EXHIBIT 10.4(D)
AGREEMENT FOR MUTUAL CREDIT ENHANCEMENT,
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CONTRIBUTION AND INDEMNITY
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This AGREEMENT FOR MUTUAL CREDIT ENHANCEMENT, CONTRIBUTION AND INDEMNITY
("this Agreement") is made and entered into, as of March 6, 2000, by and among
XXXXXX X. XXXXXX and TERREMARK FORTUNE HOUSE #2, LTD. (collectively the "Primary
Obligors"), TERREMARK HOLDINGS, INC., TERREMARK GROUP, INC., TERREMARK
CONSTRUCTION SERVICES, INC., TERREMARK DEVELOPMENT, INC., TERREMARK FINANCIAL
SERVICES, INC., TERREMARK HOSPITALITY SERVICES, INC., TERREMARK MANAGEMENT
SERVICES, INC., TERREMARK NORTHEAST, INC., TERREMARK REALTY, INC., TERREMARK
CENTRE GP, INC., TERREMARK CENTRE PARTNER, INC. and TERREMARK BRICKELL, LTD.
(collectively the "Secondary Obligors," the Primary Obligors and the Secondary
Obligors being collectively the "Obligors")
STATEMENT OF PURPOSE AND INTENT
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Ocean Bank has agreed to make revolving credit loans (the "Loans," the
proceeds thereof being the "Loan Proceeds") to either or both of the Primary
Obligors pursuant to a Credit Agreement, a Revolving Promissory Note in the
principal amount of $15,000,000 and certain other loan documents (collectively
the "Loan Documents"), but only if the Loans are made collectively to the
Primary Obligors, the Primary Obligors are jointly and severally primarily
liable for payment thereof and the Secondary Obligors jointly and severally
guaranty payment thereof.
As a specific inducement to Ocean Bank to make the Loans, it is the
purpose and intent of this Agreement to provide that to the extent any Obligor
would, but for the operation of this Agreement, be rendered insolvent under any
applicable law by reason of its incurring of obligations with respect to the
Loans, such Obligor shall have an enforceable claim against the other Obligors
of a nature and in an amount sufficient to constitute an asset of such Obligor
of sufficient value to render such Obligor solvent as of the date of the
incurring of such obligations, for all purposes under applicable law. This
Agreement shall in no event be interpreted in any manner inconsistent with such
intent.
AGREEMENTS
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confirmed, each of the Obligors hereby agrees with the others as follows:
1. Stipulation as to Adequacy of Consideration. To the extent any Obligor
incurs, by reason of its obligations with respect to the Loans or its
obligations to other Obligors under this Agreement, any liability or obligation
in excess of the amount of Loan Proceeds actually distributed (directly or
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EXHIBIT 10.4(D)
indirectly) to such Obligor, such Obligor acknowledges, agrees, stipulates and
expressly represents to Ocean Bank that the mutual promises of all of the
Obligors under this Agreement constitute full, fair, adequate and sufficient
consideration for the incurring of such obligations or liabilities.
2. Contribution Rights; Subrogation. To the extent any Obligor is required, by
reason of its obligations as co-obligor with respect to the Loans, to pay to
Ocean Bank an amount greater than the amount representing that portion of the
Loan Proceeds actually received (directly or indirectly) by such Obligor, such
Obligor shall have an enforceable right of contribution against the remaining
Obligors, and the remaining Obligors shall be jointly and severally liable, for
repayment of the full amount of such excess payment. Such Obligor further shall
be subrogated to any and all rights of Ocean Bank against the remaining Obligors
to the extent of such excess payment; provided, however, that each of the
Obligors hereby expressly agrees that any right of subrogation granted or
confirmed by this Agreement or arising under any applicable law shall in all
respects be fully subordinate to all rights of Ocean Bank under the Loan
Documents, and each Obligor further hereby expressly agrees that it shall not
enforce, nor shall it be entitled to enforce, any such right of subrogation
unless and until such time as all of the obligations to Ocean Bank under the
Loan Documents shall have been fully, finally and indefeasibly paid and such
payment is not subject to avoidance under Title 11 of the United States Code or
any other applicable law.
3. Under-Capitalization Indemnity. To the extent that any Obligor would, but for
the operation of this Agreement and by reason of its incurring of obligations
with respect to the Loans, be rendered insolvent for any purpose under
applicable law, each of the other Obligors hereby agrees to indemnify such
Obligor and commit to make a contribution to such Obligor's capital in an amount
at least equal to the amount necessary to prevent such Obligor from having been
rendered insolvent by reason of the incurring of any such obligations.
4. Further Contribution and Indemnity. To the extent that any Obligor would, but
for the operation of this Agreement, be rendered insolvent under any applicable
law by reason of its incurring of obligations to any other Obligor under the
foregoing paragraphs 2 and 3, such Obligor shall, in turn, have rights of
contribution and indemnity to the full extent provided in the foregoing
paragraphs 2 and 3, against the remaining Obligors, such that all obligations of
all of the Obligors to Ocean Bank under the Loan Documents and under this
Agreement shall be allocated in a manner such that no Obligor shall be rendered
insolvent for any purpose under applicable law by reason of its incurring of
such obligations.
5. Subordination to Rights of Ocean Bank. The rights of any Obligor to
contribution or indemnity under this Agreement or under applicable law shall in
all events and all respects be subject and subordinate to Ocean Bank's rights
under the Loan Documents and subject to the prior full, final and indefeasible
payment to Ocean Bank of all amounts due under the Loan Documents and no such
right may be exercised until all of such amounts have been fully, finally and
indefeasibly paid and such payments are in no event subject to avoidance under
Title 11 of the United States Code or any other applicable law.
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EXHIBIT 10.4(D)
6. Non-Modification; Continuing Joint and Several Liability to Ocean Bank. The
Obligors have entered into this Agreement to provide Ocean Bank with further
assurance of the solvency of each of the Obligors. Ocean Bank may therefore rely
on this Agreement for such purpose; and this Agreement may not be terminated,
modified or amended without Ocean Bank's consent (as a third- party beneficiary
of this Agreement) until all amounts due under the Loan Documents have been
fully, finally and indefeasibly paid and such payments are in no event subject
to avoidance under Title 11 of the United States Code or any other applicable
law. Notwithstanding anything herein to the contrary, vis-a-vis Ocean Bank, the
liability and obligations of each Primary Obligor under the Note and of each
Secondary Obligor under its guaranty of the Loans shall be joint and several
with such liability and obligations of the other Obligors.
7. Severability. To the extent any provision of this Agreement, or any
obligations incurred by any Obligor under this Agreement, is determined to be
void, subject to avoidance, or otherwise unenforceable under applicable law, the
remaining provisions of this Agreement and remaining obligations of the Obligors
shall remain of full force and effect to the full extent consistent with such
determination. To the extent, notwithstanding the operation of the foregoing
paragraph 4, that obligations and liabilities of the Obligors to Ocean Bank
under the Loan Documents and to each other under this Agreement cannot be
allocated such that all of the Obligors are solvent for all purposes under
applicable law, such rights and obligations between and among the Obligors shall
be allocated in a manner such that Ocean Bank shall in all respects recover the
maximum amount against the Obligors that can be accomplished under such
allocation.
IN WITNESS WHEREOF, the Obligors have caused this Agreement to be executed
under seal by their duly authorized officers, all as of the day and year first
above written.
___________________________________________
XXXXXX X. XXXXXX
TERREMARK FORTUNE HOUSE #2, LTD.
By: TERREMARK FORTUNE HOUSE #2, INC.,
its sole general partner
By:____________________________________
Name:__________________________________
Title:_________________________________
By: TERREMARK HOLDINGS, INC.
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EXHIBIT 10.4(D)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK GROUP, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK CONSTRUCTION SERVICES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK DEVELOPMENT, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK FINANCIAL SERVICES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK HOSPITALITY SERVICES, INC.
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EXHIBIT 10.4(D)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK MANAGEMENT SERVICES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK NORTHEAST, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK REALTY, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK CENTRE GP, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK CENTRE PARTNER, INC.
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EXHIBIT 10.4(D)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TERREMARK BRICKELL, LTD.
By: TERREMARK BRICKELL, INC.,
its sole general partner
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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