EXHIBIT 4.14
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(Arvida-II)
LETTER OF CREDIT
REIMBURSEMENT AGREEMENT
Among
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
BANK OF AMERICA ILLINOIS
and
ARVIDA/JMB PARTNERS, L.P.-II
relating to the
Talega Project
Orange County, California
Dated as of May 30, 1997
LETTER OF CREDIT
REIMBURSEMENT AGREEMENT
=======================
THIS LETTER OF CREDIT REIMBURSEMENT AGREEMENT (this "Reimbursement
Agreement"), dated as of May 30, 1997, is made by and between ARVIDA/JMB
PARTNERS, L.P. II, a Delaware limited partnership ("Borrower") on the
one hand, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, and BANK OF AMERICA ILLINOIS, an Illinois
banking corporation, formerly known as Continental Bank N.A. and
Continental Bank (collectively, the "Bank"). In consideration of the
mutual agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower and Bank hereby covenant and agree as follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. For purposes of this Reimbursement
Agreement, the following capitalized terms shall have the following
respective defined meanings:
"BANK" means collectively Bank of America Illinois, an
Illinois banking corporation, formerly known as Continental Bank N.A.
and Continental Bank, and Bank of America National Trust and Savings
Association, a national banking association, in their capacities as
Managing Co-Agents.
"BANKING DAY" means any day other than Saturday,
Sunday, or other day on which banking institutions in Los Angeles,
California are obligated by law to close or on which banking
institutions in Los Angeles, California are authorized to close by law
and Bank is closed.
"BORROWER" means Arvida/JMB Partners, L.P. II, a
Delaware limited partnership.
"CASH COLLATERALIZE" means to pledge and deposit with
Bank, as additional collateral for the Letter of Credit Obligations,
cash or deposit account balances pursuant to documentation in a form and
substance acceptable to Bank.
"DEFAULT RATE" means three (3) percentage points over
the Reference Rate.
"EVENT OF DEFAULT" means any of the events described
in SECTION 4.1 below.
"INDEMNIFICATION AGREEMENT" means that certain
Indemnification Agreement dated as of May 30, 1997, by Catellus
Residential Group, Standard Pacific of Orange County, Inc., and Starwood
Opportunity Fund IV, L.P., in favor of Borrower.
"LC PAYMENT DATE" shall have the meaning set forth in
SECTION 2 below.
"LETTER OF CREDIT OBLIGATIONS" means the sum of (a)
the aggregate undrawn amount of the Letters of Credit, PLUS (b) the
amount of all unreimbursed drawings under any of the Letters of Credit.
"LETTERS OF CREDIT" means those certain letters of
credit set forth on the schedule attached hereto as EXHIBIT "A."
"MATURITY DATE" means June 30, 1997.
"REFERENCE DATE" means the rate of interest publicly
announced from time to time by Bank as its "reference rate," which is
based upon various factors including the Bank's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above,
or below the announced rate. Any change in the Reference Rate announced
by Bank shall take effect at the opening of business on the day
specified in the public announcement of such change.
"REIMBURSEMENT AGREEMENT" means this Letter of Credit
Reimbursement Agreement, as originally executed or as supplemented,
modified or amended from time to time.
1.2 ACCOUNTING TERMS. All accounting terms not
specifically defined in this Reimbursement Agreement shall be construed
in conformity with generally acceptable accounting principles.
2. DRAWINGS AND REIMBURSEMENTS. In the event that Bank honors
a drawing under any of the Letters of Credit, Borrower shall reimburse
Bank for the full amount of such drawing by 9:00 a.m. Los Angeles time
on the same date (the "LC Payment Date") such drawing is honored by Bank
under such Letter of Credit. In the event Borrower fails to reimburse
Bank for any such drawing by 9:00 a.m. Los Angeles time on the LC
Payment Date, then such drawing shall be payable by Borrower on demand
by Bank and shall bear interest at the Default Rate until paid in full
as provided further in SECTION 4.3(a) below. The obligations of
Borrower to reimburse Bank under this Reimbursement Agreement and any
other agreement or instrument relating to any of the Letters of Credit
shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Reimbursement Agreement.
3. CANCELLATION OF LETTERS OF CREDIT. On or before the
Maturity Date, Borrower shall cause the beneficiaries of the Letters of
Credit to return the Letters of Credit to Bank marked "cancelled." In
the event that Borrower is unable to cause the beneficiaries of the
Letters of Credit to return the Letters of Credit to Bank by the
Maturity Date, then Borrower shall Cash Collateralize the Letters of
Credit not so returned by not later that 5:00 p.m. Los Angeles time on
the Maturity Date.
4. DEFAULT; REMEDIES.
4.1 EVENT OF DEFAULT. An "Event of Default" shall occur
hereunder (a) upon the failure of Borrower to reimburse Bank for
drawings under any of the Letters of Credit pursuant to the terms of
SECTION 2 above, and (b) upon the failure of Borrower to Cash
Collateralize the Letters of Credit to the extent required pursuant to
SECTION 3 above.
4.2 REMEDIES. Upon the occurrence of any Event of
Default, Bank shall have such rights or remedies as Bank may have under
this Reimbursement Agreement or otherwise at law or in equity, including
but not limited to the right to institute an action against Borrower for
specific performance of the terms and provisions of this Reimbursement
Agreement. Notwithstanding the foregoing, Bank agrees that, prior to
enforcing any remedy against Borrower, Bank shall seek to satisfy the
obligations of Borrower hereunder by enforcing the rights of Bank under
any Guaranty of even date herewith made by Catellus Residential Group,
Standard Pacific Corporation and Starwood Opportunity Fund IV, LP in
favor of Bank.
4.3 LATE CHARGE; DEFAULT INTEREST RATE.
(a) Upon the occurrence and during the continuation of an
Event of Default hereunder, the Letter of Credit Obligations shall bear
interest at the Default Rate.
(b) Borrower acknowledges and agrees that (i) Bank's
actual damages resulting from any default or delinquency of Borrower as
set forth in SECTION 4.3(a) above and that relate to lost use of funds
or costs of internal administration of delinquent payments hereunder or
relating to such default would be extremely difficult to ascertain, and
(ii) under the circumstances in existence as of the date hereof, the
accrual of interest hereunder at the Default Rate constitutes a
reasonable liquidation of such damages. The provisions of the SECTION
4.3 are in addition to the other rights and remedies conferred upon Bank
under this Reimbursement Agreement and shall not limit Bank's right to
compel prompt performance hereunder or be deemed to conflict with the
provisions of SECTION 5.11 of this Reimbursement Agreement.
5. MISCELLANEOUS.
5.1 PAYMENT IN U.S. CURRENCY. All sums due hereunder
shall be payable in lawful money of the United States of America.
5.2 COSTS OF COLLECTION. Borrower promises to pay all cost
and expenses of collection, including without limitation (a) reasonable
attorneys' fees, in the event of collection under this reimbursement
Agreement; (b) reasonable attorneys' fees, as determined by the judge of
the court, or any arbitrator or judicial referee, and all other costs,
expenses and fees incurred by Bank in the event suit or proceeding is
instituted to collect any sums due and payable under this Reimbursement
Agreement; and (c) reasonable attorneys' fees, incurred by Bank in
connection with any bankruptcy, insolvency or reorganization proceeding
or receivership involving Borrower or any affiliate of Borrower,
including without limitation attorneys' fees incurred in making any
appearance in any such proceeding or in seeking relief from any stay or
injunction issued in or arising out of any such proceeding.
5.3 WAIVER OF NOTICE, ETC. Borrower consents to offsets of any
sums owed to it by Bank at any time. No single or partial exercise of,
or forbearance from exercising, any power hereunder or under any
guaranty, or other agreement or instrument securing or pertaining to
this Reimbursement Agreement shall preclude other or further exercises
thereof or the exercise of any other power.
5.4 NO WAIVER BY BANK. Delay or failure by Bank to exercise any
option or election herein given to Bank shall not constitute a waiver of
the right to subsequently exercise such option or any other option or
election herein given to Bank.
5.5 SUCCESSORS AND ASSIGNS; NUMBER; GENDER. The use of the term
"Borrower" shall be deemed to include the successors and assigns of the
undersigned. The use of terms in any gender or number shall include, in
all instances, the masculine, feminine, and neuter gender and the plural
and single number.
5.6 NOTICES. Except as otherwise provided herein, all notices
or communications between Bank and Borrower required or permitted
hereunder shall be in writing and personally delivered or sent by
certified mail, return receipt requested, postage prepaid, or
transmitted by electronic facsimile transmission (with electronic
confirmation of receipt), or sent by reputable overnight courier (such
as Federal Express, UPS or DHL), to the following addresses:
If to Bank:
Bank of America National Trust and Savings Association
600 Wilshire Boulevard, Suite 500
Los Angeles, California
Telefacsimile No.: (213) 228-6318
Attention:Jeannette Jordan
Vice President
with a copy to:
Morrison & Foerster LLP
19900 MacArthur Boulevard, Twelfth Floor
Irvine, California 92612
Telefacsimile No.: (714) 251-0900
Attention: Ronald J. Defelice, Esq.
If to Borrower:
ARVIDA/JMB Partners, L.P. II
c/o JMB Realty
900 North Michigan Avenue
Chicago, Illinois 60611-1575
Telefacsimile No.: (312) 915-2310
Attention: Stephen A. Lovelette
with a copy to:
Nossaman, Gunther, Knox & Elloit, LLP
18101 Von Karman Avenue, Suite 1800
Irvine, California 92612
Telefacsimile No.: (714) 833-7878
Attention: Gregory W. Sanders, Esq.
A notice shall be effective on the date of personal delivery if
personally delivered before 5:00 p.m., otherwise on the day following
personal delivery, or when received, if transmitted by electronic
facsimile transmission (with electronic confirmation of receipt), or two
(2) business days following the date the notice is postmarked, if
mailed, or on the day following delivery to the applicable overnight
courier, if sent by overnight courier. Either party may change the
address to which notices are to be given to it by giving notice of such
change of address in the manner set forth above for giving notice.
5.7 GOVERNING LAW. The Reimbursement Agreement shall be
governed by and construed under the laws of the State of California and
the laws of the Untied States of America prevailing in California
including, but not limited to, the "Uniform Custom and Practice for
Documentary Credits (1993 Revision) International Chamber of commerce
Publication No. 500."
5.8 JOINT AND SEVERAL OBLIGATIONS. If Borrower consists of more
than one (1) person or entity, each shall be jointly and severally
liable to Bank hereunder.
5.9 PERFORMANCE OF ACTS ON BUSINESS DAYS. In the event that the
final date for payment of any amount hereunto falls on a Saturday,
Sunday or state or federal holiday, such payment may be made on the next
succeeding Bank Day.
5.10 COMPUTATION OF INTEREST. The computation of interest
hereunder shall be based on a year of three hundred sixty (360) days and
a thirty (30) day month.
5.11 TIME OF ESSENCE. Time is of the essence of the performance
of each provision hereof.
5.12 PLACE OF PAYMENT. All payments due hereunder shall be sent
to Bank c/o Loan Accounting Department CLASS Unit 1503, 333 South
Broadway, 26th Floor, Los Angeles, California 90017, Attention MaSe
Lorenzo, or to such other place as Bank may designate in writing from
time to time.
5.13 COUNTERPARTS. This Agreement may be executed in
counterparts, which of which shall be deemed an original and all of
which, together, shall constitute but one and the same agreement.
5.14 EXCULPATION. Notwithstanding anything herein contained to
the contrary, the Bank agrees that (a) all liability of any person with
respect to this agreement shall be satisfied only out of any assets of
the Borrower and that no constituent partner of the Borrower shall have
any personal liability with respect to this Agreement, all such personal
liability being expressly waived by the Bank, and (2) in no event shall
a negative capital account or any other funding obligations of any
constituent partner of Borrower be deemed to an asset or the property of
the Borrower.
IN WITNESS WHEREOF, Borrower and Bank have has executed this
Reimbursement Agreement on the year and date first hereinabove set
forth.
BORROWER:
ARVIDA/JMB PARTNERS, L.P. II, a
Delaware limited partnership
By: Arvida/JMB Managers II, Inc., a
Delaware corporation, its
General Partner
By: s/STEPHEN A. LOVELETTE
Name:
Title:
BANK:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in its capacity as Managing Co-Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in all capacities hereunder other than
as Managing Co-Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association
By:
Name:
Title:
IN WITNESS WHEREOF, Borrower and Bank have has executed this
Reimbursement Agreement on the year and date first hereinabove set
forth.
BORROWER:
ARVIDA/JMB PARTNERS, L.P. II, a
Delaware limited partnership
By: Arvida/JMB Managers II, Inc., a
Delaware corporation, its
General Partner
By:
Name:
Title:
BANK:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in its capacity as Managing Co-Agent
By: s/CHARLES D. GRABER
Name: Charles D. Graber
Title: Vice President
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in all capacities hereunder other than
as Managing Co-Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association
By:
Name:
Title:
IN WITNESS WHEREOF, Borrower and Bank have has executed this
Reimbursement Agreement on the year and date first hereinabove set
forth.
BORROWER:
ARVIDA/JMB PARTNERS, L.P. II, a
Delaware limited partnership
By: Arvida/JMB Managers II, Inc., a
Delaware corporation, its
General Partner
By:
Name:
Title:
BANK:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in its capacity as Managing Co-Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in all capacities hereunder other than
as Managing Co-Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association
By: s/JEANNETTE JORDAN
Name: Jeannette Jordan
Title: Vice President
EXHIBIT "A"
LETTERS OF CREDIT
=================
Obligee: County of Orange, EMA/Regulation/Grading Section
Agreement #: LASB214312
Instrument type:Letter of Credit
Amount: $21,030.00
Reason: Grading performance
Obligee: County of Orange, EMA/Regulation/Grading Section
Agreement #: LASB214313
Instrument type:Letter of Credit
Amount: $101,520.00
Reason: Grading performance
Obligee: County of Orange, EMA/Regulation/Grading Section
Agreement #: LASB214314
Instrument type:Letter of Credit
Amount: $101,520.00
Reason: Grading performance
Obligee: County of Orange, EMA/Regulation/Grading Section
Agreement #: LASB214315
Instrument type:Letter of Credit
Amount: $271,800.00
Reason: Grading performance
Obligee: County of Orange, EMA/Regulation/Grading Section
Agreement #: LASB214316
Instrument type:Letter of Credit
Amount: $537,480.00
Reason: Grading performance
Obligee: City of San Clemente
Agreement #: LASB214677
Instrument type:Letter of Credit
Amount: $1,500,000.00
Reason: Grading Erosion control & Landscaping-311401
Avenida Pico
Obligee: Amwest Surety
Agreement #: 220668
Instrument type:Letter of Credit
Amount: $100,000
Exhibit "A"