resignation letter in the form set forth in
Exhibit "C", attached hereto and incorporated herein by this reference, duly
executed by TECOTA Services (the "Resignation Letter").
(13) Assignments of such contracts, deposits and other
rights of Borrowers and/or
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Guarantors as may be required by Bank.
(14) Such documents as Bank may require in order to amend
any and all of the documents (as heretofore amended) which secure, evidence or
are otherwise related to the Existing Loans (as so amended, the "Existing Loan
Documents"), so that the Existing Collateral secures all of Borrowers'
obligations under this Agreement and all other Loan Documents.
(15) Whatever certificates, resolutions and other evidence
Bank may require regarding the due organization and existence of each Borrower
and Guarantor and regarding the authority and power of each to enter into and
perform the Loan Documents and other related documents to which it is a party or
signatory, together with a written list of all owners of a direct or beneficial
interest in Borrowers and all Guarantors, and of the number of shares or
percentage interest owned by each such owner.
(16) Such other approvals, consents, certificates
(including, but not limited to, estoppel certificates from Terremark Technology
Contractors, the Architect and other parties, all to be delivered to Bank within
thirty (30) days from the date hereof), opinions, security agreements and
documents as Bank may request.
All of the foregoing documents, together with the Commitment Letter and
any other documents now or hereafter evidencing, securing or otherwise related
to the Loan, all as same may be substituted, replaced, renewed, split,
consolidated, extended, restated, or otherwise modified or amended from time to
time, are sometimes collectively referred to in this Agreement as the "Loan
Documents".
(2) A fully paid leasehold mortgagee title insurance policy (the
"Title Policy") which shall:
(1) be issued by a title insurance company acceptable to
Bank (the "Title Company") in the 1975 ALTA form (with 1984 Modifications);
(2) provide coverage in an amount not less than
$10,000,000;
(3) insure the lien of the Mortgage as a first lien upon
the NAPA Lease and the Leased Premises, subject to no exceptions other than
those which Bank in its sole discretion may allow, including, if Bank so
approves same in its sole discretion, an exception pertaining to construction
liens that may be claimed by any unpaid Creditors, including any existing claims
of lien shown on the Title Policy and approved in writing by Bank (the
"Construction Lien Exception"); and
(4) provide such other insurance coverages, with such
endorsements, as Bank and its counsel may require;
Borrowers shall satisfy all requirements of the Title Company and/or
Bank with respect to insuring the first lien priority of the Mortgage over any
existing or potential construction liens (subject to any Construction Lien
Exception).
(3) A UCC-11 search showing no filings affecting Borrowers or
Guarantors or their respective interests in the Collateral, except as may be
permitted by Bank in its sole and absolute discretion.
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(4) A true and complete copy of the executed NAPA Lease, together
with: (1)
(1) a duly executed Memorandum of Lease in recordable
form and executed by NAPA and Technology Center;
(2) a Recognition Agreement and Landlord's Consent, Lien
Waiver and Estoppel among NAPA, Lender and Technology Center, pursuant to which
Technology Center agrees to, inter alia: (1) consent to NAPA's granting the
Mortgage and encumbering the NAPA Lease, Leased Premises and other Collateral
thereby; (2) unconditionally subordinate any landlord's or other lien rights it
may have in the Collateral located upon the Property; and (3) grant Bank certain
rights and remedies with respect to the NAPA Lease, including notice and an
opportunity to cure defaults, restrictions on Landlord's termination rights, and
provisions for entering into a new lease under certain circumstances; and
(3) such other consents, approvals, estoppel
certificates, nondisturbance agreements and documents pertaining to the NAPA
Lease as Bank may require.
(5) A subordination to the Loan and the Loan Documents of any
existing and permitted future debt or reimbursement obligations of Borrowers to
any of the stockholders of Borrowers or affiliated parties, on such terms and
conditions as are satisfactory to Bank.
(6) With respect to Cupertino:
(1) True, correct and complete copies of all agreements
with Cupertino, including Borrowers' existing agreement setting forth the terms
and conditions pertaining to the payment of the account payable to Cupertino in
the approximate amount of $21,581,490, together with the written agreement of
Cupertino whereby Cupertino agrees, inter alia, to: (1) accept payment of
$6,000,000 on disbursement of Loan proceeds (as contemplated by subsection 8(c)
above); and (2) accept payment of the remaining balance due of $16,581,490 over
a period of time of not less than five (5) months from the date hereof, and a
written statement from Cupertino certifying that all of Cupertino's
subcontractors have been paid in full, with the exception of a 10% holdback
payable to Hitec, in the approximate amount of $600,000 (collectively, the
"Cupertino Agreement"). The Cupertino Agreement shall be subject to the review
and approval of Bank in its sole discretion.
(2) True, correct and complete copies of the mortgage
being granted by NAPA to Cupertino encumbering the NAPA Lease and the Leased
Premises (the "Cupertino Mortgage") and any and all other documents in favor of
Cupertino encumbering any of the Collateral or otherwise evidencing, securing or
otherwise related to Cupertino Mortgage (collectively, the "Cupertino Mortgage
Documents"). The Cupertino Mortgage and the other Cupertino Mortgage Documents
shall be satisfactory to Bank in all respects in its sole discretion and shall
in no event provide for the encumbrance, pledge or hypothecation of any of the
stock of Borrowers and Guarantors. The Cupertino Mortgage Documents will be
delivered to the Bank for its review and approval within twenty (20) days from
the date hereof, but in all events prior to execution and/or delivery thereof by
Borrower.
(3) A Subordination Agreement in recordable form executed
by Cupertino pursuant to which Cupertino agrees, inter alia: (1) to fully
subordinate any and all existing lien rights it may have against the Collateral
to the lien and encumbrance of the Mortgage and the other Loan Documents, in
consideration
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of being granted the Cupertino Mortgage; and (2) that the Cupertino Mortgage and
other Cupertino Mortgage Documents shall be subject, subordinate and inferior to
the Mortgage and the other Loan Documents in all respects for all purposes and
at all times (the "Cupertino Subordination"). The Cupertino Subordination shall
be subject to the review and approval of Bank in its sole discretion.
(7) True, correct and complete copies of all agreements with
Kinetics, including Borrowers' existing agreement setting forth the terms and
conditions pertaining to the payment of the account payable to Kinetics in the
amount of $4,006,611.92, together with the written agreement of Kinetics whereby
Kinetics agrees, inter alia, to: (1) accept payment of $1,000,000 on
disbursement of Loan proceeds (as contemplated by subsection 8(d) above); (2)
accept payment of the remaining balance due of $3,006,611.92 over a period of
time of not less than five (5) months from the date hereof; and (3) fully
subordinate any and all existing lien rights it may have against the Collateral
to the lien and encumbrance of the Mortgage and the other Loan Documents, and a
written statement from Kinetics identifying all of its subcontractors and the
approximate amounts due or to be become due to same (collectively, the "Kinetics
Agreement"). The Kinetics Agreement shall be subject to the review and approval
of Bank in its sole discretion.
(8) A $5,000,000 time deposit or certificate of deposit purchased
by Xxxxxx, together with a pledge and collateral assignment thereof from Xxxxxx
to Bank, all in form and content satisfactory to Bank in its sole discretion,
for the purpose of securing the repayment of a portion of the Xxxxxx Line of
Credit and the CIG Loan. No portion of the Loan proceeds shall be used to
purchase such time deposit or certificate of deposit. Such pledge and assignment
shall not be released unless and until both the Xxxxxx Line of Credit and the
CIG Loan are paid in full.
(9) A favorable opinion of counsel for Borrowers and Guarantors
addressing such matters pertaining to the Loan as may be required by Bank,
including, but not limited to, the due authorization, execution, delivery,
validity and enforceability of the Loan Documents.
(10) Such policies of property and liability insurance, with
endorsements thereto, as may be required by the terms of the Mortgage and other
Loan Documents or as may otherwise by required by Bank.
(11) Bank's having secured such consents and approvals to this Loan
as Bank may require in its sole and absolute discretion from its participants in
that certain loan in the original principal amount of $60,675,000 from Bank to
Technology Center.
(12) Such other matters or items as Bank may require.
11. Conditions Precedent to All Advances. The obligation of Bank to make
any Advance (including the initial Advance) shall be subject (in addition to the
conditions precedent set forth in Section 10) to the further conditions
precedent that on the date such Advance is made:
(1) the following statement shall be true and, if Bank requests
it, Bank shall have received a certificate signed by a duly authorized officer
of each Borrower dated the date of such Advance stating that: (i) the
representations and warranties contained in all of the Loan Documents are true
and correct on and as of the date of such Advance; (ii) no event or circumstance
exists and is continuing, or would result from such Advance, which constitutes
an Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both;
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(2) Bank shall have received evidence satisfactory to it that,
after giving effect to the Advance, neither any Borrower nor any Guarantor will
be insolvent (as defined in any and all applicable bankruptcy or insolvency
statutes), will be left with unreasonably small capital to conduct its
businesses or will have incurred debts beyond its ability to repay them as they
mature;
(3) Bank shall have received such other approvals, opinions or
documents as it may request; and
(4) Bank shall not have made any good faith determination that a
material adverse change in the financial condition of any Borrower or Guarantor
has occurred, or that the ability of any Borrower of Guarantor to perform its or
his obligations under any Loan Document has been materially impaired, or that
Bank is insecure. (1)
No failure by Bank to insist on fulfillment, before it makes a
particular Advance, of any condition precedent specified in Sections 10 or 11
shall operate as a waiver of or otherwise impair its right to insist on such
condition precedent's fulfillment before it makes any other Advance, and any
failure to fulfill such condition precedent on demand shall constitute a breach
of covenant hereunder.
12. Requests and Disbursements.
(1) Each Advance to Borrowers shall be made on at least two (2)
Business Day's prior notice from both Borrowers to Bank specifying for such
Advance the date (which must be a Business Day) thereof and the requested amount
thereof. Each such notice from Borrowers shall be in writing signed by an
authorized representative of both Borrowers and in a form satisfactory to Bank.
Each request for an Advance shall be irrevocable and binding on Borrowers.
(2) Bank shall make each Advance available to Borrowers on the
date specified by Borrowers in accordance with subsection 12(a) upon fulfillment
of the applicable conditions set forth in Sections 10 and 11, by crediting
Borrowers' demand deposit account with Bank.
(3) Bank may honor requests for Advances from any Borrower but
may, in its discretion, require any request to be signed, approved or consented
to by all Borrowers. If one but not both Borrowers makes a request to the effect
that no further Advances be made (or that a particular Advance not be made to or
for the other Borrowers), Bank may either, in its sole discretion, continue
making Advances (or may make the particular Advance in question) (in which case
both Borrowers shall be jointly and severally liable for repayment thereof) or
cease making Advances (or not make the particular Advance in question).
(4) Each Borrower irrevocably authorizes Bank, if and to the
extent any payment is not made when due hereunder or under the Note, to charge
from time to time against any account maintained by such Borrower with Bank any
amounts so due even if doing so creates an overdraft. Any overdraft so created
shall bear interest until paid in full at a per annum rate equal to the rate
then generally being charged Bank's customers on overdrafts and shall be due and
payable, together with accrued interest, immediately after being created.
(5) Whenever any payment to be made under this Agreement or the
Note shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day
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and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be.
13. Representations and Warranties.
Each Borrower represents and warrants (and as long as this Agreement is
in effect or any indebtedness of a Borrower to Bank remains outstanding, shall
be deemed continuously to represent and warrant) to Bank as follows:
(1) Such Borrower is a corporation, duly formed, validly existing
and in good standing under the laws of the State specified at the head of this
Agreement.
(2) The execution, delivery and performance by such Borrower of
the Loan Documents to which it is a party are within such Borrower's powers,
have been duly authorized by all necessary corporate or other action and do not
contravene (i) such Borrower's articles or incorporation or bylaws, or (ii) law
or any contractual restriction binding on or affecting such Borrower.
(3) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by such Borrower of any Loan
Document to which it is or will be a party.
(4) This Agreement is, and each other Loan Document to which such
Borrower is to be a party will be, legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their terms.
(5) The financial statements furnished Bank in connection with
this Agreement fairly represent the financial condition of such Borrower as of
the date thereof and the results of the operations of such Borrower for the
period ended on such date, all in accordance with GAAP; and since that date
there has been no material, adverse change in such condition or operations.
Other than as indicated by those financial statements, such Borrower has no
direct or contingent obligations or liabilities which would be material to its
financial position or condition.
(6) There is no pending or threatened action or proceeding
affecting such Borrower before any court, governmental agency or arbitrator
which may materially adversely affect the financial condition or operations of
such Borrower.
(7) Such Borrower has not previously operated under another name
or a trade name, other than AmTec, Inc.
(8) Except as otherwise specifically provided herein, Bank has a
perfected first lien on and security interest in the Collateral.
(9) Such Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
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(10) Such Borrower has not engaged in any activity that is illegal.
(11) The information contained in the List of Creditors is true,
correct and complete, and the List of Creditors identifies all Creditors
(including Telcordia) and other parties to whom NAPA (or Terremark Technology
Contractors as general contractor) is claimed to owe money.
(12) The information set forth in subsections 10(g)(i) and 10(h) as
to the amounts owed or claimed to be owed to Cupertino and Kinetics,
respectively, is true and correct.
(13) A true, correct and complete list of all existing material
service contracts (including any contracts for the provision of security
services) pertaining to or affecting the Leased Premises as of the date hereof
(the "Existing Service Contracts") is set forth in Exhibit "D", attached hereto
and incorporated herein by this reference. The Existing Service Contracts are in
full force and effect and have not been modified except as may be set forth in
Exhibit "D". There are no existing defaults under the Existing Service
Contracts, and there have been no payments of any sums due thereunder made more
than thirty (30) in advance days of any due date thereunder.
(14) A true, correct and complete list of all existing material
software license agreements pertaining to or affecting the Leased Premises as of
the date hereof (the "Existing Software Licenses") is set forth in Exhibit "E",
attached hereto and incorporated herein by this reference (to be provided by
Borrowers within five (5) business days from the date hereof). The Existing
Software Licenses are in full force and effect and have not been modified except
as may be set forth in Exhibit "E". There are no existing defaults under the
Existing Software Licenses, and there have been no payments of any sums due
thereunder made more than thirty (30) days in advance of any due date
thereunder.
(15) A true, correct and complete list of all Equipment Leases (as
defined in the Mortgage) pertaining to or affecting the Leased Premises as of
the date hereof (the "Existing Equipment Leases"), including the amounts of the
periodic payments due thereunder, the aggregate amount of payments due
thereunder, and the value of the equipment leased thereunder, is set forth in
Exhibit "F", attached hereto and incorporated herein by this reference. The
Existing Equipment Leases are in full force and effect and have not been
modified except as may be set forth in Exhibit "F". There are no existing
defaults under the Existing Equipment Leases, and there have been no payments of
any sums due thereunder made more than thirty (30) days in advance of any due
date thereunder.
(16) NAPA has entered into certain colocation agreements consisting
of Permanent Service Orders and Service Orders (the "Colocation Agreements'),
all of which incorporate by reference the terms of the form of TerreNAP Data
Center Exchange Point and Colocation Agreement (the "Master Agreement") provided
to Bank. A true, correct and complete copy of the Master Agreement has
previously been provided to Bank. A true, correct and complete list of all
Colocation Agreements and the parties thereto as of the date hereof (the
"Existing Colocation Agreements") is set forth in Exhibit "G", attached hereto
and incorporated herein by this reference. The Existing Colocation Agreements
are in full force and effect and have not been modified except as may be set
forth in Exhibit "H". There are no existing material defaults under the Existing
Colocation Agreements, and there have been no payments of any sums due
thereunder made more than thirty (30) days in advance of any due date
thereunder.
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(17) Although there exists a term sheet between TWW and the NAP of
the Americas, LLC, a true, correct and complete copy of which has been furnished
to Bank and its counsel, neither Borrower has entered into any binding agreement
with such entity.
(18) A true, correct and complete copy of that certain District
Cooling Service Agreement dated December 1, 2000 between FPL Thermal Systems,
Inc. and NAPA (the "FPL Agreement") has previously been provided to Bank. The
FPL Agreement is in full force and effect and has not been modified. There are
no existing defaults under the FPL Agreement.
(19) That certain Exclusive Leasing Agreement dated February 23,
2001 among TECOTA Services, T-Xxx Technology Centers, LLC and T-Xxx Brokerage,
LLC has been duly terminated and is of no further force or effect. There are no
other existing management, leasing, brokerage or development agreements with
respect to the Property or the Leased Premises except those referenced in the
Resignation Letter.
(20) TerreNAP Data owns all of the issued and outstanding shares of
NAPA, consisting of 5,000 shares of common stock. Without Bank's prior written
consent in its sole and absolute discretion, no additional shares of, or
interests, options, warrants or similar grants in, NAPA shall be issued, given,
granted or made.
(21) TWW owns all of the issued and outstanding shares of TerreNAP
Data, consisting of 5,000 shares of common stock. Without Bank's prior written
consent in its sole and absolute discretion, Borrowers shall not permit or
suffer any additional shares of, or interests, options, warrants or similar
grants in, TerreNAP Data to be issued, given, granted or made.
(22) The chief executive offices (as such term is used in Article 9
of the Uniform Commercial Code in effect in the State of Florida as of the date
hereof) of each Borrower and each Guarantor are located at 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 as of the date hereof, and such chief
executive offices shall not be changed to any location outside the State of
Florida without prior written notice to Bank. (1)
(23) A significant portion of the proceeds of both the Xxxxxx
$10,000,000 Loan and the TWW Loan were used to capitalize NAPA or pay debts of
NAPA.
(24) Borrowers own and have the unconditional right to use, on a
non-exclusive basis, any and all Intellectual Property (as defined in the
Mortgage), associated with the design and installation of the NAPA Facility and
the operation thereof.
(25) In connection with any Advances to pay off or pay down any
Creditors who have lien rights, Borrowers have furnished to Bank total or
partial lien releases and/or waivers, and affidavits and other documents in
connection therewith, as Bank shall require, all of which shall be in form and
content satisfactory to Bank in its sole discretion.
(26) There is no fact which such Borrower has not disclosed to Bank
in writing which materially and adversely affects nor, as far as such Borrower
can now foresee, is reasonably likely to prove to materially and adversely
affect, the business or financial condition of such Borrower or the ability of
such Borrower to
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perform any Loan Document.
14. General Covenants. At all times while this Agreement is in effect or
any indebtedness of a Borrower to Bank remains unpaid, each Borrower and
Guarantor (other than Xxxxxx, but without releasing, waiving, limiting or
impairing any other obligation of Xxxxxx under his Guaranty) shall, unless Bank
otherwise consents in writing:
(1) Comply in all material respects with all applicable laws,
rules, regulations and orders, and pay, before they become delinquent, all
taxes, assessments and governmental charges imposed upon it or upon any of its
property.
(2) Not directly or indirectly engage in any business other than
those in which it is presently engaged, discontinue any of its existing lines of
business or substantially alter its method of doing business.
(3) Maintain and preserve all of its properties necessary or
useful in the proper conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(4) Keep proper books of record and account in which full and
correct entries will be made of all financial transactions and the assets and
business of such Borrower or Guarantor in accordance with GAAP.
(5) Maintain insurance with responsible and reputable insurance
companies in such amounts and covering such risks as are usually carried by
persons engaged in similar businesses and owning similar properties in the same
general areas in which such Borrower or Guarantor operates, provided that such
insurance shall in addition comply with the insurance requirements contained in
the Mortgage and other Loan Documents.
(6) At any reasonable time and from time to time, upon reasonable
prior notice from Bank, permit Bank, and any agents or representatives of Bank,
to inspect and make audits of any of the Collateral, to examine and make copies
of and abstracts from the records and books of account of and visit the
properties of, such Borrower or Guarantor, and to discuss the affairs, finances
and accounts of such Borrower or Guarantor with any of its officers, subject to
the confidentiality provisions of Section 31 hereof.
(7) Not dissolve, liquidate, merge into or consolidate with any
entity, or sell, mortgage, merge, pool, transfer or otherwise dispose of any of
its properties except inventory in the ordinary course of its business and
obsolete equipment which is replaced with comparable equipment of equal or
greater value (if needed in such Borrower's or Guarantor's operations) and in
which Bank has a first-priority security interest, provided that any such
replacement of equipment shall in addition comply with the requirements
contained in the Mortgage and the other Loan Documents.
(8) Not create, incur or permit to exist any lien, security
interest, or other charge or encumbrance, or any other type of preferential
arrangement (a "Lien") upon or with respect to any property or assets of
Borrower or Guarantor (other than pursuant to the Loan Documents), and not
obtain any secondary financing on the Collateral ("Secondary Financing") or
otherwise encumber the Collateral, without the prior written consent of Bank,
which may be withheld in the sole discretion of Bank, except only for such
Secondary Financing which is deemed to be "Permitted Secondary Financing"
pursuant to Section 17 below, and such Liens which are deemed to be "Permitted
Liens" pursuant to Section 17 below.
-16-
(9) Not incur, create or permit to exist, or guarantee or
otherwise be or become directly or indirectly liable in respect of, any
Indebtedness other than: (i) Indebtedness arising out of this Agreement; (ii)
Indebtedness under Permitted Secondary Financing and Permitted Liens; (iii) the
Indebtedness under the Existing Equipment Leases and any other Equipment Leases
permitted by the provisions of the Mortgage ; (iv) current liability for taxes
and assessments incurred in the ordinary course of business; (v) Indebtedness in
respect of current accounts payable or accrued (other than for borrowed funds or
purchase money obligations) and incurred in the ordinary course of business
(provided that all such liabilities, accounts and claims shall be promptly paid
and discharged when due or in conformity with customary trade practices); and
(vi) in the case of TWW, guarantees of the lease obligations of Coloconnection.
As used herein, the term "Indebtedness" means all indebtedness and obligations
for borrowed money or for the deferred purchase price of property or services
purchased, all obligations in respect of any letter of credit or acceptance
issued or made for such Borrower's or Guarantor's account and all obligations in
respect of any capital lease.
(10) Timely pay and perform all of Borrowers' obligations under the
Cupertino Agreement, the Cupertino Mortgage and the other Cupertino Mortgage
Documents.
(11) Timely pay and perform all of Borrowers' obligations under the
Kinetics Agreement and any and all other documents evidencing, securing or
otherwise related thereto (the "Kinetics Documents").
(12) Maintain its operating accounts with Bank.
(13) Not make any dividends or distributions; provided, however,
that prior to the occurrence of an Event of Default hereunder, any Guarantor or
NAPA may make cash distributions or dividends to their respective shareholders
or partners.
(14) Not enter into any agreements for the management of the
Property which would have the effect of circumventing the intent of the
Resignation Letter to cause the removal of TECOTA Services and all affiliated
parties of Borrowers as manager under the Operating Agreement, Management
Agreement and Development Agreement (as such terms are defined therein) and any
comparable agreements upon Bank's delivery of the Resignation Letter to
Technology Center pursuant to Section 20(c).
(15) Upon Bank's request at any time and from time to time, execute
(and cause any applicable Guarantors to execute) such additional security
documents as Bank may request with respect to the Intellectual Property and
cooperate with Bank in connection with the filing of any such documents with the
U.S. Patent office and any other applicable federal or state offices or agencies
in order to perfect security interests in the Intellectual Property.
(16) Not do anything indirectly that it would be prohibited by this
Section 14 from doing directly.
15. Reporting Covenants. At all times while this Agreement is in effect or
any indebtedness of a Borrower to Bank remains unpaid, each Borrower shall
furnish to Bank the following, all in form and substance and with a degree of
detail, satisfactory to Bank:
(1) as soon as available and in any event within forty five (45)
days after the end of each quarter of each fiscal year of TWW, a consolidated
and consolidating balance sheet of TWW and the Subsidiaries
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as of the end of such quarter and consolidated and consolidating statements of
income and retained earnings of TWW and the Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, each prepared and certified by the chief financial officer of TWW
as true and correct;
(2) as soon as available and in any event no later than ninety
(90) days after the end of each fiscal year of TWW and the Subsidiaries, a
consolidated and consolidating balance sheet of TWW and the Subsidiaries as of
the end of such fiscal year and consolidated and consolidating statements of
income and retained earnings of TWW and the other Subsidiaries for such fiscal
year, all prepared, audited and certified by independent public accountants
acceptable to Bank and certified by the chief financial officer of TWW as true
and correct;
(3) as soon as available and in any event no later than ninety
(90) days after the end of each calendar year, financial statements of Xxxxxx
reviewed by independent public accountants acceptable to Bank and certified by
Xxxxxx as true and correct;
(4) by the fifteenth (15) day of each month, accounts receivable
and accounts payable agings for Borrowers as of the end of the previous month
and a schedule of their inventory as of the end of the previous month;
(5) notice of any event which has or may have a material adverse
effect upon the financial condition of such Borrower or the value or viability
of any of the Collateral;
(6) as soon as possible and in any event within ten (10) days
after the commencement thereof or any adverse determination therein, notice of
all actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality materially affecting such
Borrower or any of the Collateral;
(7) as soon as possible and in any event within ten (10) days
after the occurrence of each Event of Default or event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default, a
statement the chief financial officer of such Borrower setting forth the details
of such Event of Default or event and the action which such Borrower proposes to
take with respect thereto;
(8) promptly after the filing or receiving thereof, copies of all
reports and notices which such Borrower files under the Employee Retirement
Income Security Act of 1974 ("ERISA") with the Internal Revenue Service, the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor or which
such Borrower receives from any of them;
(9) within ten (10) days after Bank requests same, and in any
event, within ten (10) days after the end of each calendar quarter, updated
lists of all of the items described in subsection 9(b) and subsections 14(k)
through 14(o), with all the information specified therein, certified by
Borrowers to be true, correct and complete; and
(10) within a reasonable time, such other information respecting
the condition or operations, financial or otherwise, of such Borrower (including
without limitation whatever information is necessary
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to determine whether such Borrower is in compliance with the covenants in the
Loan Documents), Guarantors or any of the Collateral as Bank may from time to
time request.
16. Change in Maturity Date of Xxxxxx Line of Credit and CIG Loan.
Borrowers shall cause: (i) Xxxxxx to enter into a modification of the Xxxxxx
Line of Credit in order to change the maturity date thereof to December 31,
2001; and (ii) CIG to enter into a modification of the CIG Loan in order to
change the maturity date thereof to December 31, 2001.
17. Permitted Secondary Financing and Liens.
(1) At or after Closing, Borrowers may execute and deliver to
Cupertino the Cupertino Mortgage and other Cupertino Mortgage Documents,
provided Bank has previously been provided with a copy of the Cupertino Mortgage
Documents and has approved in writing the form and content thereof. The
Cupertino Mortgage shall be deemed to be a "Permitted Lien", and the
Indebtedness secured thereby shall be deemed to be "Permitted Secondary
Financing".
(2) The Existing Equipment Leases shall be deemed to be "Permitted
Liens".
(3) The inchoate lien rights under Chapter 713, Florida Statutes,
of any Creditors as described in any Construction Lien Exception in the Title
Policy shall be deemed be "Permitted Liens". Such rights of Kinetics shall be
deemed to be "Permitted Secondary Financing".
(4) Borrowers may obtain Secondary Financing, and as security
therefor grant Liens upon the Collateral (excluding stock in Borrowers or
Guarantors and excluding life insurance policies), in an amount not to exceed
$25,000,000 in the aggregate, provided that:
(1) no Event of Default exists and no event or
circumstance exists and is continuing, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both;
(2) such Liens shall be fully and unconditionally
subordinate, in all respects and for all purposes, to Bank's lien on such
Collateral and Bank's rights under the Loan Documents;
(3) the terms and conditions of such Secondary Financing
and Liens and the lender thereunder shall be reasonably acceptable to Bank,
considering Bank's then current underwriting standards for subordinate financing
on comparable facilities with comparable Borrowers and Guarantors;
(4) if required by Bank, Borrowers shall provide an
intercreditor agreement in form and substance acceptable to Bank, by and among
Borrowers, Bank, the lender providing such Secondary Financing and such other
parties as Bank may require; and
(5) Borrowers shall provide such other agreements and
documents with respect thereto as Bank may require.
Any Secondary Financing meeting the requirements of this subsection
shall be deemed to be "Permitted Secondary Financing", and any Liens therefor
meeting the requirements of this subsection shall
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be deemed to be "Permitted Liens". Borrowers shall timely and fully perform all
of their covenants and obligations under any Permitted Secondary Financing.
18. Equipment Leases.
(1) Borrowers shall timely and fully perform all of their
covenants and obligations under the Existing Equipment Leases.
(2) Borrowers covenant and agree to use reasonable efforts to
obtain from each lessor under the Existing Equipment Leases, within sixty (60)
days after the date hereof, a written agreement, in form and content
satisfactory to Bank in its sole discretion, pursuant to which such lessor:
(1) unconditionally consents to Borrowers' grant of a
lien and encumbrance upon, and security interest, in each such Existing
Equipment Lease pursuant to the Mortgage and the other Loan Documents;
(2) agrees that such lessor shall give Bank written
notice of default by Borrowers under such Existing Equipment Lease, and a
reasonable period of time from the date of the default, but in no event less
than thirty (30) days, in which to cure the default (at Bank's sole option); and
(3) agrees that in the event Bank or its designee
forecloses upon the Mortgage or otherwise realizes upon or becomes the owner of
any of the Collateral, such lessor shall, at Bank's request: (1) recognize Bank
or its designee and the successors and assigns of Bank or its designee as the
holder of the rights of the lessee under such Existing Equipment Lease; and (2)
accept payment and performance by each such party of the obligations of the
lessee thereunder.
(3) Borrowers shall not otherwise modify or terminate the Existing
Equipment Leases or enter into any additional Equipment Leases except in
accordance with the provisions of Section 2.17 of the Mortgage.
19. Colocation Agreements.
(1) NAPA shall timely and fully perform all of its covenants and
obligation under all Colocation Agreements.
(2) So long as no Event of Default exists and no event or
circumstance exists and is continuing, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both, NAPA may, without Bank's consent, enter into
Colocation Agreements on commercially reasonable, market rate terms and
conditions.
(3) Promptly after the execution and delivery any Colocation
Agreement, Borrowers shall furnish Bank with a true, correct and complete copy
of same.
(4) Upon Bank's request at any time and from time to time,
Borrowers shall furnish Bank with a true, correct and complete list of all of
the Colocation Agreements then in existence, together with true, correct and
complete copies of all such Colocation Agreements.
-20-
20. Default.
(1) Any of the following events or conditions shall constitute an
Event of Default (as used herein, the term "Obligor" means and includes each
Borrower and Guarantor):
(1) Borrowers' failure to make any payment of principal
of, or interest on, the Note or to pay any other obligation of any Borrower to
Bank, at the time and in the manner required under the Note and Mortgage, but
subject to any applicable notice and/or cure rights provided for in the Note and
Mortgage;
(2) Bank's discovery that any representation or warranty
made to it by any Obligor is false or misleading in any material respect; (1)
(3) Any Obligor's failure to perform or observe any
condition or agreement contained in any Loan Document to which it is a party,
but subject to any applicable notice and/or cure rights provided for in the
applicable Loan Documents;
(4) The entry or issuance of any judgment, warrant, writ
of attachment, tax lien, writ of garnishment or the like against or in respect
of any deposit of any Borrower with Bank or any of the Collateral, to the extent
same is not paid or transferred to other security acceptable to Bank in
accordance with applicable law within thirty (30) days after such entry or
issuance (or such shorter period as Bank may require in order to protect and
preserve Bank's security);
(5) The dissolution of any Obligor (unless all assets of
the dissolved Obligor are acquired by either Borrower or any Guarantor, and
continue to be encumbered by the Loan Documents);
(6) The institution of a bankruptcy, insolvency,
reorganization or similar proceeding by or against any Obligor (and not
dismissed within sixty (60) days if filed against an Obligor) in any
jurisdiction, the appointment of a receiver for any Borrower's business or a
substantial part of its assets or an assignment for the benefit of any Obligor's
creditors;
(7) A judgment exceeding $100,000 is entered against any
Obligor and not discharged or bonded within thirty (30) days;
(8) Any Obligor's failure to perform any agreement made
by it with or in favor of Bank in any document (other than a Loan Document) and
the continuance of such failure for thirty (30) days after notice from Bank;
(9) If for any reason other than the death of Xxxxxx,
Xxxxxx ceases to be Chief Executive Officer, Chairman of the Board and President
of TWW, ceases to own at least ten percent (10%) of the stock of TWW or disposes
of more than five percent (5%) of such stock in any thirty (30)-day period; or
TWW ceases to wholly own each other Borrower and Subsidiary;
(10) Any Obligor commits (or is reasonably suspected by
Bank to commit) an illegal act;
(11) Any Loan Document ceases to be valid and binding on
an Obligor that is a party to it or such Obligor so contends;
-21-
(12) Bank fails or ceases to have a perfected,
first-priority lien on, security interest in or collateral assignment of
(whichever is appropriate) on all or any part of the Collateral;
(13) TWW's stock fails to be listed on the American Stock
Exchange, the New York Stock Exchange or the NASDAQ national market system;
(14) There occurs an Event of Default as defined in the
Cupertino Mortgage or any other default under the Cupertino Mortgage, the
Cupertino Agreement and/or any other Cupertino Mortgage Documents, which default
not cured within any applicable notice and/or cure period thereunder;
(15) There occurs any default under the Kinetics Agreement
and/or any other Kinetics Documents, which default is not cured within any
applicable notice and/or cure period thereunder;
(16) There occurs any material default under any Equipment
Leases, Colocation Agreements, Existing Software License Agreements (or any
software license agreements pertaining to the NAPA Facility and/or the Leased
Premises hereafter entered into by Borrowers) and/or Existing Service Agreements
(or any service agreements pertaining to the NAPA Facility and/or the Leased
Premises hereafter entered into by Borrowers), which default is not cured within
any applicable notice and/or cure period thereunder;
(17) There occurs any material default under any other
Secondary Financing, which default is not cured within any applicable notice
and/or cure period thereunder;
(18) There occurs any material default under the FPL
Agreement, which default is not cured within any applicable notice and/or cure
period thereunder;
(19) Foreclosure proceedings are instituted with respect
to the Cupertino Mortgage and/or the other Cupertino Mortgage Documents and/or
any construction and/or other mechanics' liens or other liens (including any
liens of Kinetics) upon any of the Collateral and/or any other Secondary
Financing or Permitted Liens; and/or
(20) Bank makes a good faith determination that a material
adverse change in any Obligor's financial condition has occurred, that any
Obligor's ability to perform its or his obligations under any Loan Document has
been materially impaired, or that Bank is insecure.
(2) At any time after the occurrence of an Event of Default, Bank
may, by notice to Borrowers, (i) declare its obligation to make Advances
terminated, whereupon such obligation shall immediately terminate, (ii) declare
the Note and all Advances and interest accrued thereon and all other amounts due
under the Loan Documents to be immediately due and payable, whereupon the Note,
all Advances, all such interest and all other amounts shall become and be
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by each Borrower;
provided, however, that upon the occurrence of an Event of Default described in
clause (vi) above, the Note, all Advances, all accrued and unpaid interest and
all such other amounts due under the Loan Documents shall automatically become
and be due and payable in full without presentment, demand, protest or notice of
any kind; and (iii) at Bank's sole option, make payments to any Creditors who
have not been paid, which payments shall be secured by the Mortgage and the
other Loan Documents.
-22-
(3) At any time after the occurrence of an Event of Default, Bank
may (in addition to exercising any and all other remedies available to Bank
under this Agreement and the other Loan Documents) elect, at its sole option, to
cause the Resignation Letter to be delivered to Technology Center. Nothing
contained herein shall be deemed to require Bank to cause the Resignation Letter
to be so delivered. Unless and until the Resignation Letter is so delivered, it
shall no of no force or effect. Bank agrees to hold the Resignation Letter in
escrow and not to deliver same except in accordance with the provisions of this
subsection 20(c).
21. Exculpation; Indemnification.
(1) Bank (and its directors, officers, employees, attorneys and
agents) shall not incur any liability to any Borrower (other than for its (or
their) own acts or omissions amounting to gross negligence or willful misconduct
as finally determined pursuant to applicable law by a United States Court of
competent jurisdiction) for acts or omissions arising out of or related directly
or indirectly to any Loan Document (including, but not limited to, delivery of
the Resignation Letter pursuant to subsection 20(c) above); and each Borrower
hereby expressly waives any and all claims and actions (other than those
attributable to its (or their) own acts or omissions amounting to gross
negligence or willful misconduct as finally determined pursuant to applicable
law by a United States Court of competent jurisdiction) against Bank (and its
officers, employees, attorneys and agents) arising out of or related directly or
indirectly to any and all of the foregoing acts, omissions and circumstances. In
no event shall Bank be liable to any Borrower for any consequential, punitive or
indirect damages, and each Borrower hereby expressly waives any and all claims
and actions for any such damages.
(2) Bank (and its directors, officers, employees, attorneys and
agents) shall be indemnified, reimbursed, held harmless and, at the request of
Bank, defended by each Borrower from and against any and all claims,
liabilities, losses and expenses that may be imposed upon, incurred by, or
asserted against Bank (or its directors, officers, employees, attorneys and
agents) arising out of or related directly or indirectly to any Loan Document,
including, but not limited to, delivery of the Resignation Letter pursuant to
subsection 20(c) above (except such as are occasioned by the indemnified
person's own gross negligence or willful misconduct as finally determined
pursuant to applicable law by a United States Court of competent jurisdiction).
22. Cost, Expenses and Taxes. Borrowers shall pay (or, if appropriate,
reimburse Bank for) on demand all reasonable costs and expenses in connection
with the preparation, execution, delivery, filing, recording and administration
of the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for Bank, with respect thereto and with respect to advising
Bank as to its rights and responsibilities under the Loan Documents, and all
costs and expenses (including reasonable counsel fees and expenses, including
those incurred at the appellate level and in bankruptcy proceedings) in
connection with the enforcement of the Loan Documents or the restructuring or
amendment of any of them (whether in connection with a renewal, a workout, or
otherwise). In addition, Borrowers shall pay (or, if appropriate, reimburse Bank
for) on demand any and all documentary stamp, intangible and other taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing or recording of any of the Loan Documents, any Advances or any
indebtedness contemplated hereby, and shall indemnify Bank and hold it harmless
from and against any and all liabilities (including penalties and interest) with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. Bank is hereby authorized to deduct any amount due under this Section
22 from the proceeds of any requested Advance or from any bank account of any
Borrower maintained with Bank or to make an unrequested Advance to pay any such
amount.
-23-
23. Additional Costs. If due to either (a) any change (including, without
limitation, any imposition or increase of reserve requirements) in, or in the
interpretation of, any law or regulation or (b) compliance by Bank with any
guideline or request from or regulation of any governmental authority (whether
or not having the force of law), there is any increase in the cost to Bank of
making, funding or maintaining any Advance, Borrowers shall from time to time,
upon Bank's demand, pay to Bank additional amounts sufficient to indemnify Bank
against such increased costs (except that Borrowers shall have no obligation to
indemnify Bank for increased costs due to a change in the rate of tax on the
overall net income of Bank). An itemized certificate as to the amount of such
increased cost, submitted to Borrowers by Bank, shall, absent manifest error, be
conclusive.
24. Prime Depository. Borrowers covenant to and agree with Bank that, for
so long as the Loan shall be outstanding, Bank shall be the prime depository for
the business accounts of Borrowers and Guarantors, including, without
limitation, any and all of the construction disbursement accounts relating to
the Collateral. Borrowers recognize that this covenant and agreement was an
important factor and material inducement to Bank in establishing the terms and
conditions, including the interest rate, of the Loan. If Borrowers violate this
covenant and agreement, Bank may elect, upon written notice to Borrowers, to
increase the rate of Interest to a rate specified in Bank's notice to Borrowers,
which rate shall not exceed Two Percent (2%) per annum more than the non-default
interest rate specified in the Note, effective from the date of such notice.
25. Certain Collateral; Setoff.
(1) As security for all of Borrowers' obligations to Bank
hereunder or under the Note, each Borrower hereby grants Bank a continuing lien
on and security interest in all deposit accounts with Bank in which such
Borrower has any interest (whether now existing or hereafter established) and
all other monies, credits and other property of such Borrower that is now or
hereafter owed by or in the possession or control of Bank.
(2) Upon the occurrence of an Event of Default, Bank may offset
and apply to any or all of the obligations secured by the Collateral all monies,
credits and other property of any nature whatsoever, and the proceeds thereof,
of any Borrower or any Guarantor now or at any time hereafter in the possession
of, in transit to or from, under the custody or control of, or on deposit with,
Bank or its affiliates, including all escrow and reserve accounts of any
Borrower or any Guarantor.
26. Notices.
(1) All notices, requests, approvals, consents and other
communications provided for hereunder (collectively, a "notice") shall be in
writing, shall be addressed to the intended recipient at the address of such
party set forth below, and shall be either delivered to such party by nationally
recognized overnight delivery service (such as Federal Express or Xxxxx Air
Freight), by hand delivery, by Fax, by mailing to such party by certified mail,
return receipt requested, postage prepaid. Any party hereto may at any time and
from time to time by notice given as herein provided change the address to which
future notices to such party are to be given.
(2) Any party hereto giving a notice to the other pursuant to this
Section shall simultaneously give a true and complete copy of such notice to
each of the persons designated by the intended recipient thereof as set forth
below to receive such copies. Each such copy shall be addressed to the intended
recipient at the address of such person set forth below and shall be given by
hand delivery, overnight delivery service,
-24-
or certified mail in the same manner provided above for the giving of notices.
Either party hereto may at any time and from time to time by notice given as
herein provided change the identity or address of the persons designated to
receive such copies or designate additional persons to receive such copies. In
no event, however, shall Bank be obligated to give copies of any notice to
Borrowers to more than four persons at any time.
(3) No notice given by any party hereto shall be of any force or
effect unless such notice is given in accordance with all of the provisions of
this Section.
(4) All notices shall be deemed to have been given and received
(1) on the date of delivery if delivered before 5:00 p.m. on a business day; if
not, on the next business day, (2) if delivered to a nationally recognized
overnight courier service, one day after delivery of such notice to such
service, (3) if deposited in the United States mail, three (3) days after
mailing, or (4) on the date Faxed if Faxed before 5:00 P.M. on a business day,
if not, on the next business day; provided, however, that, when any notice must
be given under any provision of a Loan Document on or before a certain date or
within a certain period or number of days, such notice shall be deemed to have
been given, solely for such purpose, on the date the same was hand-delivered,
delivered to such overnight courier or deposited in the United States mails.
(5) Notices shall be addressed (subject to the foregoing
provisions concerning change of addresses) as follows:
If to Bank: Ocean Bank
000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx-Xxxxxx
and to: Ocean Bank
000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxx, General Counsel
and with a copy to: Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: C. Xxxxxxx Xxxxxx, Esq.
If to NAPA: NAP of the Americas, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx P.A.
Museum Tower, Suite 2200
000 Xxxx Xxxxxxx Xxxxxx
-00-
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to TWW: Terremark Worldwide, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx P.A.
Museum Tower, Suite 2200
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
27. Publicity; Sign. Promptly following closing of the Loan, Bank may: (i)
jointly with Borrowers, issue news releases to newspapers, trade publications
and other publications announcing Bank as a source for financing of Borrowers;
and (ii) install a sign upon the Leased Premises or the Property identifying
Bank as a source for financing.
28. Brokerage. Borrowers shall pay all brokerage commissions due and
payable in connection with this Agreement and shall indemnify Bank from the
claims of any brokers arising by reason of this Agreement. Bank and Borrowers
represent to one another that they know of no one entitled to such a brokerage
commission.
29. Assignment. This Agreement may not be assigned by any Borrower without
Bank's prior consent and any such assignment or attempted assignment without
such prior written consent shall be null and void. Bank may, without any
Borrower's or Guarantor's consent, assign in whole or in part, and issue
participating interests in and to, this Agreement, the Advances and any other
Loan Document, and, in connection therewith, may make whatever disclosures
regarding Borrowers, Guarantor or the Collateral it wishes.
30. Jurisdiction. Each Borrower hereby irrevocably agrees that any action
or proceeding relating hereto or any other document relating to this Agreement
or other Loan Documents that is brought by such Borrower shall be tried by the
courts of the State of Florida sitting in Miami-Dade County, Florida or the
United States district courts sitting in such county. Each Borrower hereby
irrevocably submits, in any such action or proceeding that is brought by Bank,
to the non-exclusive jurisdiction of each such court, irrevocably waives the
defense of an inconvenient forum with respect to any such action or proceeding,
and agrees that service of process in any such action or proceeding may be made
upon each Borrower by mailing a copy thereof to such Borrower at such Borrower's
address set forth in Section 26 (as well as by any other lawful method). Each
Borrower hereby irrevocably appoints Xxxxx Xxxxxxxx, Esq., whose address is 0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 as his or its agent to
receive service of process in any such action or proceeding on such Borrower's
behalf. Service of process on one Borrower in any such action or proceeding
shall constitute service on all other Borrowers, and each Borrower irrevocably
appoints each other Borrower as its agent to accept service of process on it in
any such action or proceeding.
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31. Confidentiality. Borrowers may have furnished and may in the future
furnish to Bank certain information concerning Borrowers which Borrowers have or
will have advised Bank in writing is non-public, proprietary or confidential in
nature ("Confidential Information"). Bank confirms to Borrowers that it is
Bank's policy and practice to maintain in confidence all Confidential
Information which is provided to it under agreements providing for the extension
of credit and which is identified to it as confidential, and that it will
protect the confidentiality of Confidential Information submitted to it with
respect to Borrowers under this Agreement; provided, however, that (i) nothing
contained herein shall prevent Bank or any assignee from disclosing Confidential
Information: (1) to its affiliates and their respective directors, officers and
employees and to any legal counsel, auditors, appraisers, consultants or other
persons retained by it or its affiliates as professional advisors, on the
condition that such information not be further disclosed except in compliance
with this Section; (2) under color of legal authority, including, without
limitation, to any regulatory authority having jurisdiction over it or its
operations or to or under the authority of any court deemed by it to be
competent jurisdiction; and (3) to any actual or potential assignee of or
participant in Bank's or such assignee's rights and obligations under this
Agreement, to the extent such actual or potential assignee or participant has
agreed to maintain such information in confidence on the basis set forth in this
section; and (ii) the terms of this section shall be inapplicable to any
information furnished to it which is in its possession prior to the delivery to
it of such information by Borrower, or otherwise has been obtained by it on a
non-confidential basis, or which was or becomes available to the public or
otherwise part of the public domain (other than as a result of Bank's failure or
any prospective participant's or assignee's failure to abide hereby), or which
was not non-public, proprietary or confidential when Borrower delivered it to
Bank or any assignee.
32. Further Assurances; Power of Attorney. Each Borrower shall, upon
request of Bank, execute and deliver such further documents and do such further
acts as Bank may reasonably request in order to fully effectuate the purposes of
this Agreement and other Loan Documents. Without limiting the generality of the
foregoing, each Borrower shall promptly do whatever Bank requests to cure any
omission of or in, or error in, any of the Loan Documents. Each Borrower hereby
irrevocably appoints Bank as its true and lawful attorney-in-fact (such
appointment being coupled with an interest) with full power (in the name of such
Borrower or otherwise) to execute and deliver such documents and do such acts as
Bank may reasonably deem necessary in order to fully effectuate the purposes of
this Agreement and the other Loan Documents.
33. Certain Definitions. As used herein:
(1) "Affiliate" means, with respect to a Borrower, any person or
entity directly or indirectly controlling or controlled by or under common
control with such Borrower.
(2) "Business Day" means any day other than a Saturday, a Sunday
or a holiday on which most banks in Miami, Florida are closed.
(3) "GAAP" means U.S. generally accepted accounting principles
consistently applied.
34. Joint and Several Liability.
(1) Each Borrower is accepting joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by Bank hereunder, for the mutual benefit,
directly and indirectly, of each Borrower.
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(2) Each Borrower, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrower with respect to the payment and
performance of all the obligations with respect to the Loan, it being the
intention of the parties hereto that all of the obligations with respect to the
Loan shall be joint and several obligations of both Borrowers without
preferences or distinction among them.
(3) If and to the extent that any Borrower shall fail to make any
payment with respect to any of the obligations with respect to the Loan as and
when due or to perform any of the obligations with respect to the Loan in
accordance with the terms thereof, then in each such event the other Borrower(s)
will make such payment with respect to, or perform, such obligations.
(4) The obligations with respect to the Loan of each Borrower
hereunder and under the other Loan Documents constitute full recourse
obligations of such Borrower enforceable against it to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstances whatsoever.
(5) Except as otherwise expressly provided in this Agreement, each
Borrower hereby waives notice of acceptance of its joint and several liability,
notice of any advance made under this Agreement, notice of any action at any
time taken or omitted by Bank under or in respect of any of the obligations with
respect to the Advances, and, generally, to the extent permitted by applicable
law, all demands, notices and other formalities of every kind in connection with
this Agreement. Each Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the obligations
with respect to the Loan, the acceptance of any payment of any of the
obligations with respect to the Loan, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by Bank at any time
or times in respect of any default by any Borrower in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement,
any and all other indulgences whatsoever by Bank in respect of any of the
obligations with respect to the Loan, and the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for any of
the obligations with respect to the Loan or the addition, substitution or
release, in whole or in part, of any Borrower. Without limiting the generality
of the foregoing, each Borrower assents to any other action or delay in acting
or failure to act on the part of Bank with respect to the failure by any
Borrower to comply with any of its respective obligations with respect to the
Loan, including, without limitation, any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with any applicable
laws and regulations which might, but for the provisions of this Section 33,
afford grounds for terminating, discharging or relieving any Borrower, in whole
or in part, from any of its obligations with respect to the Loan, it being the
intent of each Borrower that so long as any of its obligations with respect to
the Loan remain unsatisfied, the obligations with respect to the Loan of such
Borrower shall not be discharged except by performance and then only to the
extent of such performance. The obligations with respect to the Loan of each
Borrower shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, or similar proceeding with respect to
any Borrower or Bank. The joint and several liability of Borrowers hereunder
shall continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any Borrower or Bank.
(6) Each Borrower shall be jointly and severally liable for all
obligations and liabilities with respect to any Advance regardless of whether it
signed or was aware of the request therefor.
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35. Illegalities. Bank shall have no obligation to make or issue any
Advance if the making of it or the use thereof may violate any law or
regulation.
36. Miscellaneous. The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any other provision
hereof. If any provision hereof is capable of more than one interpretation, it
shall be interpreted, if possible, so as to render it enforceable. In order to
be effective, any addition hereto or any modification or waiver of any provision
or provisions hereof must be expressly consented to by Bank in writing.
"Hereof," "hereunder," "herein" and words of similar import refer to this
Agreement as a whole and not just the paragraph in which they appear. The
indemnity obligations herein shall survive repayment of the Loan and the
cancellation hereof. No delay or omission by Bank in exercising any right or
remedy hereunder shall operate as a waiver thereof or of any other right or
remedy, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right or remedy. Bank may grant or
deny any approval or consent contemplated hereby in its sole and absolute
discretion; whenever used herein, the phrase "acceptable to Bank" or
"satisfactory to Bank" means "acceptable and satisfactory to Bank in its sole
and absolute discretion" and "in Bank's discretion" or "Bank's sole discretion"
means "in Bank's sole and absolute discretion"; and, to be enforceable against
Bank, any consent or approval by Bank must be in writing. This Agreement is
solely for the benefit of Bank and Borrowers and may not be relied on by any
third party.
37. Acceptance Deadline. If Bank signs this Agreement but any Borrower
fails to sign and return to Bank a copy of it (together with the commitment fee)
within ten (10) days after any Borrower's receipt of this Agreement, any
commitment by Bank under this Agreement shall, at Bank's election, become null
and void.
38. Construction of this Agreement.
(1) Borrowers and Bank agree and acknowledge that each of them,
together with their respective legal counsel, have contributed substantially to
the preparation and negotiation of the terms of this Agreement and the other
Loan Documents, and, as such, this Agreement shall not be interpreted more
favorably against one party than the other solely upon the basis of which party
actually drafted this Agreement and the other Loan Documents.
(2) This Agreement and the other Loan Documents are to be read in
pari materia, and shall be construed in such a manner as to afford the greatest
possible protection and benefit for Bank. In the event of an express conflict
between the terms of the Note and the terms of this Agreement or any other Loan
Documents as to payment terms, the terms of the Note shall control. In the event
of any other express conflict between the terms of this Agreement, and the terms
of any other Loan Documents (including, but not limited to, the Commitment
Letter), the terms of this Agreement shall govern and control.
39. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY
CONFLICTS-OF-LAW RULE OR PRINCIPLE THAT WOULD GIVE EFFECT TO THE LAWS OF ANOTHER
JURISDICTION.
40. Waiver of Jury Trial. BANK AND BORROWERS HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION (INCLUDING ANY COUNTERCLAIM) BASED ON, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE
-29-
ADVANCES, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR BANK TO ENTER INTO THIS AGREEMENT.
41. Amendment and Restatement. This Agreement amends and restates and
supersedes in its entirety that certain Credit Agreement dated as of September
5, 2001 among Borrowers and Lender, as amended by that certain letter dated
September 5, 2001 from Lender to Borrowers and countersigned by Borrowers,
Xxxxxx, and CIG. All references in the Loan Documents to the "Credit Agreement"
shall be deemed to refer to this Agreement, as same may hereafter be
substituted, replaced, renewed, split, consolidated, extended, restated, or
otherwise modified or amended from time to time.
Signed as of the date set forth at the head of this Agreement.
NAP OF THE AMERICAS, INC., a Florida
corporation
By: /s/Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
[CORPORATE SEAL]
TERREMARK WORLDWIDE, INC., a Delaware
corporation
By: /s/Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
[CORPORATE SEAL]
OCEAN BANK,a Florida charted bank
By: /s/Xxxxx Xxxxxxxx- Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx- Xxxxxx
Title: Senior Vice President
-30-
CONSENT OF GUARANTOR
The undersigned, as one of the Guarantors of the Loan, and as a major
shareholder of Terremark Worldwide, Inc., hereby consents to terms of the Credit
Agreement and agrees that: (i) all of the representations and warranties made in
the Credit Agreement by Borrowers are true, correct and complete in all material
respects and shall be deemed ratified, confirmed and re-affirmed by the
undersigned personally; (ii) the Credit Agreement, and all of the terms,
covenants and conditions set forth in the Credit Agreement, are binding on and
enforceable against Borrowers; and (iii) the undersigned will comply, and will
cause the other Guarantors to comply, with all of the terms, covenants and
conditions set forth in the Credit Agreement.
/s/Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
-31-
MIADOCS 451602.3 TF
PROMISSORY NOTE
U.S. $48,000,000.00 September 5, 2001
1. PARTIES.
1.1 NAP OF THE AMERICAS, INC., a Florida corporation
("NAPA"), and TERREMARK WORLDWIDE, INC., a Delaware
corporation (collectively and individually,
"Borrowers"). The liability and obligations of
Borrowers hereunder shall be joint and several.
1.2 OCEAN BANK, a banking corporation organized and existing under
the laws of the State of Florida ("Lender").
2. BORROWERS' PROMISE TO PAY. For value received, Borrowers jointly and
severally promise to pay to the order of Lender, FORTY EIGHT MILLION AND NO/100
DOLLARS ($48,000,000.00) (the "Principal"), or so much of the Principal as may
be advanced and outstanding under this Note from time to time, plus interest
(the "Interest") on the Principal from time to time remaining unpaid, at the
rates and in the manner set forth in this Note.
3. DEFINITIONS.
3.1 DEFINED TERMS. In addition to the other terms
elsewhere defined herein, the following terms shall
have the meanings set forth in this Section 3:
(1) "Credit Agreement" means that certain Credit
Agreement of even date herewith between
Borrowers and Lender, as may be amended,
modified, supplemented, renewed, extended,
replaced, substituted, split, consolidated
or increased from time to time.
(2) "Default" means any event which, with notice or lapse
of time or both, would become or result in an Event
of Default.
(3) "Event of Default" means an Event of Default
as defined in Section 11 hereof, or any
Event of Default as defined in the Mortgage,
the Credit Agreement or any other Loan
Documents, or, if not defined in any
particular Loan Document, any default under
such Loan Document which remains uncured
beyond any applicable notice and/or cure
period.
(4) "Loan" means the loan from Lender to Borrowers as
evidenced by this Note.
(5) "Loan Documents" means this Note, the Credit
Agreement, the Mortgage, and all other affidavits,
certifications, documents and instruments now or hereafter
executed by Borrowers, by others, or by Borrowers and
others, and Lender, or in favor of Lender, which
wholly or partly secure or are executed in connection with
this Note or otherwise in connection with the Loan,
each as may be amended, modified, supplemented,
renewed, extended, replaced, substituted, split,
consolidated or increased from time to time.
(6) "Maturity Date" means the date on which this
Note matures as provided in Section 6 hereof
(as same may be extended, subject to and in
accordance with the terms and conditions of
Section 6 hereof), whether on the stated
Maturity Date, or any earlier date resulting
from acceleration of the outstanding
Principal balance and all accrued Interest
payable under the Note.
(7) "Mortgage" means that certain Leasehold
Mortgage and Security Agreement, Assignment
of Leases and Rents and Fixture Filing of
even date herewith executed by NAPA in favor
of Lender, as may be amended, modified,
supplemented, renewed, extended, replaced,
substituted, split, consolidated or
increased from time to time, which Mortgage
encumbers the interests in the Mortgaged
Property and certain personal property
described in the Mortgage and secures the
payment of this Note.
(8) "Mortgaged Property" means the property
described in the Mortgage, and located in
Miami-Dade County, Florida.
(9) "Note" means this Note, as may be amended,
modified, supplemented, renewed, extended,
replaced, substituted, split, consolidated
or increased from time to time.
(10) "Obligations" means the indebtedness
evidenced by this Note, and claims of every
nature and description of Lender against the
Obligors pertaining to the Loan, whether
present or future, contracted or acquired by
Lender, and whether joint, several,
absolute, contingent, matured, unmatured,
liquidated, unliquidated, or direct or
indirect.
(11) "Obligors" means collectively, and jointly
and severally, Borrowers and each endorser,
surety and guarantor and all others who are,
or who may become, liable for the payment of
this Note.
3.2 OTHER CAPITALIZED TERMS. Unless otherwise defined
herein, all other capitalized terms used herein shall
have the respective meanings ascribed to them in the
Mortgage.
4. INTEREST.
4.1 RATE. Subject to the provisions of Section 4.3 below,
the Principal outstanding from time to time under
this Note shall bear interest at a fixed rate of
interest of Nine and One Quarter Percent (9 1/4%) per
annum.
4.2 INTEREST COMPUTATION. Interest shall be computed on
the outstanding Principal balance for the actual
number of days which have elapsed from the date of
each advance, calculated on the basis of an assumed
360-day year.
4.3 DEFAULT RATE. Upon the occurrence of an Event of Default under
this Note, Interest shall be payable on the
outstanding Principal, and to the maximum extent permitted by
applicable law, all accrued and unpaid Interest and all other
sums due and owing to Lender under this Note and the
other Loan Documents, at the maximum rate allowed by applicable
law (the "Default Rate"). Such Default Rate shall be computed
from the date of the Event of Default until such Event
of Default is cured, unless Lender elects to accelerate the
outstanding Principal balance on account of such Event of
Default, in which event the Default Rate shall apply until
this Note is paid in full. After the Maturity Date, Interest
shall be payable on the outstanding Principal balance, and
to the maximum extent permitted by applicable law, on
the accrued and unpaid Interest and all other sums due and
payable under this Note and the other Loan Documents, at the
Default Rate.
5. PRINCIPAL AND INTEREST PAYMENTS.
5.1 Commencing on October 5, 2001 and continuing on the
fifth (5th) day of each calendar month thereafter
until the initial Maturity Date specified in Section
6.1 below, Borrowers shall make monthly payments to
Lender of Interest only.
5.2 If Borrowers duly exercise the First Extension Right (as defined
in Section 6.2 below), then: (i) Borrowers shall make a monthly
payment to Lender of Interest only on March 5, 2003; and
(ii)commencing on April 5, 2003, and continuing on the fifth
(5th) day of each calendar month thereafter until the extended
Maturity Date specified in Section 6.2 below, Borrowers
shall make monthly payments to Lender of Principal in the
amount of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) each, together with all accrued and unpaid
Interest.
5.3 If Borrowers duly exercise the Second Extension Right
(as defined in Section 6.3 below), then commencing on
December 5, 2004, and continuing on the fifth (5th)
day of each calendar month thereafter until the
extended Maturity Date specified in Section 6.3
below, Borrowers shall continue to make monthly
payments to Lender of Principal in the amount of Two
Hundred Fifty Thousand and No/100 Dollars
($250,000.00) each, together with all accrued and
unpaid Interest.
5.4 Amounts repaid under this Note may not be reborrowed.
6. MATURITY DATE.
6.1 INITIAL MATURITY DATE. Unless earlier accelerated
pursuant to the terms of this Note or any of the
other Loan Documents, and subject to the provisions
of Sections 6.2 and 6.3 below, the entire unpaid
Principal and Interest and all other unpaid sums due
and owing from Borrowers to Lender under this Note or
any other Loan Document shall be due and payable in
full on March 5, 2003, which date shall be the
Maturity Date.
6.2 FIRST EXTENSION RIGHT. Borrowers shall have the right
to extend the Maturity Date by an additional nine (9)
months (the "First Extension Right") to December 5,
2003, (in which event Borrowers shall make monthly
payments of Principal and Interest as provided by
Section 5.2 above and otherwise continue to perform
Borrowers' obligations under this Note and the other
Loan Documents), provided that all of the following
conditions are fully satisfied and performed:
(1) not less than fifteen (15) days prior to the
initial Maturity Date specified in Section
6.1 above, Borrowers shall have given
written notice to Lender of Borrowers'
election to extend the Maturity Date;
(2) on or before the initial Maturity Date specified in
Section 6.1 above, Borrowers shall have paid to Lender
in cleared funds: (i) an extension commitment fee in
the amount of One Half Percent (1/2%) of the then
outstanding Principal balance (after giving effect to
the mandatory Principal prepayment described in clause
(ii) below); and (ii) a Principal prepayment in the
amount of Two Million Five Hundred Thousand and
No/100 Dollars ($2,500,000.00); and
(3) at the time such notice is given and as of the initial
Maturity Date specified in Section 6.1 above, no
Default or Event of Default shall exist.
6.3 SECOND EXTENSION RIGHT. If Borrowers shall have duly
exercised the First Extension Right, Borrowers shall
have the right to extend the Maturity Date by an
additional nine (9) months (the "Second Extension
Right") to September 5, 2004 (in which event
Borrowers shall make monthly payments of Principal
and Interest as provided by Section 5.3 above and
otherwise continue to perform Borrowers' obligations
under this Note and the other Loan Documents),
provided that all of the following conditions are
fully satisfied and performed:
(1) not less than fifteen (15) days prior to the Maturity Date
as theretofore extended pursuant to Section 6.2
above, Borrowers shall have given written notice to Lender of
Borrowers' election to extend the Maturity Date;
(2) on or before the Maturity Date as theretofore extended
pursuant to Section 6.2 above, Borrowers shall have
paid to Lender in cleared funds: (i) an extension commitment
fee in the amount of One Half Percent (1/2%) of the then
outstanding Principal balance (after giving
effect to the Principal prepayment described in clause (ii)
below); and (ii) a Principal prepayment in the amount of
Two Million Five Hundred Thousand and No/100 Dollars
($2,500,000.00); and
(3) at the time such notice is given and as of the Maturity Date
as theretofore extended pursuant to Section 6.2 above, no Default
or Event of Default shall exist.
7. PREPAYMENTS. Borrowers will be permitted to prepay Principal in whole
or in part at any time without premium or penalty upon not less than ten (10)
days' prior written notice to Lender specifying the date on which prepayment is
to be made, provided that Principal prepayments shall be accompanied by all
accrued and unpaid Interest through the date of prepayment.
8. USURY SAVINGS CLAUSE.
8.1 In the event that the Interest Rate or the Default
Rate exceeds the maximum rate of interest allowed by
applicable law, as amended from time to time, at any
time during the term of this Note, only the maximum
rate of interest allowed by applicable law shall then
be charged.
8.2 It is the intent of the parties hereto that in no event shall
the amount of Interest due or payment in the nature of Interest
payable under this Note exceed the maximum rate of interest
allowed by applicable law, as amended from time to time, and in
the event any such payment is paid by Borrowers or received by
Lender, then such excess sum shall be credited as a payment of
Principal, unless Borrowers shall notify Lender, in writing,
that Borrowers elect to have such excess sum returned to it.
Lender may, in determining the maximum rate of interest
allowed under applicable law, as amended from time to time,
take advantage of: (i) the rate of interest permitted by
Florida Statutes, Chapter 665 (Florida Savings Association
and Savings Bank Act), by reason of both Section 687.12,
Florida Statutes ("Interest rates; parity among licensed
lenders or creditors") and 00 Xxxxxx Xxxxxx Code, Sections 85
and 86, and (ii) any other law, rule, or regulation in effect
from time to time, available to Lender which exempts Lender
from any limit upon the rate of interest it may charge or
grants to Lender the right to charge a higher rate of
interest than that allowed by Florida Statutes, Chapter 687.
9. APPLICATION OF PAYMENTS.
9.1 So long as no Default or Event of Default has occurred under this
Note, all payments under this Note shall first be applied to
Interest, then to Principal.
9.2 After a Default or an Event of Default under this
Note, all payments under this Note shall first be
applied to costs pursuant to Section 11.3, then to
Interest and the remainder to Principal.
10. PLACE OF PAYMENT; FUNDS.
10.1 All payments under this Note shall be made at
Lender's offices at 000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx 00000, or at such other place as Lender may
from time to time designate in writing.
10.2 All payments under this Note shall be made in lawful money
of the United States of America.
11. DEFAULT AND REMEDIES.
11.1 Each of the following events shall constitute an "Event of
Default" under this Note:
(1) the failure of any Obligor to pay any installment of
Principal and/or Interest due and payable under this Note,
within ten (10) days after the date when same became due and
payable; or
(2) the failure of any Obligor to pay in full
the outstanding Principal of this Note,
together with all accrued and unpaid
Interest, on the Maturity Date, whether
occurring on the stated Maturity Date, by
acceleration, or otherwise; or
(3) the failure of any Obligor to pay any other
sum due and payable by Borrowers to Lender
or to any other person under any of the Loan
Documents, within ten (10) days following
the date written notice is provided by
Lender to Borrowers; or
(1) the occurrence of any Event of Default
after the expiration of any applicable
notice and/or cure periods) under the
Mortgage or any of the other Loan Documents.
11.2 Upon the occurrence of an Event of Default, Lender,
at its option, may declare the entire unpaid Principal
balance of this Note, together with all accrued and unpaid
Interest and all other sums due and owing to Lender under
this Note and the Loan Documents, to be immediately due and
payable without notice or demand, and Lender may exercise
such other rights and remedies as may be available under the
Loan Documents or as otherwise may be available at law or in
equity.
11.3 In addition to payments of Interest and Principal, the
Obligors shall be jointly and severally liable for
the payment of: (i) taxes (excluding corporate and income
taxes of Lender), charges and assessments levied on or
with respect to the Obligations or the execution,
delivery, registration, performance or enforcement of this
Note and the Loan Documents, including, without
limitation, documentary stamp taxes, intangible taxes and
filing fees; and (ii) the costs of securing and enforcing,
or attempting to secure and enforce, this Note and the
Loan Documents, including, without limitation, Lender's
reasonable attorneys' fees, paralegals' fees and legal
assistants' fees (whether for services incurred in
collection, litigation, bankruptcy proceedings, appeals,
enforcement of judgments, or otherwise), and all other fees,
costs and disbursements incurred in connection therewith.
12. LATE PAYMENT. Lender has no obligation to accept a late payment.
Further, the acceptance of a late payment shall not constitute a waiver of any
Default or Event of Default then existing or thereafter arising under this
Note.
13. CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
13.1 This Note is the Note referred to in, is
issued under and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement provides for,
INTER ALIA, the making of advances by Lender to Borrowers
from time to time in an aggregate amount not to exceed the
Principal amount and certain other limits specified in
the Credit Agreement, the indebtedness resulting from
each such advance being evidenced by this Note. Lender is
authorized to set forth in writing from time to time on the
reverse hereof or on an attached grid the date and amount
of each advance, any repayment of the Principal hereof and
the Principal balance then unpaid hereon, but no failure to
do so shall affect the validity hereof or Lender's rights
hereunder.
13.2 This Note is secured by, INTER ALIA, the Mortgage.
13.3 Reference is made to the provisions of the Credit
Agreement, the Mortgage and the other Loan Documents
for a description of the further rights of Lender.
14. WAIVERS. Borrowers and all other Obligors jointly and severally: (a)
waive presentment for payment, demand, notice of demand, notice of non-payment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with the delivery, acceptance, performance, default (except as
provided herein), or enforcement of the payment of this Note, (b) waive any
exemption of disposable earnings from attachment or garnishment under Section
222.11, Florida Statutes, (c) consent to all extensions of time, renewals,
postponements of time of payment of this Note or other modifications of this
Note from time to time prior to or after the Maturity Date, whether by
acceleration or in due course, without notice, consent or consideration to any
of the foregoing, (d) agree to any substitution, exchange, addition, or release
of any of the security for the indebtedness evidenced by this Note or the
addition or release of any party or person primarily or secondarily liable on
this Note or with respect to this Note, (e) agree that Lender shall not be
required first to institute any suit, or to exhaust its remedies against the
undersigned or any other person or party to become liable under this Note or
against the security in order to enforce the payment of this Note, and (f) agree
that, notwithstanding the occurrence of any of the foregoing (except by the
express written release by Lender of any such person), the Obligors shall be and
remain, jointly and severally, directly and primarily, liable for all sums due
under this Note.
15. SET-OFFS. Borrowers and all other Obligors expressly grant to
Lender a continuing first lien security interest in and authorizes and empowers
Lender, at its sole discretion, at any time after the occurrence of an Event of
Default to appropriate and, in such order as Lender may elect, apply to the
payment of this Note or to the payment of any and all indebtedness, liabilities
and obligations of such parties to Lender or any of Lender's affiliates, in
connection with the Loan, whether now existing or hereafter created or arising
or now owned or howsoever after acquired by Lender or any of Lender's
affiliates (whether such indebtedness, liabilities and obligations are or will
be joint or several, direct or indirect, absolute or contingent, liquidated or
unliquidated, matured or unmatured, including, but not limited to, any letter
of credit issued by Lender for the account of any such parties), any and all
money, general or specific deposits, or collateral of any such parties now or
hereafter in the possession of Lender, including operating accounts for the
Mortgaged Property and any reserve or escrow accounts established pursuant to
the Mortgage or the other Loan Documents.
16. GOVERNING LAW. This Note shall be construed, interpreted, enforced
and governed by and in accordance with the laws of the State of Florida,
excluding principles governing conflicts of laws, and federal law, in the event
federal law permits a higher rate of interest than state law.
17. REMEDIES CUMULATIVE. The rights of Lender arising under this Note
and the Loan Documents, and the rights allowed or permitted Lender by law or
equity, shall be separate, distinct and cumulative, and the selection of one
remedy shall not preclude the selection of another or other remedies until
Lender shall have recovered all sums due Lender, together with the appropriate
Interest on those sums.
18. CONCURRENT NOTICE AND/OR CURE PERIODS. Any notice or curative
periods, or periods which must elapse before the occurrence of an Event of
Default under this Note, shall run concurrently (and not consecutively) with
any notice and/or curative period or periods which must elapse before the
occurrence of an Event of Default under any Loan Document. Any notice of
default under this Note shall be deemed a notice of default under all Loan
Documents, and any notice of default under any Loan Document shall be deemed a
notice of default under this Note.
19. ACCOUNTS. Borrowers covenant to and agree with Lender that, for so
long as the Obligations shall be outstanding, Lender shall be the prime
depository for the business accounts of Borrowers and Guarantors, including,
without limitation, any and all of the construction disbursement accounts
relating to the improvements to the Mortgaged Property. Borrowers recognize
that this covenant and agreement was an important factor and material
inducement to Lender in establishing the terms and conditions, including the
interest rate, of the Loan. If Borrowers violate this covenant and agreement,
Lender may elect, upon written notice to Borrowers, to increase the rate of
Interest to a rate specified in Lender's notice to Borrowers, which rate shall
not exceed Two Percent (2%) per annum above the interest rate specified in
Section 4.1 above, effective from the date of such notice.
20. MISCELLANEOUS PROVISIONS.
20.1 The term "Lender" as used herein shall mean any holder of this
Note.
20.2 Time is of the essence in this Note.
20.3 The captions of sections of this Note are for
convenient reference only, and shall not affect the
construction or interpretation of any of the terms
and provisions set forth in this Note.
20.4 If any provision or portion of this Note is declared
or found by a court of competent jurisdiction to be
unenforceable or null and void, such provision or
portion thereof shall be deemed stricken and severed
from this Note, and the remaining provisions and
portions thereof shall continue in full force and
effect.
20.5 This Note and the Loan Documents constitute and
evidence the complete understanding between Lender
and Obligors in respect of the Loan. This Note and
the Loan Documents may not be amended, modified,
supplemented, renewed, extended, replaced,
substituted, split, consolidated or increased nor
shall any waiver of any provision hereof be
effective, except by an instrument in writing
executed by an authorized officer of Lender.
20.6 Lender shall not by any act, delay, omission or
otherwise be deemed to have waived any rights or
remedies and no waiver of any kind shall be valid,
unless in writing and signed by Lender. Any waiver of
any provision of this Note shall be effective only in
the specific instance and for the specific purpose
for which given.
21. SUBMISSION TO JURISDICTION. BORROWERS AND ALL OTHER OBLIGORS,
JOINTLY AND SEVERALLY, IRREVOCABLY AND UNCONDITIONALLY (A) AGREE THAT ANY SUIT,
ACTION, OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE SHALL
BE BROUGHT EXCLUSIVELY, AT THE OPTION OF LENDER, IN A COURT OF RECORD OF THE
STATE OF FLORIDA IN AND FOR MIAMI-DADE COUNTY OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, UNLESS OTHERWISE REQUIRED BY
OPERATION OF LAW; (B) CONSENT TO THE JURISDICTION OF EACH SUCH COURT IN ANY
SUCH SUIT, ACTING OR PROCEEDING; AND (C) WAIVE ANY OBJECTION WHICH IT OR THEY
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
OF SUCH COURTS.
22. WAIVER OF JURY TRIAL. EXCEPT AS PROHIBITED BY LAW, BORROWERS AND
LENDER (BY ACCEPTANCE HEREOF) EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS AND THIRD PARTY
CLAIMS) BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
INSTRUMENT OR ANY OF THE OTHER THE LOAN DOCUMENTS AND THE TRANSACTIONS
CONTEMPLATED THEREIN, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF BORROWERS, LENDER OR ANY GUARANTOR.
IF THE SUBJECT MATTER OF ANY LITIGATION IS ONE IN WHICH THE WAIVER OF JURY
TRIAL IS PROHIBITED, NEITHER BORROWERS NOR LENDER SHALL PRESENT AS A
NON-COMPULSORY COUNTERCLAIM IN SUCH LITIGATION ANY CLAIM ARISING OUT OF THIS
INSTRUMENT. FURTHERMORE, NEITHER BORROWERS NOR LENDER SHALL SEEK TO CONSOLIDATE
ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY LITIGATION IN WHICH A
JURY TRIAL CANNOT BE WAIVED. BORROWERS HEREBY CERTIFY THAT NO REPRESENTATIVE OR
AGENT OF LENDER, NOR LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWERS ACKNOWLEDGE THAT THE
PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO LENDER TO MAKE THE
LOAN.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID AND THE PROPER
DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE.
IN WITNESS WHEREOF, Borrowers have duly executed this Note, as of the
date and year first above written.
NAP OF THE AMERICAS, INC., a Florida corporation
By:/s/Xxxxx X. Xxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: President
[CORPORATE SEAL]
TERREMARK WORLDWIDE, INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
[CORPORATE SEAL]
