Exhibit 10.11
SUNTRUST BANK REIMBURSEMENT AGREEMENT
This SunTrust Bank Reimbursement Agreement, dated as of the 1st
day of October, 1996 (the "Agreement"), by and between HEICO AEROSPACE
CORPORATION, a Florida corporation (the "Company"), and SUNTRUST BANK, SOUTH
FLORIDA, NATIONAL ASSOCIATION (the "Bank"),
W I T N E S S E T H:
WHEREAS, Broward County, Florida, a political subdivision of the
State of Florida (the "Issuer") (i) is issuing $3,500,000 principal amount of
Broward County, Florida, Industrial Development Revenue Bonds (HEICO Aerospace
Corporation Project), Series 1996 (the "Bonds"), and (ii) is loaning the
proceeds of the sale of the Bonds to the Company to finance the renovation,
expansion, rehabilitation and equipping of the Company's existing facility for
manufacturing aircraft parts (the "Project") on a tract of land located at 0000
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx, all pursuant to an Indenture of
Trust, dated as of October 1, 1996 (the "Indenture"), between the Issuer and
SunTrust Bank, Nature Coast, as trustee (the "Trustee"), and a Loan Agreement,
dated as of October 1, 1996 (the "Loan Agreement"), between the Issuer and the
Company; and
WHEREAS, the Bonds are variable rate demand bonds that are
convertible into fixed rate bonds at the option of the Company and otherwise in
accordance with the Indenture; and
WHEREAS, in order to provide liquidity and credit support for the
Bonds and thereby to enhance the marketability thereof, the Issuer required, as
a condition precedent to the issuance of the Bonds and the making of such loan
to the Company, that the Company obtain and deliver to the Trustee for the
benefit of the holders of the Bonds an irrevocable letter of credit to secure
payment of the Bonds; and
WHEREAS, the Company has requested the Bank, and the Bank has
agreed, to issue its letter of credit in the form attached as Exhibit "A" (the
"Letter of Credit"), in accordance with the terms and conditions of this
Agreement, and in accordance with the terms of the Indenture; and
WHEREAS, the Company has agreed to pay the Bank certain fees in
connection with such Letter of Credit and to reimburse the Bank for all payments
made by the Bank thereunder.
NOW, THEREFORE, in consideration of the foregoing premises and in
order to induce the Bank to issue the Letter of Credit, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS. In addition to the defined terms in the
preamble to this Agreement (capitalized terms not otherwise defined herein shall
have the meanings provided in the Indenture), the following terms shall have the
following meanings as used herein, unless the context otherwise requires:
"ADA" means, collectively, the Americans with Disabilities Act of
1990 and the Florida Americans with Disabilities Accessibility Implementation
Act.
"ADA INDEMNITY" means the agreement to comply with the Americans
with Disabilities Act of 1990 dated as of October 1, 1996, between the Company
and the Bank.
"A DRAWING" shall have the meaning specified in the Letter of
Credit, which shall be a drawing in respect of the payment of the portion of the
purchase price of Bonds corresponding to principal of the Bonds.
"AGREEMENT" means this SunTrust Bank Reimbursement Agreement,
including all exhibits, appendices and schedules hereto, by and between the
Company and the Bank, as the same may be modified, amended, supplemented or
extended from time to time.
"B DRAWING" shall have the meaning specified in the Letter of
Credit, which shall be a drawing in respect of the payment of principal of the
Bonds.
"BANK" means SunTrust Bank, South Florida, National Association,
acting as issuer of the Letter of Credit.
"BOND COUNSEL" means such nationally recognized bond counsel
appointed by the Issuer.
"BONDHOLDERS" means the registered owners of record of the Bonds
as shown in the Bond registration books of the Issuer maintained by the Trustee.
"BONDS" means the Broward County, Florida Industrial Development
Revenue Bonds (HEICO Aerospace Corporation Project), Series 1996, and any bonds
duly issued, in exchange or replacement therefor, including temporary bonds, if
any, authorized under the Indenture.
"BUSINESS DAY" means any day on which the corporate trust office
of the Trustee and commercial banks located in Orlando, Florida, Fort
Lauderdale, Florida and Atlanta, Georgia are required or permitted by law to be
open for the purpose of conducting a commercial banking business.
"C DRAWING" shall have the meaning specified in the Letter of
Credit, which shall be a drawing in respect of the payment of interest, or the
portion of the purchase price corresponding to interest, on the Bonds.
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"CASH COLLATERAL ACCOUNT" means the Yield Restricted Cash
Collateral Account/HEICO Aerospace Corporation created pursuant to the Custodial
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time, including, when appropriate, the statutory predecessor of the
Code, and all applicable regulations thereunder whether proposed, temporary or
final, including regulations issued and proposed pursuant to the statutory
predecessor of the Code, and, in addition, all official rulings and judicial
determinations applicable under the Code and under the statutory predecessor of
the Code and any successor provisions to the relevant provisions of the Code or
regulations.
"COMPANY" means HEICO Aerospace Corporation, a Florida
corporation, and its successors and assigns.
"COMPANY DOCUMENTS" means, collectively, the Indenture, the Loan
Agreement, the Note, the Mortgage, the Remarketing Agreement, the Tender Agent
Agreement, the Custodial Agreement, the Environmental Indemnity, the ADA
Indemnity and the Bonds.
"CONVERSION DATE" means the date on which the interest rate on
the Bonds is converted from the Adjustable Rate to the Fixed Rate in accordance
with the terms of the Indenture.
"COSTS" means Cost as defined in the Loan Agreement.
"CUSTODIAN" means SunTrust Bank, Central Florida, National
Association, and any successor thereto acting as custodian of the Cash
Collateral Account under the Custodial Agreement.
"CUSTODIAL AGREEMENT" means that certain Custodial Agreement
dated as of October 1, 1996, by and among the Company, the Bank and the
Custodian.
"DEBT" shall mean all interest-bearing indebtedness for money
borrowed, purchase money mortgages or security agreements, capitalized leases,
conditional sales contracts and similar title- retention instruments of
indebtedness. "Debt" shall include both short- and long-term maturities of
indebtedness.
"DEFAULT" means any of the events specified in Section 8 herein,
whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"ENVIRONMENTAL INDEMNITY" means the Environmental Indemnification
Agreement dated as of October 1, 1996, from the Company to the Bank.
"ERISA" means the Employee Retirement Income Security Act of
1974, and all related provisions of the Code, as the same may be
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amended, supplemented or modified from time to time, together with all
applicable rulings and regulations issued under the provisions of either of
them.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) which, together with the Company, is treated as a single employer
under Section 414(b), (c), (m) or (o) of the Code.
"EVENT OF DEFAULT" means any of the events specified in Section 8
herein provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXPIRATION DATE" means the date upon which the Bank's
obligations under the Letter of Credit expire as set forth therein.
"FIRST REIMBURSEMENT AGREEMENT" means the SunBank Reimbursement
Agreement dated as of February 28, 1994, between the Company and the Bank (f/k/a
SunBank/South Florida, National Association) related to the Issuer's Industrial
Development Revenue Bonds (HEICO Corporation Project), Series 1988.
"FIXED INTEREST RATE" means the interest rate applicable to the
Bonds after the Conversion Date, established in accordance with Section 2.02(d)
of the Indenture.
"GAAP" means generally accepted accounting principles as defined
by the Financial Accounting Standards Board as from time to time in effect that
are consistently applied and, when used with respect to the Company, that are
consistent with the accounting practice of the Company, reflected in the
financial statements for the Company, with such changes as may be approved by an
independent public accountant satisfactory to the Bank.
"GUARANTORS" MEANS, collectively, Jet Avion Corporation, a
Florida corporation, LPI Industries Corporation, a Florida corporation, Aircraft
Technology, Inc., a Florida corporation, HEICO and HEICO-Newco, Inc., a Florida
corporation.
"GUARANTY" means each Unconditional Guarantee of Payment and
Performance dated as of October 1, 1996, made by each Guarantor in favor of the
Bank, executed and delivered to the Bank contemporaneously herewith, and
"Guaranties" means all of such instruments collectively.
"HAZARDOUS MATERIALS" means any petroleum product, and any
hazardous, toxic or dangerous waste, substance or material defined as such in
Hazardous Materials Law.
"HAZARDOUS MATERIALS LAWS" means, collectively, all federal,
state and local laws, ordinances or regulations, now or
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hereafter in effect, relating to environmental conditions or Hazardous
Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.
9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901,
et seq., (the "RCRA"), the Clean Air Act, 42 U.S.C. ss. 7401, et seq. (the
"CAA"), the Toxic Substances Control Act, 15 U.S.C. xx.xx. 2601 through 2929
(the "TSCA"), and all similar federal, state and local laws and ordinances,
together with all regulations now or hereafter adopted, published or promulgated
pursuant thereto.
"HEICO" means HEICO Corporation, a Florida corporation.
"INDENTURE" means the Indenture of Trust, dated as of October 1,
1996, between the Issuer and the Trustee pursuant to which the Bonds are issued.
"INTEREST COMPONENT" means that portion of the Stated Amount of a
Letter of Credit equal to the sum of 50 days' interest on the series of Bonds
secured by such Letter of Credit, computed at the rate of 13% per annum,
notwithstanding the actual rates of interest borne by the Bonds.
"INTEREST RATE" means 2% over the Prime Rate, adjusted daily with
any change in the Prime Rate, based on a year containing 360 days, for the
actual number of days elapsed.
"ISSUER" means Broward County, Florida, as issuer of the Bonds.
"LEGAL REQUIREMENTS" means (i) any and all present and future
judicial decisions, statutes, rulings, directions, rules, regulations, permits,
certificates, ordinances or other requirements of any governmental or public
entity of in any way applicable to the Company or the Project, including,
without limitation, the ownership, use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction thereof, (ii) the Company's
presently or subsequently effective Bylaws and Certificate of Incorporation, and
(iii) any and all terms, provisions and conditions of any and all leases,
indentures and other contracts (written or oral) of any nature applicable to or
binding on the Project or the Company, including, without limitation, any lease
or other contract pursuant to which the Company is granted a possessory interest
in the Project.
"LETTER OF CREDIt" means the direct draw irrevocable letter of
credit issued by the Bank for the account of the Company to secure payment of
the principal of and interest on the Bonds prior to the Conversion Date, in the
form set forth in Exhibit "A" hereto, executed and delivered by the Bank
contemporaneously herewith, and all extensions thereof.
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"Lien" means, as to any asset, (a) any lien, charge, claim,
mortgage, security interest, pledge or other encumbrance of any kind with
respect to such asset, (b) any interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention agreement
relating to such asset, (c) any reservation, exception, encroachment, easement,
right-of-way, covenant, condition, restriction, lease or other title exception
affecting such asset, or (d) any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction).
"LOAN AGREEMENT" means the Loan Agreement, dated as of October 1,
1996, between the Issuer and the Company.
"MAXIMUM INTEREST RATE" means the maximum interest rate permitted
by applicable law.
"MORTGAGE" means the Mortgage and Security Agreement dated as of
October 1, 1996, executed by the Company, as mortgagor, in favor of the Bank and
the Issuer, as mortgagees.
"1988 BONDS" means the Broward County, Florida Industrial
Development Revenue Bonds (HEICO Corporation Project), Series 1988.
"NOTE" means the Promissory Note from the Company to the Issuer
dated October 18, 1996 in the principal amount of $3,500,000.
"PBGC" means the Pension Benefit Guaranty Corporation
and any successor thereto.
"PAYMENT OBLIGATIONS" means all amounts payable by the Company to
the Bank under Section 2 or any other provision hereof.
"PERMITTED ENCUMBRANCES" shall have the meaning ascribed thereto
in the Mortgage.
"PERSON" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture or
other entity or a government or any agency or political subdivision thereof.
"PLAN" means any plan of a type described in Section 402 1(a) of
ERISA which may be established or maintained by the Company in respect of which
the Company or an ERISA Affiliate is an "employer" as defined in Section 3(5) of
ERISA.
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"PLEDGE AGREEMENT" means the Pledge and Security Agreement dated
as of October 1, 1996 by and between the Company and the Bank, and any
amendments and supplements thereto.
"PLEDGED BONDS" means all Bonds that have been purchased with
proceeds from a draw on the Letter of Credit, for which the Bank has not been
reimbursed in accordance with this Agreement and which have been pledged to the
Bank under the terms of the Pledge Agreement.
"PRIME RATE" means the annual interest rate announced by SunTrust
Banks of Florida, Inc. from time to time as its Prime Rate, which interest rate
is only a benchmark, is purely discretionary, and is not necessarily the best or
lowest rate charged borrowing customers of any subsidiary of SunTrust Banks of
Florida, Inc.
"PROJECT" means the renovation, expansion, rehabilitation and
equipping of the Company's existing facility for manufacturing aerospace and
defense parts on a tract of land located at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxx, as more particularly described in Exhibit A to the Loan
Agreement, including all fixtures therein and all equipment, machinery and other
personalty financed with proceeds of the Bonds, all as described in the Loan
Agreement.
"RELATED DOCUMENTS" means, collectively, the Letter of Credit,
this Agreement, the Guaranties, the Pledge Agreement, the Tender Agent Agreement
and any other agreement or instrument, relating to any of the above.
"REMARKETING AGREEMENT" means the Remarketing Agreement dated as
of October 1, 1996 between the Company and the Remarketing Agent.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"SECOND MORTGAGE" means the Second Mortgage and Security
Agreement dated as of February 28, 1994, from the Company to the Bank.
"STATED AMOUNT" shall have the meaning ascribed thereto in the
Letter of Credit.
"SUBSIDIARY" means any corporation of which more than fifty
percent (50%) of the outstanding shares of stock of each class having ordinary
voting power (other than stock having such power only by reason of the happening
of a contingency) is at the time owned by the Company or HEICO.
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"SUNTRUST BANK LOAN AGREEMENT" collectively means the Loan
Agreement among the Bank, HEICO and the Company, dated as of February 28, 1994,
as amended by a First Amendment to Loan Agreement and Reaffirmation Agreement
dated as of October 13, 1994, a Second Amendment to Loan Agreement dated as of
March 1, 1995, and any further modifications, amendments or supplements thereto,
or any successor document pursuant to which the Bank makes available to the
Company and/or HEICO or any Subsidiary a line of credit.
"TRUSTEE" means SunTrust Bank, Nature Coast, as Trustee under the
Indenture.
Each accounting term not defined herein, and each accounting term
partly defined herein to the extent not completely defined, shall have the
meaning given to it under GAAP.
SECTION 2. APPLICATION, REIMBURSEMENT AND OTHER PAYMENTS.
(a) The Company hereby applies to the Bank for, and authorizes
and instructs the Bank to issue, the Letter of Credit in the amount of the
Stated Amount. The Principal Component shall not exceed $3,500,000, and the
Interest Component shall be an amount equal to 50 days' interest on the Bonds,
computed at a rate of 13% per annum, notwithstanding the actual rate borne from
time to time by the Bonds.
(b) The amount available under the Letter of Credit shall be
reduced and reinstated as described in the Letter of Credit.
(c) The Company hereby agrees to pay, or to cause to be paid,
to the Bank
(i) on the date that any amount is drawn and paid under the
Letter of Credit under a B Drawing or a C Drawing, a sum equal to such
amount drawn;
(ii) in the event any Bonds are purchased pursuant to an A
Drawing under the Letter of Credit pursuant to Sections 2.02(c), 4.01,
4.02 or 4.04 of the Indenture, on a date no later than the earlier of
ninety (90) days after the date such drawing is made or the date the
Letter of Credit expires, a sum equal to such amount drawn and paid, and
in the event any Bonds are purchased pursuant to an A Drawing under the
Letter of Credit pursuant to Section 3.08 of the Indenture, on the date
of such draw, a sum equal to such amount drawn;
(iii) upon each transfer of the Letter of Credit in accordance
with its terms to a successor Trustee under the Indenture, in addition
to a fee of $1,500, a sum in such amount as shall be necessary to cover
the transfer fee, costs
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and expenses of the Bank incurred in connection with such transfer;
(iv) on demand, any amount that is paid by the Bank in connection
with its exercise of its discretionary rights pursuant to Sections 9(b)
and 9(c) of this Agreement;
(v) on demand, interest on any and all amounts unpaid by the
Company when due hereunder from the date such amounts become due until
payment in full, at the Interest Rate;
(vi) with respect to a drawing under the Letter of Credit
referred to in subparagraph (ii) above, if the amount of such drawing is
not due and payable immediately, monthly interest on the first day of
each month on unreimbursed amounts outstanding from the date of the
drawing to the date the Bank receives reimbursement in full of the
amount of any such drawing at the Prime Rate; provided, however, that
with respect to all drawings referred to in subparagraph (ii) above,
from and after such time as such unreimbursed drawings become due,
interest thereon shall accrue at the Interest Rate and shall be payable
on demand;
(vii) on demand, any and all expenses incurred by the Bank Bank
(including, without limitation, reasonable attorneys' fees) in enforcing
any rights under this Agreement;
(viii) the Company shall be permitted to treat as a credit
against the interest payable pursuant to clause (c)(vi) above, any
payments of interest received by the Bank in respect of Pledged Bonds
delivered to the Bank pursuant to the Pledge Agreement which payments do
not constitute the proceeds of a draw upon the Letter of Credit;
(ix) on the date hereof, a commitment fee of one-half of one
percent (0.50%) of the initial Stated Amount of the Letter of Credit
(less any portion of such commitment fee already paid by the Company to
the Bank);
(x) commencing on the date hereof, and continuing on the first
day of each month hereafter during the term of the Letter of Credit, a
fee equal to one twelfth (1/12) of the annual fee of one percent (1%) of
the excess, if any, of the Stated Amount of the Letter of Credit over
the balance in the Cash Collateral Account on the date of payment of
such fee;
(xi) Company will timely pay or cause to be paid the sums due
under Section 25 hereof at the times required thereby; and
(xii) a standard negotiation and reinstatement fee in the amount
of $100 for each draw (whether for principal, interest
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or purchase price of Bonds) on the Letter of Credit, payable at the
time of each draw upon the Letter of Credit.
(d) If any change in any law or regulation or in the
interpretation thereof, as the same may be applied by any court or
administrative or governmental authority charged with the administration
thereof, or any change shall occur in generally accepted accounting principles
which shall be mandated and not optionally elected by Bank, shall either (i)
impose, modify or deem applicable any reserve, capital adequacy, special deposit
or similar requirement against letters of credit issued by the Bank similar in
form, type, purpose or amount to the Letter of Credit or (ii) impose on the Bank
any other condition relating, either directly or indirectly, to this Agreement
or the Letter of Credit, and the result of any event referred to in clause (i)
or (ii) above shall be to increase the cost to the Bank of issuing or
maintaining the Letter of Credit (which increase in costs may be the result of
the Bank's reasonable pro rata allocation of the aggregate of such cost
increases resulting from such events), then, (A) the Bank shall so notify the
Company and (B) upon receipt of such notice from the Bank, the Company shall
immediately pay to the Bank all additional amounts which are necessary to
compensate the Bank for such increased cost incurred or to be incurred by the
Bank. All payments of increased costs shall be accompanied by interest thereon
from the date of notice of such change until payment in full thereof at the
Interest Rate. A certificate as to such increased cost incurred by the Bank as a
result of any event mentioned in clause (i) or (ii) above showing the manner of
calculation thereof shall be submitted by the Bank to the Company and shall be
conclusive (absent manifest error) as to the amount thereof. In determining the
amount of any increased costs, the Bank may use any reasonable averaging and
attribution methods.
(e) If, after the date of this Agreement, the Bank shall have
determined that the adoption or implementation of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has the effect of reducing the
rate of return on the Bank's capital, on this credit facility or otherwise, as a
consequence of its obligations hereunder and under the Letter of Credit to a
level below that which the Bank could have achieved but for such adoption,
change or compliance (taking into consideration the Bank's policies with respect
to capital adequacy) by an amount deemed by the Bank to be material, then from
time to time, promptly upon demand by the Bank, the Company hereby agrees to pay
the Bank such additional amount or amounts as will compensate the Bank for such
reduction. A certificate of the Bank claiming compensation
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under this subsection and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive absent manifest error and notice shall
be furnished to the Company and shall be conclusive (absent manifest error) as
to the amount thereof. In determining any such amount, the Bank may use any
reasonable averaging and attribution methods.
(f) The Company hereby agrees to pay to the Bank, on demand, any
and all reasonable charges and expenses which the Bank may pay or incur relative
to the Letter of Credit, and any and all expenses, including, without
limitation, reasonable attorneys' fees and disbursements of counsel for the Bank
incurred or paid by the Bank in connection with (i) the preparation and
negotiation of this Agreement and the instruments referred to herein; (ii) the
closing of the transactions contemplated hereby; (iii) protecting or collecting
the Company's indebtedness to the Bank under this Agreement; (iv) foreclosing
against or otherwise enforcing any collateral security therefor; (v) inspection
of the Project by the Bank or its agents in connection with clauses (iii) and
(iv) of this paragraph; (vi) the exercising by the Bank of its discretion- ary
rights pursuant to Section 9 of this Agreement; (vii) any and all claims,
damages, losses or liabilities of the Bank for which the Company has agreed to
indemnify the Bank pursuant to Sections 6(e), 6(ll), 6(mm) and 13 hereof; and
(viii) protecting, exercising or enforcing any or all of the Bank's rights and
remedies under this Agreement, including without limitation in connection with
any reorganization, insolvency or bankruptcy proceeding affecting the Company,
any of the Guarantors or any of the properties of any of the foregoing.
(g) All payments to the Bank by the Company hereunder shall be
made in lawful currency of the United States to the account of the Bank at its
office at SunTrust Bank, South Florida, National Association, 000 Xxxx Xxx Xxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Banking
Division, by 2:00 p.m. Fort Lauderdale, Florida time on the date such payment
is due in immediately available funds. Funds received after such time shall be
deemed received on the next succeeding Business Day. Overdue payments shall
bear interest at the Interest Rate. Interest payable hereunder shall be computed
on the basis of a 360-day year, actual number of days elapsed.
(h) Upon receipt of a disbursement of money from the Trustee in
conjunction with a certification from the Trustee that money sufficient to pay
all principal of and interest on the Bonds are on deposit with the Trustee and
that all claims against the Issuer under the Indenture have been satisfied or
adequate provision has been made for the payment of all such claims, the Bank
shall apply all money so received:
(i) First, to the Payment Obligations of the Company under
this Agreement;
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(ii) Second, to meet any other amounts owed by the Company
to the Bank under this Agreement;
(iii) Third, to meet any other amounts owed by the Company
to the Bank under any other Related Document; and
(iv) Lastly, to the extent remaining, as a disbursement to the
Company.
No money shall be distributed to the Company pursuant to this
Section 2(h) prior to the Expiration Date.
(i) As security for the payment of the obligations of the Company
pursuant to clause (c)(ii) above, and all interest on any amounts payable
thereunder, the Company will pledge to the Bank, and grant to the Bank a
security interest in, its right, title and interest in and to Bonds delivered to
the Bank in connection with A Drawings pursuant to the Pledge Agreement.
(j) After any C Drawing, the obligation of the Bank to honor
demands for payment under the Letter of Credit with respect to payment of
interest, or the portion of Purchase Price of the Bonds corresponding to
interest, on the Bonds will automatically be reinstated up to the total amount
specified therein, upon the terms and conditions set forth in the Letter of
Credit. Upon release by or on behalf of the Bank of any Pledged Bonds, the
obligation of the Bank to honor demands for payment under the Letter of Credit
with respect to payment of the principal, or the portion of Purchase Price of
the Bonds corresponding to principal, of such Bonds will be automatically
reinstated up to the total amount specified therein upon the terms and
conditions set forth in the Letter of Credit.
SECTION 3. CONDITIONS PRECEDENT TO THE ISSUANCE OF THE LETTER OF
CREDIT. The Bank's obligation to issue the Letter of Credit is subject to the
fulfillment of each of the following conditions precedent:
(a) On the date of issuance of the Letter of Credit and after
giving effect to the issuance of the Letter of Credit, there shall exist no
Default or Event of Default.
(b) On the date of issuance of the Letter of Credit and after
giving effect to the issuance of the Letter of Credit, all representations and
warranties of the Company contained herein, in the Company Documents or
otherwise made in writing in connection herewith shall be true and correct with
the same force and effect as though such representations and warranties had been
made on and as of such date.
(c) The Bank shall have received the following, all of which
shall be in form and substance satisfactory to the Bank:
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(i) certified copies of all approvals, authorizations and
consents of any trustee or holder of any indebtedness or obligation of
the Company or any other Person necessary for the Company to enter into
this Agreement;
(ii) the opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the
Company, addressing such matters, and in such form, as the Bank may
reasonably request;
(iii) evidence satisfactory to the Bank of any local government
approvals which may be required in connection with the transactions
contemplated hereby;
(iv) a copy of the Company's Certificate of Incorporation and
Bylaws;
(v) certified resolutions of the Board of Directors or the
Executive Committee of the Board of Directors of the Company authorizing
the execution, delivery and performance by the Company of this
Agreement, the Mortgage and those Company Documents to which the Company
is a party and approving the form and content of the Letter of Credit;
(vi) certificates of officers of the Company certifying the name
and true signatures of the officers of the Company authorized to sign
this Agreement and the other documents to be delivered by it hereunder;
(vii) an executed copy of each Guaranty;
(viii) certified resolutions of the Board of Directors or the
Executive Committee of the Board of Directors of each Guarantor
authorizing the execution, delivery and performance by such Guarantor of
the applicable Guaranty;
(ix) an executed copy of each Company Document and Related
Document;
(x) satisfaction of all other conditions of the Indenture and any
other conditions required by Bond Counsel, counsel to the Company or
Bank's counsel; and
(xi) such other documents, instruments, approvals (and, if
requested by the Bank, certified duplicates or executed copies thereof)
or opinions as the Bank may reasonably request.
(c) No change shall have occurred in any law or regulation
thereunder or interpretation thereof which in the opinion of counsel for the
Bank would make it illegal for the Bank to issue the Letter of Credit as
provided herein.
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SECTION 4. OBLIGATIONS OF THE COMPANY. (a) The obligations of the
Company under this Agreement shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including without limitation the following
circumstances:
(i) any lack of validity or enforceability of the Company
Documents or Related Documents;
(ii) any amendment or waiver of or any consent to departure from
all or any of the Company Documents or Related Documents;
(iii) the existence of any claim, set-off, defense or other
rights which the Company may have at any time against the Trustee, any
beneficiary or any transferee of the Letter of Credit (or any persons or
entities for whom the Trustee, any such beneficiary or any such
transferee may be acting), the Bank or any other person or entity,
whether in connection with this Agreement, any Company Documents, any
Related Document or any unrelated transaction;
(iv) any breach of contract or other dispute between the Company
and the Trustee, any beneficiary or any transferee of the Letter of
Credit, the Issuer, the holders of the Bonds, the Bank or any other
person or entity;
(v) any statement or any other document presented under the
Letter of Credit proving to be forged, fraudulent, unauthorized, invalid
or any statement therein being untrue or inaccurate in any material
respect whatsoever;
(vi) any delay, extension of time, renewal, compromise, or other
indulgence or modification granted or agreed to by the Bank, with or
without notice to or approval by the Company, in respect of any of the
Company's indebtedness or Payment Obligations to the Bank under this
Agreement; or
(b) The Bank shall not be obligated to issue any further credits,
to cure any Defaults hereunder or defaults under the Company Documents, or in
any other manner to extend any financial consideration to the Company. The
Company understands and agrees that no payment by it under any other agreement,
whether voluntary or involuntary or pursuant to court order or otherwise, shall
constitute a defense to the several obligations hereunder except to the extent
that the Bank has been indefeasibly paid in full.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants as of the date hereof as follows:
14
(a) ORGANIZATION, STANDING, CORPORATE POWER, ETC. It is duly
incorporated, validly existing and in good standing under the laws of the state
of its incorporation, and has corporate power and authority to own its
properties and to carry on its business as now being conducted, in every
jurisdiction where it is conducting its business, and has corporate power and
authority to execute, deliver and perform the Company Documents and the Related
Documents to which it is a party.
(b) AUTHORIZATION. The execution, delivery and performance by the
Company of the Company Documents and the Related Documents to which it is a
party:
(i) have been duly authorized by all requisite corporate action,
and do not require any consent or approval of any other Person,
including, without limitation, the stockholders or creditors of the
Company, which has not otherwise been obtained;
(ii) will not violate any Legal Requirements or any provision of
law, rule or regulation, or the articles of incorporation or by-laws, as
amended to the date hereof, of the Company;
(iii) will not violate or be in conflict with, result in a breach
of, or constitute a default under, any indenture, agreement and other
instrument to which the Company is a party or by which the Company, or
any of its properties, is bound, or any order, writ, injunction, decree
or award of any court or governmental institution; and
(iv) will, when executed and delivered for value, be valid and
binding obligations of the Company.
(c) LITIGATION. Except as set forth in the footnotes to the
Company's financial statements for the fiscal year ended October 31, 1995, there
are no actions, suits or proceedings pending, or to the knowledge of the Company
or any Guarantor, threatened against or adversely affecting them, or any of
them, at law or in equity or before or by any federal agency or instrumentality,
domestic or foreign, which involve any of the transactions herein contemplated,
or the possibility of any judgment or liability which is likely to result in any
material and adverse change in the business, operations, prospects, properties
or assets, or in the condition, financial or otherwise, of the Company or the
Guarantors, taken as a whole. Neither the Company nor any Guarantor, is in
default with respect to any judgment, order, writ, injunction, decree, rule or
regulation of any court, or federal, state, municipal or other governmental
department.
(d) FINANCIAL STATEMENTs. The Company heretofore has furnished to
Bank balance sheets, income statements, and other
15
financial information which are, to the best of its knowledge, correct and
complete, and accurately present the financial condition and the results of the
operations of the Company and the Guarantors on a consolidated basis as of the
dates and for the periods indicated up to and including October 31, 1995, and
said financial statements show all known direct liabilities or contingent
material liabilities as of the dates thereof, and have been prepared in
accordance with GAAP on a consolidated basis and consistently applied. Since the
date of the furnishing of the most recent financial statements, there has been
no material adverse change in the financial or other condition of the Company
and the Guarantors, taken as a whole.
(e) TAXES. The Company and each Guarantor have filed, or caused
to be filed, all federal and state tax returns which, to the knowledge of the
respective officers thereof, are required to be filed in accordance with any
Legal Requirements, and has paid or caused to be paid, all taxes as shown on
said returns or on any assessments received by it and not being contested in
good faith, to the extent that such taxes have become due.
(f) BURDENSOME RESTRICTIONS. Except as are reflected on the most
recent financial statements furnished to the Bank, neither the Company nor any
Guarantor is a party to any agreement or instrument or subject to any charter or
other corporate restrictions materially adversely affecting its business,
properties or assets, operations or condition, financial or otherwise.
(g) PROPERTY AND ASSETS. The Company and each Guarantor has good
and marketable title to all the property and assets reflected on the most recent
consolidated financial statement furnished to the Bank, except such as have been
disposed of in the ordinary course of business since the date of said financial
statement, and all such property and assets are free and clear of any Liens,
except Liens for taxes not yet due, Liens on personal or real property as
reflected in the most recent audited financial statement furnished to the Bank,
Permitted Encumbrances, and except for those Liens, if any, on properties
acquired subsequent to said statement until the date of this Agreement.
(h) ENFORCEABILITY. (i) This Agreement and each of the Company
Documents and the Related Documents to which the Company is a party, when
delivered, will constitute legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the rights of creditors generally and (ii) each Guaranty when
delivered hereunder, will constitute the legal, valid and binding obligation of
the applicable Guarantor executing the same, enforceable against such Guarantor
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy,
16
insolvency or similar laws affecting the rights of creditors generally.
(i) DEFAULT. Neither the Company nor any Guarantor is in default
in any respect under, or with respect to any material contract, agreement or
other instrument to which it is a party or by which it or its assets may be
bound, and no Default or Event of Default has occurred and is continuing.
(j) REGULATIONS G, X and U. Neither the Company nor any Guarantor
is engaged nor will engage principally, or as one of its important activities,
in the business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulations G, X or U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect. No part
of the proceeds of any loans hereunder will be used for "purchasing" or
"carrying" any "margin stock" as so defined or for any purpose which violates,
or would be inconsistent with, the provisions of any regulations of such Board
of Governors, and the execution, delivery and performance of this Agreement and
the use of the proceeds of the Bonds or any extension of credit hereunder do not
and will not constitute a violation of such regulations. Upon request, the
Company will furnish the Bank with a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in said Regulation U to the
foregoing effect.
(k) ERISA. (i) The Plans maintained by the Company and/or the
Guarantors or any of them and all ERISA Affiliates, if any, comply with
all applicable requirements of ERISA and of the Code, and with all
applicable rulings and regulations issued under the provisions of ERISA
and the Code. No Reportable Event has occurred and is outstanding with
respect to any Plan(s).
(ii) Each Plan has at all times been maintained by its terms and in
operation, in accordance with all applicable laws, except such
noncompliance (when taken as a whole) that will not have a materially
adverse effect on the Company, or upon its financial condition, assets,
business, operations, liabilities or prospects;
(iii) The Company is not currently or will not become subject to any
liability (including withdrawal liability), tax or penalty whatsoever to
any person whomsoever with respect to any Plan including, but not
limited to, any tax, penalty or liability arising under Title I or Title
IV of ERISA or Chapter 43 of the Code, except such liabilities (when
taken as a whole) as will not have a materially adverse effect on the
Company, or upon its financial condition, assets, business, operations,
liabilities or prospects; and
17
(iv) The Company and each ERISA Affiliate have made full and timely
payment of all amounts (A) required to be contributed under the terms of
each Plan and applicable law and (B) required to be paid as expenses of
each Plan. No Plan has or would have an "amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA) if such Plan
were terminated as of this date.
(l) APPROVALS. No consent of any person and no authori- zation or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the valid or due execution,
delivery and performance by the Company of this Agreement, any Company Document
or any Related Document to which the Company is a party, other than such
consents, authorizations, approvals or actions as have already been obtained or
which cannot be obtained on the date hereof and are not required to be obtained
on the date hereof. The Company is in compliance with all of the terms and
conditions of each such consent, authorization, approval or action already
obtained, has applied for each such consent, authorization, approval or action
that may be applied for at this time and has met or has made provisions adequate
for meeting all requirements for each such consent, authorization, approval or
action not yet obtained.
(m) PUBLIC UTILITY HOLDING COMPANY. Neither the Company nor any
Guarantor is (i) a "holding company," or (ii) a "subsidiary company" of a
"holding company," or (iii) an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(n) INFORMATION. No certificate, report or other paper furnished
by the Company or a Guarantor to the Bank or any other Person in connection with
this Agreement, the Company Documents or the Related Documents contains as of
its effective date any material misstatement of fact or fails to state a
material fact or any fact necessary to make the statements contained therein not
misleading in any material respect as of such date, and all of the information
contained therein is true, accurate and complete in all material respects as of
such date.
(o) NOT AN INVESTMENT COMPANY. Neither the Company nor any
Guarantor is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(p) ENVIRONMENTAL MATTERS. The Company is in compliance in all
material respects with all federal, state and local environmental laws, rules,
regulations, ordinances and other Legal Requirements including, without
limitation, all Hazardous Materials Laws.
18
(q) HAZARDOUS SUBSTANCES. The site of the Project has not in the
past been used and is not presently being used for the handling, storage,
transportation or disposal of Hazardous Materials or toxic materials in
contravention of applicable state, federal or local law or regulation nor have
such materials ever been present on the Property in contravention of applicable
state, federal or local law or regulation.
SECTION 6. AFFIRMATIVE AND NEGATIVE COVENANTS OF THE COMPANY.
Until the payment in full of any and all amounts due and owing or payable to the
Bank hereunder and the expiration or termination of the Letter of Credit, the
Company shall abide by (and shall cause the Guarantors to abide by) all of the
following affirmative and negative covenants:
(a) The Company and each of the Guarantors shall do, or cause to
be done, all of the things necessary to preserve, renew and keep in full force
and effect, their corporate existence and their rights, licenses and permits
which are necessary for the operation of their respective businesses and shall
comply with all laws applicable to them, operate their respective businesses as
in a proper and efficient manner, and substantially as presently operated or
proposed to be operated, and at all times shall maintain, except as otherwise
previously disclosed in writing to Bank, preserve and protect all franchises and
trade names and preserve all property used or useful in the conduct of their
businesses, and keep the same in good repair, working order and condition, and
from time to time make or cause to be made any needed and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
(b) The Company and Guarantors shall at all times maintain true
and correct books and records and shall keep their books and records in
accordance with GAAP, and shall furnish to Bank such financial statements as may
be required by Bank on a yearly and interim basis as set forth in this
Agreement.
(c) The Company and Guarantors shall properly pay and discharge
(a) all taxes, assessments and governmental charges upon or against the Company,
a Guarantor or the assets of any of them prior to the date on which penalties
are attached thereto, unless, and to the extent, such taxes are being diligently
contested in good faith by appropriate proceedings and appropriate reserves
therefor have been established; and (b) all lawful claims for labor, materials,
supplies, services or anything else which might or could, if unpaid, become a
lien or charge upon the properties or assets of the Company or a Guarantor,
unless and to the extent only that the same are transferred to bond, being
diligently contested in good faith, and by appropriate proceedings and
appropriate reserves therefor have been established.
19
(d) The Company shall, at its sole cost and expense, comply with
all of the insurance requirements set forth in this Agreement, the Mortgage and
the Loan Agreement throughout the term of the Letter of Credit.
(e) In connection with any claims or lawsuits brought by third
parties in connection with the Letter of Credit or this Agreement, any Company
Document or any Related Document, the Company shall and does indemnify and save
harmless the Bank from any and all loss, liabilities, costs, charges or damages
of whatsoever kind and from any suits, claims, actions or demands, including,
without limitation, the Bank's reasonable legal fees and expenses, at all trial
and appellate levels, on account of any matter or thing arising out of this
Agreement, any Company Document or any Related Document, or in connection
herewith or therewith, or on account of any act or omission to act by Company in
connection with this Agreement, the Letter of Credit, any Company Document or
any Related Document, challenge the validity of any of the above referred to
instruments, it being the intention of the parties that this Agreement shall be
construed and applied to protect and indemnify the Bank against any and all
risks involved in, related to or arising out of the issuance of the Letter of
Credit, all of which risks are hereby assumed by the Company, including, without
limitation, any and all risks of the acts or omissions, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts and omissions, herein called "Government
Acts"); excepting for gross negligence or willful misconduct on the part of the
Bank or the violation by the Bank of any state or federal laws or regulations
governing national banking associations. The Company further agrees to pay any
and all taxes (other than taxes on or measured by net income of the Bank)
incurred or payable in connection with, related to or arising out of the
execution and delivery of this Agreement or the Letter of Credit. The Bank shall
not, in any way, be liable for any failure by the Bank or anyone else to pay any
draft under the Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the Bank.
The Company further agrees to indemnify, protect and hold
harmless the Bank and all successors and assigns of the Bank (whether following
the foreclosure of the Mortgage or otherwise) from and against any and all
damages, losses, cleanup costs, liabilities, disabilities, fines, penalties,
costs or expenses (including reasonable attorneys' and paralegals' fees and
expenses) incurred or to be incurred, whether absolute, fixed or contingent,
civil or criminal, and whether arising under federal, state or local law,
incurred or to be incurred (i) in connection with the handling, storage,
transportation or disposal by anyone (other than the Bank or its successors or
assigns) of (A) Hazardous Materials, (B) "hazardous waste," as defined in the
Resource Conservation and Recovery Act and Section 403.703(21, FLORIDA STATUTES,
(C) "hazardous substance," as defined in the Comprehensive Environmental
20
Response, Compensation and Liability Act, and/or (D) petroleum products or
by-products or natural gas, or (ii) otherwise on account of any violation by the
Company of the Hazardous Materials Laws.
The obligations under this paragraph (e) shall survive expiration
of or satisfaction of the Letter of Credit and this Agreement.
(f) The Bank shall have the right, from time to time hereafter
and until the expiration of the Letter of Credit, to publicize and advertise in
any manner the Bank's participation as lender in connection with the Letter of
Credit, with the prior written consent of the Company, which consent shall not
be unreasonably withheld.
(g) The Company shall: (a) make full and timely payments of all
amounts due and owing under this Agreement, including, without limitation, the
Payment Obligations; (b) duly comply with all of the terms and covenants
contained in each of the Company Documents to which the Company is a party; and
(c) at all times maintain the liens and security interests provided for under or
pursuant to this Agreement and the Mortgage as valid and perfected liens and
security interests on the property intended to be covered thereby.
(h) The Company shall promptly notify the Bank upon the
commencement of any action, suit or claim or counter-claim or proceeding against
or investigation of Company or any Guarantor involving claims in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00), in the aggregate.
(i) The Company shall promptly notify the Bank in writing of (a)
any extraordinary material assessments against the Company or the Guarantors or
any of them by any taxing authorities for unpaid taxes as soon as Company has
knowledge thereof; and, (b) any alleged default by Company or a Guarantor in the
performance of any of the terms and conditions contained in any agreement,
mortgage or indenture or instrument to which the Company or the Guarantors or
any of them is a party, or, which is binding upon Company or the Guarantors or
any of them, which would materially affect the business operation of the Company
or Guarantors or any of them, and upon any default by Company or the Guarantors
or any of them in the payment of any of its indebtedness, in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00).
(j) The Company shall pay or caused to be paid all indebtedness
and obligations which, if not paid, would have a material adverse affect on the
business operation of the Company or any of the Guarantors, promptly and in
accordance with their respective terms and timely comply with all applicable
laws and governmental rules and regulations.
21
(k) The Company shall give the Bank prompt written notice of any
action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency, the outcome of which might materially adversely
affect the operations or financial condition of the Company or adversely affect
the ability of any Guarantor to perform under its Guaranty.
(l) The Company shall give the Bank prompt written notice of any
Default or Event of Default hereunder, or any default or event of default with
respect to its or any Guarantor's obligations under any of the other Company
Documents or any Related Documents to which it is a party, indicating the nature
and status thereof and the action which the Company proposes to take or cause to
be taken with respect thereto.
(m) The Company shall give the Bank prompt written notice of the
organization of a Subsidiary, as well as such other information in respect
thereof as the Bank may reasonably request.
(n) The Company or a Guarantor shall not directly or indirectly
engage in any business activity which would represent a material change from the
kind of business activity currently engaged in by it, which would have a
substantial and material affect on the Company's or such Guarantor's business,
without the prior written consent of the Bank, which shall be in the Bank's sole
discretion.
(o) The Company shall not, upon the occurrence of an Event of
Default or an event which, with the giving of notice or the passage of time, or
both, would constitute an Event of Default, as well as during the continuance
thereof, (1) declare any dividend or make any other distribution with respect to
its stock (whether by reduction of capital or otherwise), or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for value or set apart
any sum for the redemption, retirement, purchase or other acquisition of,
directly or indirectly, any shares of its common stock or warrants or options to
purchase any shares of its common stock; or (2) declare dividends or make any
other distribution with respect to its stock (whether by reduction of capital or
otherwise).
(p) The Company shall not change its independent public
accountants without the prior written consent of the Bank unless to independent
public accountants of stature and national prominence substantially equal to
that of the firm presently employed by the Company.
(q) The Company shall provide to the Bank consolidated annual
audited financial statements of Company and all Guarantors and all Subsidiaries,
in form and substance acceptable to the Bank, prepared in accordance with GAAP,
and accompanied by an unqualified opinion of an independent certified public
accountant acceptable to
22
the Bank, within one hundred twenty (120) days following the end of each fiscal
year of Company. Additionally, HEICO shall provide to the Bank copies of
consolidated annual tax returns within fifteen (15) days of filing of the same,
unless such returns shall not be prepared on a consolidated basis, in which case
HEICO and each of its Subsidiaries shall provide their annual tax returns within
fifteen (15) days of filing.
(r) The Company shall provide to the Bank all Form 10-Q
statements filed by the Company and each Guarantor, as applicable, with the
Securities and Exchange Commission and all quarterly public or published
financial statements or information of the Company and all Guarantors, within
sixty (60) days of the end of each of the first three quarters of each fiscal
year of Company and each Guarantor, as applicable.
(s) The Company shall provide to the Bank all Form 10-K
statements filed by Company and each Guarantor, as applicable, with the
Securities and Exchange Commission, within one hundred twenty (120) days
following the end of each fiscal year of Company and each Guarantor, as
applicable.
(t) The Company shall provide to the Bank within sixty (60) days
after the expiration of each quarter of each fiscal year, a certificate executed
by the chief executive officer or chief financial officer of the Company that no
Default exists under this Agreement and that no default by the Company exists
under any Company Documents, the Related Documents or any other material
obligation of the Company or any Guarantor to the Bank.
(u) The Company shall provide the Bank with reasonable promptness
any other financial information or documents that the Bank shall reasonably
request.
(v) The Company shall maintain its principal operating accounts
with the Bank during the term of the Letter of Credit. The parties acknowledge
that the Bank has no right of set-off against the accounts.
(w) There shall be no merger, consolidation or reorganization of
Company or any Guarantor without the Bank's prior written consent, which consent
may be withheld in the Bank's sole discretion; provided, however, that this
paragraph shall not prohibit the merger or consolidation of the Company with one
or more Guarantors or of one or more Guarantors with each other, but the Company
may not transfer substantially all of its assets to HEICO-Newco, Inc.
(x) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a minimum tangible net worth of $9,600,000 at
all times during the term of the Letter of Credit.
23
(y) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a minimum net worth of $30,000,000.00 at all
times during the term of the Letter of Credit.
(z) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a ratio of Debt to tangible net worth ratio
of not greater than 3.0:1.0 at all times during the term of the Letter of
Credit.
(aa) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a minimum amount of working capital of
$8,300,000 at all times during the term of the Letter of Credit. The term
"minimum amount of working capital" shall be calculated excluding indebtedness
due under this Agreement and the Related Documents, but including required
payments under Section 25 of this Agreement, and excluding indebtedness due
under the First Reimbursement Agreement, but including required payments under
Section 25 of the First Reimbursement Agreement.
(bb) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a current ratio of not less than 1.5:1.0 at
all times during the term of the Letter of Credit. The term "current ratio"
shall be calculated (i) excluding indebtedness due under this Agreement and the
Related Documents, but including, required payments under Section 25 of this
Agreement, and (ii) excluding indebtedness due under the First Reimbursement
Agreement, but including required payments under Section 25 of the First
Reimbursement Agreement.
(cc) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain a ratio of Debt to total net worth of not
greater than 1.0:1.0 at all times during the term of the Letter of Credit.
(dd) The Company, HEICO and the Subsidiaries of HEICO, on a
consolidated basis, shall maintain minimum debt service coverage (as hereinafter
defined) of not less than 1.2:1.0 at all times during the term of the Letter of
Credit. (Debt service coverage shall mean net profit after taxes and dividends
plus non-cash expenses (including, but not limited to, depreciation and
amortization, minority interests in consolidated partnerships, deferred income
taxes, deferred financing costs and losses from unconsolidated partnerships)
divided by the current maturity of long-term debt, and shall be calculated
excluding indebtedness due under this Agreement and the Related Documents but
including required payments under Section 25 of this Agreement, and excluding
indebtedness due under the First Reimbursement Agreement but including required
payments under Section 25 of the First Reimbursement Agreement.)
24
(ee) The Company may not hereafter grant subordinate or junior
liens on any of the collateral securing the Company's obligations hereunder,
whether such collateral be real or personal property. (The parties hereto,
however, acknowledge the existence of the lien created by the Mortgage
Documents, as such term is defined in the SunTrust Bank Loan Agreement.)
(ff) With respect to management and ownership of HEICO, the
Xxxxxxxxx Reporting Group (as identified in the reports filed with the Security
and Exchange Commission) must at all times beneficially own and control,
directly or indirectly, at least ten (10%) percent of the issued and outstanding
common shares of stock of the HEICO during the term of the Letter of Credit.
Laurans X. Xxxxxxxxx must be employed by HEICO as President and Chief Executive
Officer and actively manage HEICO during the term of the Letter of Credit.
(gg) The Company hereby indemnifies and holds harmless the Bank
of and from any and all liability in connection with the payment of any
necessary documentary stamp tax and intangible tax (including non-recurring
intangible tax) in connection with the Letter of Credit, this Agreement, the
Guaranties, the Mortgage and all other Company Documents and Related Documents,
which indemnification shall survive repayment of the obligations under this
Agreement and expiration of the Letter of Credit. The Company does also
authorize the Bank to pay said documentary stamp tax and intangible tax,
including without limitation non-recurring intangible tax, from any of Company's
accounts with the Bank at any time in the event the Bank deems the same
necessary, including any penalties and interest that may be associated
therewith.
(hh) The Company shall provide written notice to the Bank of any
default which results in the acceleration of indebtedness owing by Company or
any Guarantor in excess of Two Hundred Fifty Thousand Dollars ($250,000.00).
(ii) The Company shall execute and deliver to the Bank such
further instruments, provide it with such further data and information and take
such further action as the Bank may reasonably request or as may be necessary
further to effect the purposes of the Agreement, the Company Documents or the
Related Documents.
(jj) The Company shall cause all of its properties used or useful
in the conduct of its business as it relates to the Project to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the reasonable
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
25
(kk) The Company shall deliver to the Bank:
(i) Promptly after the occurrence thereof with respect to any
Plan, or any trust established thereunder, notice of (A) a Reportable
Event (other than a Reportable Event not subject to the provisions for
30-day notice to the PBGC under such regulations), or (B) any other
event which could subject the Company or any ERISA Affiliate to any
material tax, penalty or liability under Title I or Title IV of ERISA or
Chapter 43 of the Code;
(ii) At the same time and in the same manner as such notice must be
provided to the PBGC, or to a Plan participant, beneficiary or
alternative payee, any notice required under Section 101(d), 302(f)(4),
303, 307, 4041(b)(1)(A)s or 4041(c)(1)(A) of ERISA or under Section
401(a)(29) or 412 of the Code with respect to any Plan;
(iii) Upon the request of the Bank, (A) true and complete copies of
any and all documents, government reports and determination or opinion
letters for any Plan, or (B) a current statement of withdrawal liability
for each Multiemployer Plan.
(ll) The site of the Project will not in the future be used for
the handling, storage, transportation or disposal of Hazardous Materials or
toxic materials in contravention of applicable state, federal or local law or
regulation. The Company agrees to indemnify, defend, and hold the Bank harmless
from and against any loss to the Bank, including without limitation, reasonable
attorneys' fees incurred by the Bank as a result of such past, present or future
use, handling, storage, transportation or disposal of hazardous or toxic
materials, or their presence on the Property in contravention of applicable
state, federal or local law or regulation, which indemnification shall survive
the repayment of the obligations under this Agreement and the termination or
expiration of the Letter of Credit.
(mm) The Company will comply with the ADA and any and all
regulations and guidelines issued thereunder. The Company agrees to indemnify,
defend, and hold the Bank harmless from and against any loss to the Bank,
including without limitation, reasonable attorneys' fees incurred by the Bank as
a result of the Company's noncompliance with the ADA or the failure of the
Improvements to comply therewith (unless otherwise exempted thereunder) which
indemnification shall survive the repayment of the obligations under this
Agreement and the termination or expiration of the Letter of Credit.
(nn) The Company shall not transfer substantially all
of its assets to HEICO-Newco, Inc.
26
(oo) So long as no Event of Default has occurred and is
continuing, additional Debt, lease obligations and guaranties of the obligations
of others by the Company and the Guarantors shall be unrestricted. If an Event
of Default shall have occurred, neither the Company nor any of the Guarantors
shall incur additional Debt or lease obligations or enter into any guaranties of
the obligations of others.
(pp) The Company and each Guarantor shall provide the Bank with
advance written notice of the incurrence by any of them of any recourse
obligations or Debt, or the entering into by any of them of any guaranties of
the obligations of others, in excess of $250,000 and increments of $100,000
thereafter.
(qq) If the name of the Company, HEICO-Newco, Inc. or any other
Guarantor is changed, the Company will provide the Bank with appropriate
executed documentation evidencing such change and protecting all interests of
the Bank (including all relevant security interests of Bank) within ten (10)
Business Days of such change.
(rr) The Company shall not elect to purchase Bonds pursuant to
Section 3.08 of the Indenture without the advance written consent of the Bank.
(ss) The Company shall not (i) replace the Bank's letter of
credit securing the 1988 Bonds (other than with another letter of credit issued
by the Bank), (ii) terminate the First Reimburse- ment Agreement (other than
upon execution of a similar document between the Company and the Bank), or (iii)
elect to convert the interest rate on the 1988 Bonds from a floating or
adjustable rate to a fixed rate of interest if the effect thereof is that the
1988 Bonds will no longer be secured by a letter of credit issued by the Bank
unless (1) the Company elects to convert the interest rate on the Bonds to a
fixed rate and terminates this Agreement, or takes some other action the result
of which is that this Agreement is terminated, and in each such case all amounts
due and owing the Bank hereunder, including all interest, are paid in full, and
(2) all amounts due and owing the Bank under the First Reimbursement Agreement
(or any successor document between the Bank and the Company), including all
interest, are paid in full and the First Reimbursement Agreement is terminated,
and (3) at the option of the Bank, all amounts outstanding under the SunTrust
Bank Loan Agreement, including all interest, are repaid in full and the SunTrust
Bank Loan Agreement is terminated.
(tt) The Company shall complete the portion of the Project
consisting of interior renovations and roof replacement by July 18, 1997, and
shall acquire all equipment or other personalty constituting part of the Project
by October 18, 1999.
27
The Bank acknowledges that a default under the Second Mortgage or
the SunTrust Bank Loan Agreement shall not be a breach of any of the foregoing
covenants and therefore shall not constitute an Event of Default hereunder.
SECTION 7. DISBURSEMENT OF BOND PROCEEDS. The proceeds of the
Bonds will be deposited in the Construction Fund created under the Indenture and
disbursed only in accordance with the terms of the Indenture and upon approval
by the Bank of all requisitions for disbursement. Prior to the Bank granting
approval to a requisition from the Construction Fund, the following conditions
must be met:
(a) The Company shall have furnished to the Bank a complete set
of plans and specifications for the Project, to the extent the same are
available.
(b) The Company shall have secured and delivered to the Bank, at
the Company's expense, lien waivers or other assurances from the Company's
contractor, architect, engineer and all subcontractors, materialmen, laborers,
or others, including all parties who have served notices to owner, sufficient to
assure that the rights of all contractors, subcontractors, architects,
engineers, surveyors, sub-subcontractors and materialmen performing any work in
connection with the portion of the Project as to which payment of a requisition
is requested, or furnishing any services, labor or materials thereto shall be
subordinate and inferior to the Mortgage.
(c) There shall exist no Default or Event of Default under this
Agreement, and the Company shall not be in default in any material respect under
any other instrument with respect to any indebtedness or obligations owing to
the Bank.
(d) There shall be no eminent domain or other government or
judicial action or proceeding, of any nature, pending or threatened against the
Project or any part thereof.
(e) The Bank shall have received the following documents and
materials relating to the Project which shall be satisfactory in substance and
in form to the Bank:
(1) copies of all permits necessary for construction of the
Project pursuant to the plans and specifications, including any
necessary building permits for the Project;
(2) copies of all construction contracts relating to the Project
of all lienors in privity with the Company or HEICO.
(3) Back-up documentation for the requisition, including invoices
for soft costs and equipment and, if applicable, for hard construction
costs;
28
(4) If requisition covers material pieces of equipment, it must
be accompanied by individual invoices and lists of equipment being
purchased;
(5) Unless otherwise waived by the Bank, each requisition for
equipment or other personalty shall be accompanied by UCC-1 financing
statements naming the Company as debtor and the Bank and the Trustee as
secured parties, providing a detailed description of such equipment or
other personalty, or filing, at the expense of the Company, with the
Florida Secretary of State and in the public records of Broward County,
Florida and a UCC-11 search report of the records of the Florida
Secretary of State with respect to the Company; and
(6) such other evidence or back-up documentation as the Bank or
the Bank's counsel reasonably deems necessary.
(f) The Company shall have fully complied with all of the
covenants set forth herein; there shall be no breach of the Company's or any
Guarantor's representations and warranties set forth herein; each condition to
the approval of a requisition shall have been met or waived in writing by the
Bank; all of the other terms, provisions and conditions of this Agreement shall
have been complied with by the Company and the Guarantors; and the Project shall
not have suffered any material damage or loss.
(g) The portions of the Project for which reimbursement is being
requested shall have been constructed in strict compliance with the plans and
specifications and the construction thereof and materials used therein shall
have been in strict compliance with the plans and specifications and shall have
been certified to be so by the Company.
(h) The Company shall have furnished satisfactory proof to the
Bank that the undisbursed proceeds of the Construction Fund will be sufficient
to pay all remaining costs and expenses of the Project after taking into account
the Company's equity in the Project.
(i) The Bank shall have received a title insurance policy in form
and amount acceptable to the Bank and a survey in form, and with certification,
acceptable to the Bank.
(j) Prior to the final requisition from the Construction Fund,
the Bank shall have received (i) a certificate of completion or other similar
evidence of completion from the City of Hollywood, Florida for the roof
replacement, (ii) a certificate of completion or other similar evidence of
completion from the City of Hollywood, Florida related to the interior
renovation, (iii) final contractors' affidavits, (iv) final lien waivers and (v)
a final
29
owner's affidavit, all in form and substance satisfactory to the Bank.
Requisitions from the Construction Fund shall be submitted to the
Bank for approval no more frequently than once per calendar month.
The Bank or its representatives may, but shall not be obligated
to, make inspections of the Project upon receipt of a request for approval of a
requisition for disbursement from the Construction Fund to determine whether the
Project conforms to applicable law and regulations and is in compliance with the
plans and specifications. Such inspections if made shall be for the sole and
exclusive benefit of the Bank and shall not be for the direct or indirect
benefit of any other person or party.
SECTION 8. EVENTS OF DEFAULT. The occurrence of any of the
following events shall be an "Event of Default" hereunder unless waived by the
Bank pursuant to Section 10 hereof:
(a) Subject to the provisions of Section 9 hereof, the Company
shall fail to pay when due any amount referred to in Section 2(c)(i) or 2(c)(ii)
hereof;
(b) The Company shall fail to pay when due any other amount
referred to in Section 2 hereof, and such failure shall remain unremedied for
ten (10) days;
(c) Any representation or warranty (i) made by the Company
pursuant to Section 5 hereof, (ii) contained in any certificate delivered in
connection with this Agreement, or (iii) made to the Bank concerning the
financial condition or credit worthiness of the Company shall prove to have been
false or misleading in any material respect when made;
(d) The Company shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those referred to
in clauses (a), (b) and (c) above) and such failure shall continue for thirty
(30) days after notice of such Default shall have been given to the Company by
the Bank; provided, however, that no Event of Default shall be deemed to have
occurred under this subsection (d) if, in the reasonable opinion of the Bank,
corrective action has been instituted by the Company within the thirty-day
period after notice of default has been given to the Company and in being
diligently pursued; provided, however, that the additional period for pursuit of
such corrective action shall in no event exceed thirty (30) days beyond the
expiration of the thirty-day period following notice from the Bank to the
Company;
(e) The obtaining by any Person of an order or decree in any
court of competent jurisdiction enjoining or prohibiting the
30
Company or the Bank or either of them from consummating the transactions
contemplated by this Agreement;
(f) An "Event of Default" (as defined in the Indenture) shall
have occurred and be continuing under the Indenture;
(g) An "Event of Default" (as defined in the Loan Agreement)
shall have occurred and be continuing under the Loan Agreement;
(h) Any payment obligation of the Company included in this
Agreement or any Guarantor under a Guaranty shall at any time for any reason
cease to be valid and binding on the Company, or shall be declared to be null
and void, or the validity or enforceability thereof shall be contested by the
Company, a Guarantor or any governmental agency or authority or the Company or
any Guarantor shall deny, in whole or in part, that it has any or further
liability or obligation under this Agreement or a Guaranty;
(i) The Company or any one or more of the Guarantors shall (i)
apply for or consent to the appointment of a receiver, trustee in bankruptcy for
benefit of creditors, or liquidator of it or of any of its property; (ii) admit
in writing its inability to pay its debts as they mature or generally fail to
pay its debts as they mature; (iii) make a general assignment for the benefit of
creditors; (iv) be adjudicated as bankrupt or insolvent; (v) file a voluntary
petition in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors, or seeking to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation
alleged in a petition filed against it in any proceeding under any such law; or
(vi) take any corporate action for the purpose of effecting any of the
foregoing;
(j) An order, judgment or decree shall be entered against the
Company or any Guarantor, without its application, approval or consent, or by
any court of competent jurisdiction, approving a petition seeking its
reorganization or appointing a receiver, trustee or liquidator of the Company or
a Guarantor or Guarantors, or of all or a substantial part of the assets
thereof, and such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) days from the date of entry thereof;
(k) Final judgments, excluding claims covered by insurance, for
the payment of money in excess of Two Hundred Fifty Thousand Dollars
($250,000.00) in the aggregate, shall be rendered against the Company or any
Guarantor and/or Guarantors, and the same shall remain undischarged for a period
of thirty (30) consecutive days, during which execution shall not be effectively
stayed, provided that a judgment shall be deemed "final" only when the time for
appeal shall have expired without an appeal having
31
been claimed, or all appeals and further review claimed have been determined
adversely to it (however, a final judgment entered in favor of Bank incident to
a default under the Second Mortgage or the SunTrust Bank Loan Agreement, or any
document, instrument or agreement executed in connection therewith, shall not be
an Event of Default under this subparagraph);
(l) There shall be any material adverse change in the
financial condition of the Company and the Guarantors, taken as a whole;
(m) Any moneys, deposits or other property of the Company or any
Guarantor, now or hereafter on deposit with, or in the possession or under
control of the Bank, shall be attached or become subject to distraint
proceedings or any order or process of court, unless the same is either
dismissed or transferred to bond in accordance with applicable law, within
thirty (30) days of commencement;
(n) Any permits or licenses, the absence of which would have a
material adverse effect on the business of the Company and the Guarantors, taken
as a whole, are suspended or revoked;
(o) The Company or any one or more of the Guarantors shall
default and fail to make payment of principal or interest on any of their
indebtedness owed to third parties (other than the Bank) beyond any applicable
period of grace with respect thereto (if any), or fail in the performance of any
other agreement, term or condition contained in any agreement under which any
such obligation is created, if the effect of such default or failure is to cause
or permit the holder or holders of such obligation to accelerate the maturity
thereof and has a material adverse affect on the business of the Company and the
Guarantors, taken as a whole;
(p) The Company shall agree to entering into an indenture or
indentures supplemental to the Indenture without the written consent of the Bank
or shall agree to any amendment, change or modification of the Loan Agreement
without the consent of the Bank;
(q) The Company shall default under, or fail to timely perform
any of its obligations under, the Environmental Indemnity or the ADA Indemnity;
or
(r) An "Event of Default" shall occurred be continuing under the
First Reimbursement Agreement.
Notwithstanding the foregoing or any other provision of this
Agreement, the Mortgage or any other Related Document to the contrary, default
under the Second Mortgage or the SunTrust Bank Loan Agreement and/or any
document, instrument or agreement
32
executed in conjunction therewith shall not constitute an Event of Default under
the Mortgage, this Agreement or any Related Document.
The Company acknowledges and confirms that an Event of Default
hereunder shall constitute a breach of and default under the First Reimbursement
Agreement, the Second Mortgage and the SunTrust Bank Loan Agreement.
SECTION 9. RIGHTS AND REMEDIES.
(a) DEFAULTS UNDER THIS AGREEMENT. Notwithstanding any provision
hereof to the contrary, upon the occurrence and during the continuance of an
Event of Default hereunder, the Bank, in its sole discretion, may do any or all
of the following:
(i) send notice and a request to accelerate to the Trustee under
Section 9.01 of the Indenture, whereupon the Trustee shall immediately
declare the Bonds to be immediately due and payable and an amount equal
to the amount drawn under the Letter of Credit in connection with such
declaration shall become immediately due and payable by the Company
without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by the Company; and
(ii) in the event that an Event of Default hereunder may be cured by
the Bank by the payment of money, the Bank is hereby authorized at any
time and from time to time, without notice to the Company (any such
notice being expressly waived by the Company), to set off and apply any
and all amounts held on deposit in the Cash Collateral Account against
any and all of the obligations of the Company now or hereafter existing
hereunder, irrespective of whether or not the Bank shall have made any
demand hereunder and although such obligations may be contingent and
unmatured, and without waiving any other right that the Bank may have
against the Company; and
(iii) exercise any rights and remedies available to it by law or
under this Agreement, the Mortgage or the Guaranties or any of them or
under any other Related Document.
(b) DEFAULTS UNDER RELATED DOCUMENTS. The Bank may cure a default
by the Company under any of the Related Documents or Company Documents that may
be cured by the payment of money; provided, however, that nothing contained
herein shall obligate the Bank to cure such default and no such payment shall be
deemed to constitute a waiver of any right of the Bank against the Company in
respect of such default. All sums so paid shall be for the account of the
Company, and the Company shall reimburse the Bank for all such sums on demand
therefor, with interest at the Interest Rate from the date of such advance by
the Bank until the date of reimbursement.
33
(c) RIGHT TO ADVANCE OR POST FUNDS. In the event of any default
or event of default under any of the Related Documents or Company Documents, or
if the Bank at any time in good faith determines that an event or condition
exists which could endanger, in its reasonable opinion, the Project or impede
the fulfillment or satisfaction of any condition or term of this Agreement or
any of the Company Documents or Related Documents, the Bank may cure such
default or event of default, or advance funds for the account of the Company to
correct such event or condition, in such manner as the Bank deems proper,
without prejudice to the Company's rights, if any, to recover such funds from
the party to whom paid. Such advances may be pursuant to such agreements as the
Bank deems proper, and may include agreements to indemnify a title insurer
against possible assertion of lien claims or to pay disputed amounts to
contractors if the Company is unable or unwilling to pay them. All sums so
advanced by the Bank to cure any such default or event of default or to correct
any such event or condition, or which are agreed to be paid pursuant to any such
agreement, shall be for the account of the Company, shall be reimbursed to the
Bank by the Company upon demand (with interest at the Interest Rate from the
date of such advance by the Bank until the date of reimbursement). Nothing in
this Agreement shall be construed as imposing under any circumstances any
obligation upon the Bank to cure any Default or Event of Default of the Company
under this Agreement or default or event of default under any of the Related
Documents or Company Documents, or otherwise to perform any of the Company's
obligations hereunder or thereunder.
(d) REMEDIES ARE CUMULATIVE. All remedies of the Bank provided
for herein are cumulative and shall be in addition to any and all other rights
and remedies provided in any document or by law. The exercise of any rights of
the Bank hereunder shall not in any way constitute a cure or waiver of a Default
hereunder or elsewhere, or invalidate any act done pursuant to any notice of
Default, or prejudice the Bank in the exercise of any of its other rights
hereunder or elsewhere, or invalidate any act done pursuant to any notice of
Default, or prejudice the Bank in the exercise of any of its other rights
hereunder or elsewhere unless, in the exercise of said rights, the Bank realizes
all amounts owed to it hereunder and under any other document.
SECTION 10. WAIVERS, ETC. No waiver of any provision of this
Agreement nor consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given.
SECTION 11. ADDRESSES FOR NOTICES. Any notice shall be
conclusively deemed to have been received by either party hereto and be
effective on the day on which delivered to such party at the address set forth
below or such other address as Such party shall
34
specify to the other party in writing, or if sent prepaid by certified or
registered mail or by telegram or telex (where the receipt of such message is
verified by return) on the third Business Day after the day mailed (or sent),
addressed to such party at said address:
(a) if to the Company:
HEICO Aerospace Corporation
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
With a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
Suite 2100
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(b) if to the Bank:
SunTrust Bank, South Florida, National Association
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Corporate Banking Division
SECTION 12. NO WAIVER; REMEDIES. No failure on the part of the
Bank to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof or otherwise preclude enforcement of any of its rights and
remedies; nor shall any single or partial exercise of any right hereunder
preclude any further exercise thereof or the exercise of any other right. The
Bank need not resort to any particular right or remedy before exercising or
enforcing any other. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 13. INDEMNIFICATION.. The Company shall indemnify and
hold harmless the Bank from and against any and all claims, damages, losses,
liabilities, costs or expenses whatsoever which the Bank may incur (or which may
be claimed against the Bank by the Company or any other person or entity
whatsoever) by reason of or in connection with (a) any breach by the Company of
any representation, warranty or covenant contained in the Agreement or contained
in any certificate by the Company delivered hereunder; and (b) the execution and
delivery or transfer to a successor beneficiary of, or payment or failure to pay
under, the Letter of Credit, provided, however, that the Company shall not be
required to indemnify the Bank for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, directly caused by (i)
the willful misconduct or gross negligence of the
35
Bank in determining whether a sight draft or certificate presented under the
Letter of Credit complied with the terms of the Letter of Credit or (ii) the
Bank's willful failure to pay under the Letter of Credit after the presentation
to it by the Trustee or a successor beneficiary of a sight draft or certificate
strictly complying with the terms and conditions of the Letter of Credit. The
indemnification in this Section 13 is in addition to the Company's reimbursement
and payment obligations contained in Section 2 hereof and in addition to any
other indemnities contained herein.
SECTION 14. CONTINUING OBLIGATION. This Agreement is a continuing
obligation and shall (a) be binding upon the Bank and the Company and their
respective successors, transferees and assigns, and (b)inure to the benefit of
and be enforceable by the Bank and the Company and their respective successors,
transferees and assigns; provided, however, that the Company may not assign or
transfer all or any part of this Agreement without the prior written consent of
the Bank.
SECTION 15. TRANSFER OF LETTER OF CREDIT. The Letter of Credit
may be transferred or assigned without the consent of the Bank, but only to a
successor Trustee under the terms of the Indenture.
SECTION 16. LIABILITY OF THE BANK. The Company assumes all risks
of the acts or omissions of the Trustee and any transferee of the Letter of
Credit with respect to its use of the Letter of Credit; provided, however, this
assumption with respect to the Bank is not intended to, and shall not, preclude
the Company from pursuing such rights and remedies as it may have against the
Trustee at law or under any other agreement. Neither the Bank nor any of its
officers or directors shall be liable or responsible for: (a) the use which may
be made of the Letter of Credit or for any acts or omissions of the Trustee and
any transferee of the Letter of Credit in connection therewith; (b) the form,
validity, sufficiency, accuracy genuineness or legal effect of documents, or of
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (c)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign the Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (d) failure of the Trustee to comply
fully with conditions required in order to draw upon the Letter of Credit; (e)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or otherwise, whether or not they be
in cipher; (f) errors in interpretation of technical terms; (g) any loss or
delay in the transmission or otherwise of any document or draft required in
order to make a draw under the Letter of Credit or of proceeds thereof; (h) any
consequences
36
arising from causes beyond the control of the Bank; (i) payment by the Bank
against presentation of documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit; or (j) any other circumstances
whatsoever in making or failing to make payment under the Letter of Credit;
provided, however, anything in the preceding clauses to the contrary
notwithstanding, the Company shall have a claim against the Bank to the extent,
but only to the extent, of any direct, as opposed to consequential, damages
suffered by the Company which the Company proves were directly caused by the
Bank's willful misconduct or gross negligence in determining whether documents
presented under the Letter of Credit comply with the terms of the Letter of
Credit after the presentation to it by the Trustee (or a successor beneficiary
to whom the Letter of Credit has been transferred in accordance with its terms
and the terms of this Agreement) of a sight draft and certificate and any other
documents or instruments expressly required by the Letter of Credit strictly
complying with the terms and conditions of the Letter of Credit. In furtherance
and not in limitation of the foregoing, the Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any, notice or information to the contrary. Subject
to the foregoing, the determination of whether a draft has been presented under
the Letter of Credit prior to the Expiration Date or whether a draft drawn under
the Letter of Credit or any accompanying document or instrument is in proper and
sufficient form shall be made by the Bank in its sole discretion, which
determination shall be conclusive and binding upon the Company. The Company
hereby waives any right to object to any payment made under the Letter of Credit
against a draft with accompanying documents in the forms provided for in the
Letter of Credit but varying in punctuation, capitalization, spelling or similar
matters of form.
SECTION 17. GOVERNING LAW. All documents executed pursuant to
the transactions contemplated herein, including without limitation this
Agreement and the Letter of Credit shall be deemed to be contracts made under,
and for all purposes shall be construed in accordance with, the internal laws
and judicial decisions of the State of Florida, without regard to principles of
conflicts of laws. THE COMPANY HEREBY SUBMITS TO THE JURISDICTION AND VENUE OF
THE STATE AND FEDERAL COURTS OF FLORIDA FOR PURPOSES OF RESOLVING DISPUTES
HEREUNDER AND THEREUNDER OR FOR THE PURPOSES OF COLLECTION. THE COMPANY HEREBY
AGREES THAT THE FEDERAL AND STATE COURTS IN BROWARD COUNTY, FLORIDA ARE A
CONVENIENT FORUM AND AGREES NOT TO RAISE AS A DEFENSE THAT SUCH COURTS ARE NOT A
CONVENIENT FORUM.
SECTION 18. ASSIGNMENT BY THE BANK. The Bank may assign,
negotiate, pledge or otherwise hypothecate all or any portion of this Agreement
without the prior consent of the Company.
37
SECTION 19. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
SECTION 20. FURTHER ASSURANCES. The Company agrees to do such
further acts and things and to execute and deliver to the Bank such additional
assignments, agreements, powers and instruments, as the Bank may require or deem
advisable to carry into effect the purposes of this Agreement or to better
assure and confirm unto the Bank its rights, powers and remedies hereunder.
SECTION 21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties made in this Agreement and in any
certificates delivered pursuant hereto shall survive the execution and delivery
of this Agreement and the issuance of the Letter of Credit hereunder until any
and all sums payable under this Agreement have been paid in full.
SECTION 22. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 23. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto
on.separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
SECTION 24. TIME. Time is of the essence of this Agreement, and
each and every provision hereof in which time is an element.
SECTION 25. SECURITY AND CASH COLLATERAL ACCOUNT.
(a) Company and Bank hereby confirm that an account entitled
"Yield Restricted Cash Collateral Account/HEICO Aerospace Corporation (the "Cash
Collateral Account") has been established under the Custodial Agreement by
Company with SunTrust Bank, Central Florida National Association, a national
banking association having its principal corporate trust office at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 as custodian for the benefit
of the Bank (the "Custodian"), in the name of Company as security for Company's
obligations under this Agreement. Company shall have no authority to withdraw
any amounts from the Cash Collateral Account and only Bank shall have such
authority in connection with the same. Company hereby agrees that any deposits
into or withdrawals from the Cash Collateral Account now or
38
hereafter directed by Bank in accordance with the terms of this Agreement are
authorized by Company; however, Company acknowledges that Company has no right
to direct such transfers at any time.
(b) Company agrees to deposit into the Cash Collateral Account
the sum of $15,625 on the first day of October, 2000, and a like amount on the
first day of each month thereafter during the remaining term of the Letter of
Credit.
(c) The parties acknowledge that the funds held in the Cash
Collateral Account will be invested by Custodian in its corporate trust
department securities accounts, in accordance with the written instructions from
Bond Counsel delivered to Bank contemporaneously herewith (the "Tax Letter") and
in accordance with written instructions delivered by Company to Bank and
Custodian, from time to time, consistent with the terms of the Tax Letter. The
Company acknowledges that the Tax Letter is being delivered to Bank so that the
return on investments made on the funds in the Cash Collateral Account will not
render the Bonds "arbitrage bonds" within the meaning of the applicable sections
of the Code, and applicable regulations promulgated thereunder. Company will not
give Bank written instructions directing the Bank to make investments which are
contrary to the instructions set forth in the Tax Letter and Company agrees to
indemnify and hold harmless Bank of and from any and all liability arising from
a determination that the Bonds are "arbitrage bonds" by virtue of the return on
the funds deposited in the Cash Collateral Account, so long as Bank makes the
investments in accordance with Company's written instructions. All investment
earnings on the Cash Collateral Account shall be retained therein.
(d) As collateral security for the Payment Obligations, whether
now existing or hereafter arising, whether direct or indirect, absolute or
contingent, Company hereby assigns, pledges and transfers to Bank all of its
rights, title and interest in and to the Cash Collateral Account and all sums
now or hereafter on deposit in or payable or withdrawable from said Cash
Collateral Account and any interest accrued or payable thereon. Upon an Event of
Default, Bank shall have the full and irrevocable right, power and authority to
demand, collect, withdraw, receipt for or xxx for all amounts due, to become due
and payable hereunder from the Cash Collateral Account and at Bank's discretion
take any other action, including the transfer of said Cash Collateral Account to
Bank's own name, which Bank deems necessary or appropriate to preserve or
protect the security interests of Bank in the Cash Collateral Account and to
apply the same to pay all or any amounts due hereunder. Upon an Event of
Default, Bank shall have all of the rights and remedies provided by Section 9
hereof and applicable law. Company agrees to execute a UCC-1 Financing Statement
stating that the Cash Collateral Account and the investments held therein are
"general intangibles" or "instruments" within the meaning of Article 9 of the
Florida Uniform Commercial Code, to be filed with
39
the Secretary of State. Notwithstanding the foregoing or anything to the
contrary herein, however, the Bank shall not withdraw funds from the Cash
Collateral Account to make payments of draws under the Letter of Credit but may
apply such funds to reimburse itself for amounts due the Bank hereunder after
the occurrence of an Event of Default.
(e) Upon the expiration or termination of the Letter of Credit
and payment in full of the Payment Obligations and all other amounts payable
hereunder, as acknowledged in writing to the Custodian by the Bank, all funds
held in the Cash Collateral Account, together with all interest and earnings
thereon then remaining on deposit in the Cash Collateral Account, shall be
returned to Company.
(f) Upon the request of the Bank, the Company shall, at the
expense of the Company, execute and deliver a UCC-1 financing statement to be
filed in the office of the Florida Secretary of State naming the Company as
debtor and the Bank as secured party, providing a description of the Cash
Collateral Account as follows: "All moneys held in the Yield Restricted Cash
Collateral Account/HEICO Aerospace Corporation created pursuant to that certain
Custodial Agreement dated as of October 1, 1996, by and among Debtor, Secured
Party and SunTrust Bank, Central Florida, National Association, as custodian,
and any additions to, renewals, reinvestments, substitutions and proceeds
thereof."
SECTION 26. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
MUTUALLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED
OR TO BE EXECUTED IN CONJUNCTION HEREWITH, UNDER ANY OF THE COMPANY DOCUMENTS OR
RELATED DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THE COMPANY ACKNOWLEDGES
THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE BANK IN ACCEPTING
THIS AGREEMENT AND THAT THE BANK WOULD NOT HAVE ACCEPTED THIS AGREEMENT WITHOUT
THIS JURY TRIAL WAIVER AND THAT THE COMPANY HAS BEEN REPRESENTED BY AN ATTORNEY
OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THIS JURY TRIAL
WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS JURY TRIAL WAIVER.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers and authorized
representatives thereunto duly authorized as of the date first above written.
Signed, sealed and HEICO AEROSPACE CORPORATION,
delivered in the a Florida corporation
presence of:
_________________________ By _____________________________
Its_____________________________
_________________________
(SEAL)
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION
(SEAL) By ______________________________
Its______________________________
41
IRREVOCABLE LETTER OF CREDIT
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION
000 Xxxx Xxx Xxxx Xxxxxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
October 18, 1996
IRREVOCABLE LETTER OF CREDIT NO. F070279
SunTrust Bank, Nature Coast, as Trustee
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
At the request and on the instructions of our customer, HEICO
Aerospace Corporation, a Florida corporation (the "Company"), we hereby
establish in your favor, as Trustee under the Indenture of Trust, dated as of
October 1, 1996 (the "Indenture") between Broward County, Florida (the "Issuer")
and you pursuant to which $3,500,000 in aggregate principal amount of the
Issuer's Industrial Development Revenue Bonds (HEICO Aerospace Corporation
Project), Series 1996 (the "Bonds") may be issued, this Irrevocable Letter of
Credit in the initial amount of $3,563,195 (hereinafter, as reduced from time to
time in accordance with the provisions hereof, the "Stated Amount") of which (i)
an amount not exceeding $3,500,000 (as reduced from time to time in accordance
with the terms hereof (the "Principal Component"), may be drawn upon with
respect to payment of the unpaid principal amount or the portion of Purchase
Price corresponding to principal of the Bonds, and (ii) an amount not exceeding
$63,195 (as reduced from time to time in accordance with the terms hereof, the
"Interest Component") may be drawn upon with respect to payment of interest
accrued or the portion of Purchase Price corresponding to interest accrued on
the Bonds on or prior to their stated maturity date, effective immediately and
expiring on October 16, 2001, unless terminated earlier in accordance with the
provisions hereof or unless otherwise renewed or extended. All drawings under
this Letter of Credit will be paid with our own funds.
Funds under this Letter of Credit will be made available to you
against receipt by us of the following items at the time required below: (A) if
the drawing is being made with respect to the payment of the portion of the
Purchase Price of Bonds delivered to the Tender Agent (as defined in the
Indenture) pursuant to Section 2.02(c), 3.08, 4.01, 4.02 or 4.04 of the
Indenture, corresponding to the principal thereof (an "A Drawing"), receipt by
us of your written certificate in the form of Exhibit A attached hereto
appropriately completed and signed by an Authorized Officer; (B) if the drawing
is being made with respect to the payment of principal of the Bonds (a "B
Drawing"), receipt by us of your written certificate in the form of Exhibit B
attached hereto appropriately completed and signed by an Authorized Officer; and
(C) if the drawing is being made with respect to the payment of interest, or the
portion of Purchase Price corresponding to interest, on the Bonds (a "C
Drawing"), receipt by us of your written certificate in the form of Exhibit C
attached hereto appropriately completed and signed by an Authorized Officer.
Presentation of such certificate(s) shall be made at our office located at
SunTrust Bank, South Florida, National Association, c/o SunTrust International
Services, Inc., 00 Xxxx Xxxxx, 00xx Xxxxx-0000, Xxxxxxx, Xxxxxxx 00000, or at
any other office which may be designated by us by written notice delivered to
you.
If a drawing is made by you hereunder at or prior to 4:00 P.M.,
New York City time, on a Business Day, and provided that the requirements set
forth above have been strictly satisfied and that such drawing and the documents
presented in connection therewith conform to the terms and conditions hereof,
payment shall be made to you, or to your designee, of the amount specified in
immediately available funds, not later than 12:00 Noon, New York City time, on
the next succeeding Business Day or not later than 12:00 Noon, New York City
time, on such later Business Day as you may specify. If requested by you,
payment under this Letter of Credit will be made by deposit of immediately
available funds into a designated account that you maintain with us. If a demand
for payment made by you hereunder does not, in any instance, conform to the
terms and conditions of this Letter of Credit, we shall give you notice that the
demand for payment was not effected in accordance with the terms and conditions
of this Letter of Credit, stating the reasons therefor and that we will upon
your instructions hold any documents at your disposal or return the same to you.
Upon being notified that the demand for payment was not effected in conformity
with this Letter of Credit, you may attempt to correct any such non-conforming
demand for payment to the extent that you are entitled to do so. As used herein,
the term "Business Day" shall mean a day on which you, SunTrust Bank, South
42
Florida, National Association, and banks located in Orlando, Florida, Fort
Lauderdale, Florida and Atlanta, Georgia are required or permitted by law to be
open for the purpose of conducting a banking business.
Demands for payment hereunder honored by us shall not, in the
aggregate, exceed the Stated Amount, as the Stated Amount may have been
reinstated by us as provided in the next paragraph. Subject to the preceding
sentence, each "A Drawing" and each "B Drawing" honored by the Bank hereunder
shall PRO TANTO reduce the Principal Component, and each "C Drawing" honored by
the Bank hereunder shall PRO TANTO reduce the Interest Component; any such
reduction shall result in a corresponding reduction in the Stated Amount, it
being understood that after the effectiveness of any such reduction you shall no
longer have any right to make a drawing hereunder in respect of the amount of
such principal and/or interest on the Bonds or the payment of Purchase Price
corresponding thereto.
Upon release by us or on our behalf of any "Pledged Bonds" (as
defined in the Indenture), the Principal Component shall be reinstated
automatically by the principal amount of such Pledged Bonds. In addition, (i) if
you shall not have received, within ten Business Days after any payment in
respect of a "C Drawing", written notice from us that an Event of Default under
the SunTrust Bank Reimbursement Agreement dated as of October 1, 1996 by and
between the Company and us has occurred and is continuing, the Interest
Component shall be reinstated automatically, as of the close of business on such
tenth Business Day (unless the Interest Component previously has been reinstated
with respect to such "C Drawing"), by the amount of such "C Drawing" and (ii)
upon the release by us or on our behalf of any Pledged Bonds, the Interest
Component shall be reinstated automatically by the amount of the "C Drawing"
made to pay the portion of the Purchase Price corresponding to interest on such
Pledged Bonds (unless the Interest Component previously has been reinstated with
respect to such "C Drawing"); provided, however, that in no event shall the
Interest Component be reinstated to an amount in excess of 50 days' interest
(such amount computed as set forth in the second succeeding paragraph) on the
sum of the then applicable Principal Component plus the aggregate principal
amount of any Pledged Bonds.
Only you or your successor as Trustee may make a drawing under
this Letter of Credit. Upon the payment to you, to your designee or to your
account of the amount demanded hereunder, we shall be fully discharged on our
obligation under this Letter of Credit with respect to such demand for payment
and we shall not thereafter be obligated to make any further payments under this
Letter of Credit in respect of such demand for payment to you or any other
person who may have made to you or makes to you a demand for payment of
principal of, Purchase Price of, or interest on, any Bond. By paying to you an
amount demanded in accordance herewith, we make no representation as to the
correctness of the amount demanded.
This Letter of Credit applies only to the payment of principal or
the portion of Purchase Price of the Bonds corresponding to principal, and up to
50 days' interest accruing on the Bonds (computed at a rate of 13% per annum),
from the Date of Issuance through the Termination Date (computed on the basis of
(i) actual days elapsed in a 365- or 366-day year, as the case may be, so long
as the Interest Period is one week or one month in duration, and (ii) a 360-day
year comprised of twelve 30-day months, so long as the Interest Period is three
months or six months in duration, and does not apply to any interest that may
accrue thereon or any principal, premium or other amounts which may be payable
with respect to the Bonds subsequent to the expiration of this Letter of Credit.
Upon the earliest of (i) the honoring by us of the final drawing
available to be made hereunder, (ii) receipt of a certificate signed by an
Authorized Officer and a duly authorized officer of the Company stating that:
"(a) the conditions precedent to the acceptance of a Substitute Letter of Credit
(as defined in the Indenture) have been satisfied, (b) the Trustee has accepted
the Substitute Letter of Credit and (c) on the effective date of the Substitute
Letter of Credit, and after receipt by SunTrust Bank, South Florida, National
Association of this certificate, SunTrust Bank, South Florida, National
Association Irrevocable Letter of Credit No. F070279 shall terminate," (iii)
receipt of a certificate signed by an Authorized Officer stating that no Bonds
remain Outstanding (as defined in the Indenture), (iv) fifteen days after the
Conversion Date (as defined in the Indenture), and (v) the stated expiration
date hereof, this Letter of Credit shall automatically terminate and be
delivered to us for cancellation.
Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to us at SunTrust Bank, South Florida, National
Association, c/o SunTrust International Services, Inc., 00 Xxxx Xxxxx, 00xx
Xxxxx-0000, Xxxxxxx, Xxxxxxx 00000, specifically referring thereon to this
Letter of Credit by number.
We agree to issue a substitute letter of credit to any successor
trustee (and to successively replace any such substitute letter of credit) upon
the return to us for cancellation of the original of the letter of credit to be
replaced, accompanied by a request relating to such letter of credit, which (i)
shall be substantially in the form of Exhibit D attached hereto with the
43
blanks appropriately completed, (ii) shall be signed by an Authorized Officer,
(iii) shall specify where indicated therein the same letter of credit number as
the number of the letter of credit to be replaced and (iv) shall state the name
and address of the successor trustee. Each substitute letter of credit will be
in substantially the form of this Letter of Credit except for the date and
letter of credit number.
As used herein (a) "Authorized Officer" shall mean any person
signing as one of your Vice Presidents, Assistant Vice Presidents, Trust
Officers or Assistant Trust Officers; and (b) all other capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
such terms in the above-mentioned Indenture.
This Letter of Credit sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds), except only the certificate(s)
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificate(s).
This credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs"). This Letter of Credit shall be
deemed to be a contract made under the laws of the State of Florida and shall,
as to matters not governed by the Uniform Customs, be governed by and construed
in accordance with the laws of such State.
Very truly yours,
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION
By:____________________________________
Title:
By:____________________________________
Title:
44
EXHIBIT A
CERTIFICATE FOR "A DRAWING"
[Date]
SunTrust Bank, South Florida,
National Association
c/o SunTrust International Services, Inc.
00 Xxxx Xxxxx, 00xx Xxxxx-0000
Xxxxxxx, Xxxxxxx 00000
RE: IRREVOCABLE LETTER OF CREDIT NO. F070279
The undersigned, a duly authorized officer of SunTrust Bank,
Nature Coast (the "Trustee"), hereby certifies to SunTrust Bank, South Florida,
National Association (the "Bank") that:
(1) The undersigned is the Trustee under the Indenture (as
hereinafter defined) for the holders of the Bonds.
(2) The undersigned, in its capacity as Trustee, is making a
drawing under the above-referenced Letter of Credit in the amount of
$___________ with respect to payment of the portion of the purchase
price of Bonds corresponding to the principal amount thereof, which
Bonds are to be purchased pursuant to Section [2.02(c)] [3.08] [4.01]
[4.02] or [4.04] of the Indenture (as hereinafter defined).
(3) The amount demanded hereby does not exceed the amount
available on the date hereof to be drawn under the above-referenced
Letter of Credit in respect of the portion of the Purchase Price of
Bonds corresponding to the principal amount thereof.
(4) The amount demanded hereby does not include any amount in
respect of the purchase of any Pledged Bonds.
(5) Upon receipt by the undersigned of the amount demanded
hereby, (a) the undersigned will apply the same directly to the payment
when due of the principal amount owing on account of the purchase of
Bonds pursuant to the Indenture (as hereinafter defined) and, upon
receipt of written request by the Bank, will cause the Tender Agent to
deliver to the Bank Pledged Bonds in an aggregate principal amount equal
to the amount demanded hereby (together with any and all due bills for
interest due on the next succeeding interest payment date delivered
pursuant to Section 4.04 of the Indenture (as hereinafter defined) in
respect of such Pledged Bonds), (b) no portion of said amount shall be
applied by the undersigned for any other purpose and (c) no portion of
said amount shall be commingled with other funds held by the
undersigned.
(6) With respect to any drawing hereunder pursuant to Section
3.08 of the Indenture, the undersigned certifies that the Trustee has
received a copy of your written consent to the purchase of Bonds
pursuant to said Section 3.08.
Any capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Indenture of Trust,
dated as of October 1, 1996 between Broward County, Florida and the undersigned,
as Trustee (the "Indenture").
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of ___________, ___.
A-1
SUNTRUST BANK, NATURE COAST,
as Trustee
By:_________________________________
Title:
A-2
EXHIBIT B
CERTIFICATE FOR "B DRAWING"
[Date]
SunTrust Bank, South Florida,
National Association
c/o SunTrust International Services, Inc.
00 Xxxx Xxxxx, 00xx Xxxxx-0000
Xxxxxxx, Xxxxxxx 00000
RE: IRREVOCABLE LETTER OF CREDIT NO. F070279
The undersigned, a duly authorized officer of SunTrust Bank,
Nature Coast (the "Trustee"), hereby certifies to SunTrust Bank, South Florida,
National Association (the "Bank") that:
(1) The undersigned is the Trustee under the Indenture (as
hereinafter defined) for the holders of the Bonds.
(2) The undersigned, in its capacity as Trustee, is making a
drawing under the above-referenced Letter of Credit in the amount of
$_________ with respect to the payment of principal of the Bonds, which
amount has, or will, on the Business Day immediately following the date
hereof, become due and payable pursuant to the Indenture (as hereinafter
defined), upon maturity or as a result of acceleration or redemption of
the Bonds.
(3) The amount demanded hereby does not include any amount in
respect of the principal amount of any Pledged Bonds.
(4) The amount demanded hereby, together with the aggregate of
all prior payments made pursuant to "B Drawings" under the
above-referenced Letter of Credit, does not exceed $_________.
(5) The amount demanded hereby does not exceed the amount
available on the date hereof to be drawn under the above-referenced
Letter of Credit in respect of the principal of the Bonds.
(6) Upon receipt by the undersigned of the amount demanded
hereby, (a) the undersigned will apply the same directly to the payment
when due of the principal amount owing on account of the Bonds pursuant
to the Indenture (as hereinafter defined), (b) no portion of said amount
shall be applied by the undersigned for any other purpose and (c) no
portion of said amount shall be commingled with other funds held by the
undersigned.
Any capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Indenture of Trust,
dated as of October 1, 1996 between Broward County, Florida and the undersigned,
as Trustee (the "Indenture").
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ______ day of _________, ____.
SUNTRUST BANK, NATURE COAST,
as Trustee
By:________________________________
Title:
B-1
B-2
EXHIBIT C
CERTIFICATE FOR "C DRAWING"
[Date]
SunTrust Bank, South Florida,
National Association
c/o SunTrust International Services, Inc.
00 Xxxx Xxxxx, 00xx Xxxxx-0000
Xxxxxxx, Xxxxxxx 00000
RE: IRREVOCABLE LETTER OF CREDIT NO. F070279
The undersigned, a duly authorized officer of SunTrust Bank,
Nature Coast (the "Trustee"), hereby certifies to SunTrust Bank, South Florida,
National Association (the "Bank") that:
(1) The undersigned is the Trustee under the Indenture (as
hereinafter defined) for the holders of the Bonds.
(2) The undersigned, in its capacity as Trustee, is making a
drawing under the above-referenced Letter of Credit in the amount of
$___________ with respect to payment of [the portion of the purchase
price of $___________ in principal amount of the Bonds corresponding to
the accrued interest thereon, which Bonds are to be purchased pursuant
to Section 3.08 or 4.04 of the Indenture (as hereinafter defined)
[interest on the Bonds, which amount has accrued and become due and
payable pursuant to the Indenture (as hereinafter defined), upon a
stated interest payment date or as a result of acceleration or
redemption of the Bonds]1 [interest on the Bonds, which has accrued or
will accrue during the calendar month for which this drawing is being
submitted, less, with respect to the final drawing of the Interest
Period (as defined in the Indenture, as that term is hereinafter
defined), investment earnings (if any) on any previous amounts drawn
under the Letter of Credit, which investment earnings are on deposit in
the Letter of Credit Account of the Bond Fund]2.
(3) The amount demanded hereby does not exceed the amount
available on the date hereof to be drawn under the above-referenced
Letter of Credit in respect of interest on the Bonds.
(4) The amount demanded hereby does not include any amount in
respect of the interest on any Pledged Bonds.
(5) Upon receipt by the undersigned of the amount demanded
hereby, (a) the undersigned will apply the same directly to the payment
when due of the [interest owing on account of the Bonds pursuant to the
Indenture (as hereinafter defined)] [portion of the Purchase Price of
Bonds pursuant to Section 3.08 or 4.04, as applicable, of the Indenture
(as hereinafter defined) corresponding to accrued interest thereon], (b)
no portion of said amount shall be applied by the undersigned for any
other purpose and (c) no portion of said amount shall be commingled with
other funds held by the undersigned.
--------
1 For use when Interest Period (as defined in Indenture) is seven
days days one month in duration.
2 For use when Interest Period is three months or six
months in duration.
C-1
(6) With respect to any drawing hereunder pursuant to Section
3.08 of the Indenture, the undersigned certifies that the Trustee has
received a copy of your written consent to the purchase of Bonds
pursuant to said Section 3.08.
Any capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Indenture of Trust,
dated as of October 1, 1996 between Broward County, Florida and the undersigned,
as Trustee (the "Indenture").
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of _________, ____.
SUNTRUST BANK, NATURE COAST,
as Trustee
By:___________________________________
Title:
C-2
EXHIBIT D
INSTRUCTION TO ISSUE SUBSTITUTE LETTER OF CREDIT
[Date]
SunTrust Bank, South Florida,
National Association
c/o SunTrust International Services, Inc.
00 Xxxx Xxxxx, 00xx Xxxxx-0000
Xxxxxxx, Xxxxxxx 00000
RE: IRREVOCABLE LETTER OF CREDIT NO. F070279
Ladies and Gentlemen:
Reference is made to (i) the above-referenced letter of credit
(the "Old Letter of Credit") and (ii) the Indenture of Trust dated as of October
1, 1996 (the "Indenture") between Broward County, Florida and us.
[Name and address of successor trustee] (the "Successor Trustee")
has been appointed successor trustee under the Indenture. The Successor Trustee
has been properly appointed and qualified pursuant to Article X of the
Indenture. You are hereby requested to issue, in accordance with the terms of
the Old Letter of Credit, a new letter of credit to the Successor Trustee having
the same terms and providing for the same Stated Amount as the Old Letter of
Credit.
We submit herewith for cancellation the original of the Old
Letter of Credit.
The individual signing below on our behalf hereby represents that
he or she is duly authorized to so sign on our behalf.
Very truly yours,
SUNTRUST BANK, NATURE COAST,
as Trustee
By:___________________________________
Title:
D-1
