AMENDMENT TO
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
THIS AMENDMENT TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT (this
"Amendment") is made and entered into as of September 1, 1998 by and between
XXXXXX RIVERSIDE, LLC (the "Company") and NATIONSBANK, N.A. (the "Bank").
WITNESSETH:
----------
WHEREAS, pursuant to an Indenture of Trust, dated as of November 1,
1997 (the "Indenture"), between the Development Authority of Xxxxxxx County,
Georgia (the "Issuer") and AmSouth Bank (the "Trustee"), the Issuer has issued
$11,000,000 in aggregate principal amount of the Issuer's Taxable Industrial
Development Revenue Bonds (Xxxxxx Riverside, LLC Project), Series 1997 (the
"Bonds") to provide funds to finance the acquisition, construction and equipping
of a facility for the manufacturing of store fixtures, located in Xxxxxxx
County, Georgia (the "Project"); and
WHEREAS, pursuant to a Lease Agreement, dated as of November 1, 1997,
between the Issuer and the Company, the Issuer has leased the Project to the
Company; and
WHEREAS, the Bank has issued to the Trustee, for the account of the
Company, an irrevocable direct pay letter of credit (the "Letter of Credit") to
pay the principal and interest on the Bonds, as the same become due and payable;
and
WHEREAS, pursuant to a Letter of Credit and Reimbursement Agreement,
dated as of November 1, 1997 (the "Reimbursement Agreement"), between the
Company and the Bank, the Company has agreed to pay to the Bank all amounts paid
under the Letter of Credit; and
WHEREAS, the Bank and the Company desire to amend a certain provision
of the Reimbursement Agreement to clarify that the expiration date of the Letter
of Credit may be extended through the maturity date of the Bonds.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid this day by the Bank to the Company, and in
consideration of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Company and the Bank, the
parties hereto do hereby agree as follows:
1. AMENDMENT OF SECTION 2.11. Section 2.11 of the Reimbursement
--------------------------- Agreement is hereby deleted in
its entirety and replaced by the following:
"(a) The Company may request the Bank to extend the Stated
Expiration Date of the Letter of Credit for successive periods. On or
before November 15, 2000, the Company shall request such an extension
by executing and delivering to the Bank a written request in the form
of Exhibit C attached hereto (an "Extension Request") executed by the
Company. On or before November 15, 2005, on or before November 15,
2010, and on or before November 15, 2015, provided the Bank has
previously extended the Stated Expiration Date, the Company shall
request an extension in each instance by executing and delivering to
the Bank an Extension Request executed by the Company.
(b) Upon receipt of an Extension Request, the Bank shall then
determine whether or not there is an Event of Default as defined herein
or in any of the Related Documents. IF AN EVENT OF DEFAULT EXISTS UNDER
SECTION 8.1(A), (F) OR (G) OF THIS REIMBURSEMENT AGREEMENT, OR A
PAYMENT DEFAULT EXISTS UNDER ANY RELATED DOCUMENT, THE BANK SHALL NOT
BE OBLIGATED TO EXTEND THE STATED EXPIRATION DATE OF THE LETTER OF
CREDIT. If any other Event of Default exists under the Reimbursement
Agreement or any Related Document, the Bank shall provide written
notice to the Company of such Event of Default and the Company shall
have a period of thirty (30) days after receipt of said notice to cure
such Event of Default. If any such Event of Default has not been cured
as provided in this Section 2.11, then the Bank will not be obligated
to extend the Letter of Credit, and the Bank shall not deliver an
Extension Certificate in accordance with this Section 2.11.
(c) If there is no Event of Default or if an Event of Default
(other than an Event of Default under Section 8.1(a), (f) or (g) of
this Reimbursement Agreement, or a payment default under any Related
Document) is cured within such thirty (30) day period, the Bank shall
extend the Stated Expiration Date by five (5) years by delivering to
the Trustee, on or before December 31, 2000, December 31, 2005 and
December 31, 2010, as applicable, an Extension Certificate in the form
of Annex F to the Letter of Credit; provided, however, with respect to
the Extension Request delivered to the Bank on or before November 15,
2015, the Bank shall extend the Stated Expiration Date by six (6) years
to November 15, 2018, by delivering to the Trustee on or before
December 31, 2015, an Extension Certificate in the form of Annex F to
the Letter of Credit. Any failure by the Bank to deliver an Extension
Certificate to the Trustee by December 31, 2005, December 31, 2010 or
December 31, 2015 shall be deemed to be a denial of the Company's
extension request."
2. EFFECT. Except as expressly herein amended, the terms and conditions
------
of the Reimbursement Agreement and the other Loan Documents remain in full force
and effect.
- 2 -
3. BENEFITS. This Amendment shall be binding upon and shall inure to
--------
the benefit of the parties hereto and their respective successors and assigns.
4. DEFINITIONS. All capitalized terms not otherwise defined herein are
-----------
used herein with the respective definitions given them in the Reimbursement
Agreement.
5. CERTAIN REFERENCES. Each reference to the Reimbursement Agreement in
------------------
any of the Loan Documents shall be deemed to be a reference to the Reimbursement
Agreement as amended by this Amendment.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
-------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
7. EXECUTION COUNTERPARTS. This Amendment may be simultaneously
-----------------------
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
[Remainder of this page intentionally left blank]
- 3 -
IN WITNESS WHEREOF, this Amendment has been duly executed and sealed by
the parties the day and year first above written.
COMPANY:
XXXXXX RIVERSIDE, LLC
BY: XXXXXX PROPERTIES, INC., SOLE MEMBER
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President/CEO
Attest:
Name: /s/ Xxxxxxx X. Xxxxxxx
Title: Secretary
(CORPORATE SEAL)
LENDER:
NATIONSBANK, N.A.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
(BANK SEAL)
[Signature Page to Amendment to Reimbursement Agreement]
