CREDIT AGREEMENT
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THIS CREDIT AGREEMENT dated as of the 30th day of August, 2001, is between
ASTROTECH FLORIDA HOLDINGS, INC., a Florida corporation (the "Borrower") and
SOUTHTRUST BANK, an Alabama banking corporation (the "Bank"). The parties
hereto hereby agree as follows:
WHEREAS, the Borrower has applied for secured construction and permanent
financing of up to $20,000,000.00 in principal for the acquisition,
construction, equipping and installation of the Project (as hereinafter
defined); and
WHEREAS, the Bank has issued to the Borrower its Commitment Letter dated
August 17, 2001, which was accepted by Borrower on August 17, 2001 (the
"Commitment Letter"); and
WHEREAS, the Bank and the Borrower wish to set forth the terms and
conditions which govern all loans, credits or advances made by the Bank to the
Borrower with respect to the Project, in accordance with the Commitment letter;
NOW, THEREFORE, in consideration of the premises and of the mutual benefits
and advantages accruing to each by virtue hereof, the Borrower and the Bank
hereby enter into this credit agreement (the "Agreement" or the "Credit
Agreement") as follows, to wit:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have the same
meaning when used in the plural and vice versa):
"Acquisition and Construction Loan" means the Loan from the Bank to the
Borrower made pursuant to Section 2.02.
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"Acquisition and Construction Loan Maturity Date" means, if the Acquisition
and Construction Loan is not renewed and converted into the Term Loan, the
Completion Date provided, however, that the Acquisition and Construction Loan
shall not be deemed to have matured if said Loan is renewed and converted into
the Term Loan as provided in this Agreement.
"Acquisition and Construction Loan Note" means the promissory note of the
Borrower in substantially the form attached to this Agreement as Exhibit "A"
evidencing Borrower's obligation to repay the Acquisition and Construction Loan
to the Bank.
"Advance" or "Advances" means, collectively or singly as the context may
require,
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advances of Construction Funds made to Borrower by the Bank including, without
limitation, advances under the Acquisition and Construction Loan during the
Construction Period.
"Affiliate" means, as to any Person, each of the Persons that, directly or
indirectly, through one or more intermediaries, owns or controls, or is
controlled by or under common control with , such Person. For the purpose of
this definition, "control" means the possession, direct or indirect, of the
power to direct or cause the direction of management and policies, whether
through the ownership of voting securities, by contract or otherwise, provided
that in any event, any Person which owns directly or indirectly 20% or more of
the Securities having ordinary voting power for the election of directors or
other governing body of a corporation or 20% or more of the partnership or other
ownership interest of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
"Agreement" means this Credit Agreement, as amended, supplemented, or
modified from time to time.
"Applicable Margin" means with respect to the LIBOR Rate 2.25%.
"Applicable Rate" means the LIBOR Rate or the Base Rate.
"Applicable Retainage Percentage" means five percent (5%).
"Astrotech" means Astrotech Space Operations, Inc.
"Base Rate" means the lending rate as announced by the Bank from time to
time as its base rate which may change as often as daily, provided, however,
that at no time shall the rate of interest exceed the highest rate allowed by
law. In the event that Bank does not, for any reason, announce a Base Rate or
discontinues the use of the term "Base Rate" as a benchmark for interest rate on
its loans, the Base Rate shall be the rate quoted as the "prime rate" as
reported in the "Money Rates" section of the Wall Street Journal (or the
arithmetic average of the rates so quoted, if more than one rate is quoted) or,
in the event of discontinuance of such publication or such section thereof, the
Base Rate shall mean the monthly average prime rate as reported and published in
the Federal Reserve Bulletin published monthly by the Board of Governors of the
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Federal Reserve System under the table styled "Prime Rate Charged by Banks on
Short Term Business Loans". In the event of the discontinuance of both such
publications or such section or table thereof, the Base Rate shall mean the
prime rate as from time to time announced or published by Citibank, N.A. at its
principal office in New York, New York.
The terms "Base Rate" and "Prime Rate" are intended by the parties to be
benchmarks only and are not to be construed as indicating that such rates are
the best or lowest rates offered by the Bank to any of its customers regardless
of their creditworthiness.
"Borrower's Project Account" means a deposit account of the Borrower
maintained with the Bank or another bank owned by SouthTrust Corporation, into
which Advances shall be deposited by the Bank and from which Borrower shall make
payments to the Contractor and others
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due payment of Project Costs.
"Budget" means the schedule prepared by Borrower comprising a Project
budget and a draw Funding Schedule to be approved by the Bank prior to the first
Advance for payment of Construction Costs, reflecting the cost of each item of
work or material required to complete the Work in the Project and the
Improvements under the Construction Contract, together with all other related
costs and expenses, including interest charges and professional fees and
commissions, and further reflecting the estimated timing and amounts of monthly
requisitions for payment of Project Costs, together with any and all amendments
and supplements thereto approved in writing as required hereafter.
"Business Day" means any day other than a Saturday, Sunday, or other day on
which commercial banks in Birmingham, Alabama are authorized or required to
close under the laws of the State of Alabama, and if the applicable Business Day
is related to determination of the LIBOR Rate, a day on which commercial banks
are open for domestic and international business (including dealings in U.S.
Dollar deposits) in London, England. Any payment due under this Agreement on a
date that is not a Business Day shall be deemed to be due and payable on the
preceding Business Day.
"Capital Lease" means all leases which have been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Certificate of Occupancy" or "Certificates of Occupancy" means, singly or
collectively as the context may require, a certificate issued by the appropriate
governmental authority indicating that the respective portion of the
Improvements to which the certificate relates and which are a subject of the
Construction Contract have been completed and the respective portions of the
Project are ready for use and occupancy for their intended purposes.
"Change Orders" means modifications or amendments to the Plans and
Specifications that result in changes in the Improvements and corresponding
changes in the Budget.
"CIT Mortgage" is defined in Section 2.01(A).
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"CLIN 1 Payments" means CLIN 1 payments under the MDC Contract and the
LMCLS Contract, respectively.
"Closing" means, (i) with respect to the Acquisition and Construction Loan,
the date of execution and delivery to the Bank of the Acquisition and
Construction Loan Note, and (ii) with respect to the Term Loan, the date of
execution and delivery to the Bank of the Term Loan Note.
"Collateral" means (i) the Real Property Collateral described in Exhibit
"B" attached to this Agreement, together with all improvements now or hereafter
located thereon and all leases, rents, profits, and contracts derived from or
directly relating to the mortgaged properties, together with all property
described in Exhibit "C", and (ii) all personal property assets of the Borrower.
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"Collateral Agreements" means those of the Loan Documents which grant to
the Bank a lien upon real or personal property of the Borrower or others to
secure payment of the Loans and the Notes.
"Commitment" means the Bank's obligation to make the Loan, and Advances
thereunder, to the Borrower pursuant to Article II of this Agreement in the
amounts referred to therein.
"Completion Date" means the earlier of (i) the date of Substantial
Completion of construction, equipping and installation of the facilities
constituting the Project, or (ii) the date of issuance of sufficient
Certificates of Occupancy for the Project so that the Project is physically
capable of commencing operation, or (iii) December 31, 2001.
"Construction Contract" means, singly or collectively as the context may
require, the construction contract between the Borrower and the Contractor
relating to acquisition, construction and installation at the Project Site of
the Improvements constituting the Project.
"Construction Costs" means the costs of site development and the
construction, installation and completion of the Improvements including, without
limitation, architectural and engineering fees, as shown in the Budget.
"Construction Costs Retainage" or "Retainage" means an amount equal to the
Applicable Retainage Percentage of each Advance for Construction Costs due under
the Construction Contract which will be withheld from each Advance and will not
be disbursed except in accordance with Section 2.04(H) hereof.
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"Construction Funds" means the total funds identified in Section 2.01
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deposited into the Borrower's Project Account and available to complete the Work
including, without limitation, the Owner's Funds.
"Construction Period" means the period commencing with the date of this
Agreement and ending on the Completion Date.
"Contractor" means J.P. Donovan Construction, Inc., the general contractor
who is party to the Construction Contract.
"Conversion Date" means, provided that all conditions precedent to such
conversion contained in this Agreement have been satisfied, January 1, 2002.
"Debt" means (1) indebtedness or liability for borrowed money or for the
deferred purchase price of property or services (including trade obligations);
(2) obligations as lessee under Capital Leases; (3) current liabilities in
respect of unfunded vested benefits under any Plan; (4) obligations under
letters of credit issued for the account of any Person; (5) all obligations
arising under the Notes; (6) all guaranties, endorsements (other than for
collection or deposit in the ordinary course of business), and other contingent
obligations to purchase (other than purchases in the ordinary course of
business), to provide funds for payment (other than payments in the ordinary
course of business),
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to supply funds to invest in any Person, or otherwise to assure a creditor
against loss; and (7) obligations secured by any Lien on property owned by any
Person, whether or not the obligations have been assumed.
"Default" means any of the events specified in Section 8.01, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Default Rate" means the rate of interest per annum that shall apply to a
Loan upon the occurrence and during the continuance of an Event of Default which
shall be 4% above the Base Rate or the highest rate permitted by law, whichever
is lower.
"Eurocurrency Reserve Percentage" means, with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the percentage in effect
two Business Days prior to the first day of such Interest Period, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor), for
determining reserve requirements applicable to any "Eurocurrency liabilities"
pursuant to Regulation D or any other applicable regulation of the Board of
Governors which prescribes reserve requirements applicable to "Eurocurrency
liabilities" as presently defined in Regulation D.
"Event of Default" means any of the events specified in Section 8.01,
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provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Fixed Charge Coverage Ratio" means a fraction in which the numerator is
net income after taxes and dividends, plus depreciation, amortization, interest
expense and lease expense and the denominator is interest expense, lease expense
and current maturities of long term debt.
"Florida Construction Lien Laws" means Chapter 713, Florida Statutes, as
from time to time amended.
"Force Majeure" means fire, flood, hurricane, tornado, strike, lockout,
labor troubles, failure of power, riot, insurrection, war or any other similar
cause beyond the control of Borrower.
"Funding Schedule" means that portion of the Budget indicating the
approximate times that disbursements for payments of the respective budgeted
elements of the Project Costs are expected to be made and the approximate
amounts of such expenditures.
"GAAP" means generally accepted accounting principles in the United States
consistently applied.
"Guarantor" or "Guarantors" means, singly or collectively as the context
may require, each of Astrotech and SPACEHAB.
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"Hedge Agreement" means the ISDA Master Agreement, Confirmation and
Schedules between Borrower and Bank or any Bank Affiliate to be executed at
closing or any other agreement between Borrower and Bank or any Bank Affiliate
hereafter entered into, which provides for an interest rate, currency, equity,
credit or commodity swap, cap, floor or collar, spot or foreign exchange
transaction, cross-currency rate swap, currency option, any combination thereof,
or option with respect to, any of the foregoing or any similar transactions, for
the purpose of hedging Borrower's exposures to fluctuations in interest rates,
exchange rates, currency, stock, portfolio or loan valuations or commodity
prices (including any such or similar agreement or transaction entered into by
Bank or any Bank Affiliate thereof in connection with any other agreement or
transaction between Borrower and Bank or any Bank Affiliate thereof).
"Improvements" means site development, construction, acquisition and
installation on the Project Site of a payload processing facility and supporting
buildings and infrastructure required to support the increased projected launch
rate and larger sized payloads associated with the Evolved Expendable Launch
Vehicles in support of and as described in the MDC Contract and the LMCLS
Contract.
"Indebtedness" means all of Borrower's liabilities, obligations and
indebtedness to Bank of any and every kind and nature (including, without
limitation, principal, interest, charges, expenses, attorneys' fees and other
sums chargeable to Borrower by Bank and future advances made to or for the
benefit of Borrower), arising under this Agreement, or under any of the Other
Agreements, whether heretofore, now or hereafter owing, arising, due or payable
from Borrower to Bank, including obligations of performance.
"Inspecting Consultant" means an independent firm of professional engineers
or architects engaged by the Bank, at Borrower's' expense, to provide
engineering consulting and inspection services to the Bank relating to the
design, acquisition, construction and installation of the Improvements
constituting the Project.
"Interbank Rate" means the rate per annum at which Dollar deposits in
immediately available funds are offered to the Bank two Business Days prior to
the beginning of an Interest Period by major banks in the London interbank
eurodollar market as at or about 11:00 a.m. London time, for delivery on the
first day of such Interest Period, for the number of days comprised therein and
in an amount comparable to the amount of the Loan to which such Interest Period
relates.
"Interbank Rate (Reserve Adjusted)" means, with respect to any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1% determined pursuant to the following formula:
Interbank Rate = Interbank Rate
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(Reserve Adjusted) 1 - Eurocurrency Reserve Percentage
"Interest Payment Date" means the fifteenth (15/th/) day of each October,
January, April and July of each year commencing October 15, 2001, and the Term
Loan Maturity Date.
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"Interest Period" means, (i) when the Applicable Rate is the Base Rate, one
(1) day, and (ii) when the Applicable Rate is the LIBOR Rate, the period
beginning on (and including) the day on which the Applicable Rate becomes the
LIBOR Rate and ending on (but excluding) the 15/th/ day of each October,
January, April and July of each year beginning October 15, 2001, provided, that
(a) if any Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding
Business Day; and
(b) no Interest Period for the Term Loan may end later than the Term
Loan Maturity Date, provided that any Interest Period of less than thirty
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(30) days by reason of this clause (b) shall not accrue interest at the
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LIBOR Rate during such Interest Period but rather shall accrue interest at
the Base Rate.
"LIBOR Loan" means with respect to the Acquisition and Construction Loan,
the aggregate outstanding principal amount of the Acquisition and Construction
Loan and, with respect to the Term Loan, the outstanding principal amount of the
Term Loan.
"LIBOR Rate" means the Interbank Rate (Reserve Adjusted) plus the
Applicable Margin.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge, or encumbrance 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 to evidence any of the
foregoing).
"LMCLS Contract" means Astrotech's contract with Lockheed Martin Commercial
Launch Services, Inc. (subcontract no. 48801, as amended).
"Loan" or "Loans" means, singly or collectively as the context may require,
the Acquisition and Construction Loan and each Advance thereunder and the Term
Loan.
"Loan Documents" means this Agreement, the Notes, the Mortgages, and all
other documents and financing statements executed by the parties in connection
with the transactions contemplated thereby including, without limitation, those
documents listed in Exhibit "D" attached to this Agreement.
"Loan Requisition" means the document prepared and delivered as required by
Section 2.04 hereof.
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"Material Change Order" means a Change Order or series of Change Orders
which, alone or in the aggregate, if approved and implemented, will result in a
material alteration of the nature or scope of the Project, will increase or
decrease the budgeted Project Cost by a magnitude of $50,000 or greater, or will
decrease the value of the Collateral.
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"Maximum Loan Amount" means (i) with respect to the Acquisition and
Construction Loan, the lesser of (a) actual Project Cost of the portion of the
Project to be funded by the Loan, or (b) $20,000,000.00; and (ii) with respect
to the Term Loan, the lesser of (a) the outstanding principal balance of the
Acquisition and Construction Loan on the Conversion Date, or (b) $20,000,000.00.
The Maximum Amount may be reduced by 60% or be restored to the original amount
as provided in Section 2.02(A) and Section 3.01(7)(f).
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"MDC Contract" means Astrotech's contract with McDonnell Douglas
Corporation (subcontract no. 99797075 as amended).
"Mortgage" or "Mortgages" means, singly or collectively as the context may
require, (i) the Mortgage, Security Agreement and Assignment of Rents given by
Astrotech to the Bank, and (ii) the Mortgage Security Agreement and Assignment
of Rents given by Borrower to the Bank, in each case encumbering the Real
Property Collateral and the Improvements and pledging same to secure the Notes.
"Note" or "Notes" means, collectively or singly as the context may require,
the Acquisition and Construction Loan Note and/or the Term Loan Note.
"Other Agreements" means all agreements, instruments and documents,
including, without limitation, the Note, the Hedge Agreement and any other
notes, guarantees, mortgages, deeds of trust, chattel mortgages, pledges, powers
of attorney, consents, assignments, contracts, notices, security agreements,
leases, financing statements, borrowing base certificates, subordination
agreements, trust account agreements and all other written matter whether
heretofore, now or hereafter executed by or on behalf of Borrower with respect
to, or in connection with, this Agreement, together with any and all amendments,
modifications, extensions, substitutions and renewals thereof.
"Owner's Funds" means funds generated internally by Borrower or an
Affiliate.
"Permitted Liens" means the Liens permitted by Section 6.01.
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"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority, or other entity of whatever nature.
"Plans and Specifications" means the plans and specifications for the
Project, copies of which have been furnished to Bank and approved by Bank, and
initialed by Borrower and Contractor for identification with the Construction
Contract, together with all amendments thereto through change orders made in
conformance with the requirements of this Agreement.
"Project" means the construction, acquisition and installation thereon of
the Improvements at the Project Site.
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"Project Costs" shall include Construction Costs and Soft Costs.
"Project Site" means the Real Property Collateral where the Work is to be
performed pursuant to the Construction Contract pursuant to which the Project
and the Improvements are to be constructed and installed.
"Real Property Collateral" means the real property described in the
attached Exhibit "B" together with all improvements, appurtenances and fixtures
now or hereafter located thereon and all Improvements acquired, constructed and
installed thereon.
"Soft Costs" means items set forth in the Budget which relate to the
Project but which do not constitute payments for construction, acquisition and
installation of Improvements under the Construction Contract. Soft Costs
include, but are not limited to, items in the Budget for professional fees
other than architectural and engineering costs.
"SPACEHAB" means SPACEHAB, INCORPORATED.
"Subsidiary" means, as to any Person, a corporation of which shares of
stock having ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by such Person.
"Substantial Completion" means the substantial completion of the
construction, acquisition and installation of the Project with only punch list
items remaining to be completed.
"Tangible Net Worth" means the total of all assets appearing on a balance
sheet prepared in accordance with generally accepted accounting principles on a
combined basis for Astrotech and the Borrower after deducting therefrom (without
duplication or deductions): (i) any write-up in the book carrying value of any
asset resulting from a re-evaluation thereof subsequent to the date of the
balance sheet referred to above; (ii) all reserves, including, but not limited
to, reserves for liabilities, fixed or contingent, deferred income taxes,
obsolescence, depletion, insurance and inventory valuation, which are not
deducted from assets; (iii) the amount, if any, at which shares of stock of
Astrotech and the Borrower appear on the asset side of such balance sheet; (iv)
all indebtedness of Astrotech and the Borrower; (v) all goodwill, research and
development, and other intangible items of any kind appearing on the asset side
of such balance sheet; and (vi) any other items required by GAAP to be deducted
in computing tangible net worth less debt specifically subordinated to the Bank.
"Term Loan" means the term loan resulting from the renewal, extension and
conversion of the Acquisition and Construction Loan as provided in Section 2.07
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of this Agreement.
"Term Loan Note" means the promissory note of the Borrower in substantially
the form attached to this Agreement as Exhibit "E" evidencing the renewal,
extension and conversion of the
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Acquisition and Construction Loan to the Term Loan and Borrower's obligation to
repay the Term Loan to the Bank.
"Term Loan Maturity Date" means January 15, 2011.
"Term Period" means the period commencing with the Conversion Date and
ending on the Term Loan Maturity Date.
"Title Insurer" means Fidelity National Title Insurance Company of America,
through its agent, Morrison & Mills, P.A., and all reinsurers which may have
been approved in writing by Bank.
"Title Policy" means the policy of title insurance (and the commitment
therefor), together with all endorsements thereto, and all policies of
reinsurance issued to Bank by the Title Insurer as required by Section 3.01
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hereof.
"Work" means the labor and materials which are to be furnished under the
Construction Contract and/or to complete the Improvements, respectively,
together with all services, goods and materials (including, without limitation,
preparation of Plans and Specifications) included for payment within the Budget
and necessary to make the Improvements fully functional parts of the Project in
accordance with the Budget.
SECTION 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles. When used herein, the term "financial statements" shall include
the Note and schedules thereto.
SECTION 1.03. Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or". The words "hereof", "herein", "hereby',
"hereunder", and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, clause, schedule and exhibit references are to this Agreement unless
otherwise specified. Any reference in this Agreement or in the Loan Documents
to this Agreement or any of the Loan Documents shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions and supplements thereto and thereof, as applicable. All of the
schedules and exhibits attached to this Agreement shall be deemed incorporated
herein by reference. Each references to "Borrower" or "Borrower" shall be
deemed to relate to each Borrower individually and to all Borrower collectively
it being the intent of the parties that the obligations, representations,
warranties and pledges of each Borrower hereunder shall be joint and several.
ARTICLE II
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THE LOANS
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SECTION 2.01. The Acquisition and Construction Loan.
(A) Source of Funds.
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(1) Borrower has represented to Bank that the aggregate of Project Costs
necessary to complete the Project plus the sum necessary to pay off an existing
mortgage to CIT Group/Equipment Financing, Inc. (the "CIT Mortgage") on the Real
Property Collateral shall not exceed $3,250,000.00 for a total Project Budget of
$33,000,000.00. The funds estimated by Borrower to be necessary to pay off the
CIT Mortgage and to pay all Project Costs are to be generated by Borrower from
the following sources subject to satisfaction of the conditions for funding of
Advances for payment of Construction Costs set forth in this Agreement:
(a) Owner Funds $13,000,000.00
(b) Acquisition and Construction Loan $20,000,000.00
Total $33,000,000.00
(B) Acquisition and Construction Loan Proceeds. The Bank shall, subject
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to the terms, provisions and conditions of this Agreement and upon satisfaction
of the conditions for making Advances set forth in Article III of this
Agreement, deposit the proceeds of Advances under the Acquisition and
Construction Loan into the Borrower's Project Account at the times and in the
amounts necessary to make the disbursements of Acquisition and Construction Loan
proceeds shown in the Funding Schedule (which may be modified from time to time
as provided in this Agreement). Advances shall be made during the Construction
Period as provided in this Agreement.
(C) Use of Funds. All Advances of the Construction Funds shall be made
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solely for payoff of the CIT Mortgage and for payment of Project Costs for the
respective phases of the Project in accordance with the Budget and shall be made
in the amounts and at the times prescribed in the Funding Schedule, in the
manner prescribed, and subject to completion, performance and satisfaction of
the conditions set forth in Sections 2.02 through 2.06 and in Article III of
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this Agreement. Borrower shall submit to the Bank, not more frequently than
once per month with submittal of a Loan Requisition, any requested revisions to
the Budget and Funding Schedule showing, as of the time of submittal,
anticipated adjusted funding requirements for the current month, the next month
and thereafter. Advances shall thereafter be made in accordance with the
revised Budget and Funding Schedule provided that such revised Budget and
Funding Schedule is approved by the Bank, which approval shall not be
unreasonably denied.
SECTION 2.02. The Acquisition and Construction Loan Terms.
(A) Principal Amount. The Bank agrees, subject to the terms and conditions
set forth in this Agreement, to make the Acquisition and Construction Loan to
Borrower in the amount of up to the Maximum Loan Amount. The Maximum Amount is
subject to reduction by 60% as provided in Section 3.01(7)(f) in the event that
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the MDC Contract is not signed by Closing of the Acquisition and Construction
Loan provided, that such reduction shall be eliminated and the original Maximum
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Amount restored in the event the MDC Contract is signed within 45 days of the
Closing as provided in Section 3.01(7)(f).
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(B) Interest. (i) The principal amount of each Advance outstanding from
time to time hereunder shall bear interest at a per annum rate equal to a LIBOR
Rate subject to provisions of this Agreement providing for a different
Applicable Rate under limited circumstances. Interest shall be paid to the Bank
on the aggregate amount of Advances outstanding from time to time and shall be
payable on each Interest Payment Date. All payments received by the Bank shall
be applied first to payment of costs, fees and expenses to which the Bank is
entitled under the Loan Documents, then to payment of accrued interest and then
to reduction of principal.
After the occurrence and during the continuance of an Event of Default, the
Applicable Rate shall be the Default Rate.
(ii) In the event that the Bank shall incur any loss or expense (including
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by the Bank to make, continue or maintain the
principal amount of a LIBOR Loan) as a result of any repayment or prepayment of
the principal amount of any LIBOR Loan on a date other than the scheduled last
day of the Interest Period, then upon written notice from the Bank to the
Borrower the Borrower shall, within five (5) days of receipt thereof, pay
directly to the Bank such amount as will (in the reasonable determination of the
Bank) reimburse the Bank for such loss or expense. Such written notice shall,
in the absence of manifest error, create a rebuttable presumption of the amount
of such losses or expenses.
(iii) Interest shall accrue on the outstanding principal balance of the
Acquisition and Construction Loan until the Acquisition and Construction Loan
Maturity Date at a LIBOR Rate (subject to provisions of this Agreement providing
for a different Applicable Rate under limited circumstances) provided, however,
that after the Acquisition and Construction Loan Maturity Date, interest shall
accrue at the Default Rate if the Acquisition and Construction Loan is not
converted to the Term Loan.
(iv) Interest shall, in every case, be calculated on an assumed year of
360 days for the actual number of days elapsed.
(C) Right of Prepayment of the Acquisition and Construction Loan.
Subject to the provisions of this Article II including, without limitation
Section 2.02(B)(ii), Borrower shall have the right to prepay the Acquisition
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and Construction Loan, in whole or in part without penalty provided, however,
that Borrower shall pay accrued interest to the date of such prepayment.
Borrower may be liable to pay a penalty fee under a Hedge Agreement depending
upon the interest rate environment at the time of prepayment and any costs
incurred by the Bank by reason of prepayment occurring prior to the end of an
Interest Period. Prepayments shall be made to Bank in immediately available
funds and shall be applied to the last of the installment(s) to mature, and any
such prepayment shall not affect or vary the obligation of Borrower to pay any
installment when due. The Borrower shall not have the right to re-borrow
amounts that have been prepaid it being
12
expressly acknowledged by Borrower that there is no revolving feature to the
Acquisition and Construction Loan.
(D) Use of Proceeds of the Acquisition and Construction Loan. The proceeds
of the Acquisition and Construction Loan shall be used by Borrower only to pay
off the CIT Mortgage and to pay Project Costs in accordance with the Budget.
(E) Evidence of the Acquisition and Construction Loan. Borrower shall, as
evidence of their obligation to repay the Acquisition and Construction Loan to
the Bank, execute the Acquisition and Construction Loan Note in the form
attached hereto as Exhibit "A" and deliver same to the Bank at Closing.
SECTION 2.03. Fees. Borrower has paid to the Bank a commitment fee of
$200,000.00 in installments of (i) $50,000.00 paid upon acceptance of the Bank's
commitment letter, and (ii) $150,000.00 paid upon Closing, which aggregate sum
is fully earned and is non-refundable regardless of the amount of Loan proceeds
advanced.
SECTION 2.04. Advances of Construction Funds. An initial Advance shall
be made at Closing of the Acquisition and Construction Loan to pay off the CIT
Mortgage. Thereafter, Advances of Construction Funds shall be for the following
items and on the following terms and conditions:
A. Advances for Completed Work. Subject to the terms, provisions and
conditions of this Agreement at and after the Closing of the Acquisition and
Construction Loan, Borrower may request and Bank shall honor, a request for an
Advance of Construction Funds so long as no Event of Default exists, provided
such request: (i) is represented by a Loan Requisition which may not be
presented to Bank more frequently than once in each calendar month, executed by
Borrower, which shall be supported by document G702 published by the American
Institute of Architects and shall be supported by invoices, receipts or other
evidence satisfactory to Bank that Work has been completed through the period
covered by the requisition; (ii) is consistent with the Budget; (iii) is based
upon work actually and satisfactorily completed and materials actually furnished
and delivered to the Project Site (or stored off the Project Site but still
subject to a lien in favor of Bank) or is based upon percentage of completion as
provided in the Construction Contract; (iv) if an Inspecting Consultant has been
required by the Bank in its sole discretion, such request has been approved in
writing by an independent inspection of the work and materials covered by each
such Loan Requisition by the Bank's Inspecting Consultant who has certified to
Bank that (1) all work completed and materials furnished prior to each such
inspection are in compliance with the Budget and the Plans and Specifications,
(2) all work set forth in the Loan Requisition has been completed in a good
workmanlike manner and that the amount stated therein is payable, and (3) that
sufficient funds remain available from the Construction Funds to complete the
Work in accordance with the Plans and Specifications and Budget (the
"Consultant's Certificate"); and (v) is supported by, at Bank's request, a
------------------------
current title search and date-down certificate by the Title Insurer showing the
absence of Liens for work performed and materials furnished prior to the date of
the requested Advance.
B. Advances for Interest Payments. Bank shall not make Advances of
interest
13
payments on the Acquisition and Construction Loan from proceeds of the
Acquisition and Construction Loan (provided, however, that this shall not
prevent the Bank from exercising its rights of set off in an Event of Default).
All interest payments shall be made by Borrower to the Bank.
C. Amount of Advance. Each Advance or disbursement for Work shall be
equal to the costs of that portion of the Work performed and labor and materials
furnished as shown by the relevant Loan Requisition and supporting documentation
and not shown in any prior Loan Requisition, less the Construction Costs
Retainage and when added to the cost of the Work remaining with respect to the
Project shall not cause the Budget to be exceeded.
D. Reduction of Advance Amount for Retainage. The Bank may cease making
disbursements of the Construction Funds including, without limitation,
Acquisition and Construction Loan proceeds, whenever it becomes necessary to do
so in order that Construction Costs Retainage at all times be equal to the
Applicable Retainage Percentage of Construction Costs.
E. Time for Submittal of Requisition. In addition to the other
requirements set forth in this Agreement, in order to obtain an Advance of the
Construction Funds for Construction Costs, the Borrower shall submit a Loan
Requisition and all supporting documentation to Bank at least seven (7) Business
Days prior to the date that Borrower desires such Advance to be funded (the
"Funding Date"), and specify therein (x) the Funding Date and (y) the requested
------------
amount of the Advance (in no event less than $100,000 exclusive of interest,
except for the last Advance which may equal the amount remaining undisbursed
under the Acquisition and Construction Loan). Upon satisfaction of the terms
and conditions of this Agreement, Bank will make such Advance to the Borrower by
transferring the amount thereof to the Borrower's Project Account. All Loan
Requisitions shall be submitted to the Bank on a Business Day and all Advances
shall be made on a Business Day. The Bank shall, if all of the conditions
precedent set forth in Article III of this Agreement have been met, make the
Advances requested by Borrower pursuant to this Agreement no later than seven
(7) Business Days after receipt of a written request for such Advance.
F. Advances for Soft Costs. Bank shall not make Advances for Soft Costs
identified in the Budget during the Construction Period provided, however, that
on the Completion Date, prior to conversion to the Term Loan, the Bank shall
Advance proceeds of the Acquisition and Construction Loan to Borrower for
payment of Soft Costs if the Maximum Amount has not then been exceeded. All
Soft Costs shall otherwise be paid by Borrower.
G. Method of Making Advances. Unless an Event of Default has occurred
and is continuing, Bank may make all Advances, including the Construction Costs
Retainage, directly to Borrower by deposit into the Borrower's Project Account
or, at the Bank's option, directly to the party entitled to payment as shown in
the relevant Loan Requisitions. If an Event of Default has occurred and is
continuing, Bank shall have the right (but not the obligation) to make all
Advances, should Bank elect to continue making Advances, to the parties shown in
relevant Loan Requisitions to be entitled thereto or as determined by Bank under
the enforcement of the Collateral Agreements and deliver the Construction Costs
Retainage directly to the Contractor or deliver same to the Title Insurer for
disbursement.
14
H. Retainage. Bank shall pay the Construction Costs Retainage only upon
Substantial Completion of the entire Project and satisfaction of the following
additional conditions:
(1). Evidence satisfactory to Bank that no Liens have been filed against
the Project during the applicable Lien period provided in Chapter 713,
Florida Statutes (the "Florida Mechanics Lien Law") which remain
unsatisfied and receipt by Bank of the Contractor's written waiver of
Lien rights and Contractor's affidavit to Bank that all bills for
labor and materials have been paid; provided, however, that no Lien
and no notice of any Lien shall have been recorded that remains in
force against the Project and no legal process under any law, shall
have been issued or shall be outstanding with regard to the Project.
Bank shall require and may rely upon the certification of the title
insurer by endorsement on the title policy of the fact that no Liens
and no notices of Liens have been recorded and remain in effect, which
endorsement shall be obtained at Borrower's expense;
(2). Receipt by Bank of evidence that all utilities are connected and are
servicing the Improvements with respect to which the release of
Construction Cost Retainage is sought;
(3). Receipt by Bank of evidence satisfactory to it that all Work under the
Construction Contract requiring inspection or approval, or both, by
any public agencies or authorities having jurisdiction over the
respective Work has been duly and finally inspected and approved by
such agencies and authorities;
(4). Receipt by Bank of such further endorsements to the title policy as
Bank may reasonably require;
(5). If the Bank has required the services of an Inspecting Consultant,
receipt by Bank of the written certifications of Bank's Inspecting
Consultant and the Contractor that all work has been completed in
accordance with the appropriate Plans and Specifications and with all
Change Orders approved as required by Section 2.04(I) hereof;
---------------
(6). Receipt by Bank of a copy of the Certificate of Occupancy applicable
to the Improvements completed;
(7). In the event a Lien, or Liens, have been filed against the Project,
Bank shall release to Borrower, provided all other conditions in this
Section 2.04 have been satisfied, the respective Construction Costs
------------
Retainage less 150% of the amount of all Liens filed unless the
Contractor has such Liens cancelled through the production of a bond
securing the payment of same. Should the Contractor obtain the
release of any Lien then the amount withheld shall be released to
Borrower upon providing Bank proof of such.
I. Change Orders. Only those Material Change Orders which have been
properly
15
requested by Borrower and fully approved in advance by Borrower, Contractor,
municipal and County authorities as applicable, Bank and, if required by the
Bank, Bank's Inspecting Consultant, will be included in the monthly disbursement
of funds for payment of Work completed and in place at the time of each
inspection. No Material Change Order may be submitted for approval to Bank
unless previously approved in writing by the Borrower and the Contractor. Five
(5) Business Days shall be provided for the change order review and approval
process by the Bank and, if required by the Bank, the Bank's Inspecting
Consultant prior to the inclusion of the amount of any Material Change Order in
the Budget and in the monthly disbursement request of funds for work completed.
Borrower shall submit to Bank for approval of each Material Change Order:
1. Complete architectural drawings and specifications describing the
change(s);
2. Appropriate change order authorizations from Borrower and Contractor;
3. A short written description of the alteration covered in the change
order in non-technical terms and a specific identification of whether
such change order is obligatory or discretionary in nature; and,
4. As to any change order which increases the Construction Costs, a
statement of Borrower which specifically outlines the Borrower's
source of funds for paying for the additional costs. No work required
by a change order shall be commenced until the approvals required
above have been obtained in writing and, if such change order causes
the Budget to be exceeded, then funds necessary to pay for the excess
over Budget caused by the change order have been deposited by Borrower
in the Borrower's Project Account.
Change Orders that are not, either alone or in cumulative effect, Material
Change Orders, may be made by Borrower and the Contractor without prior Bank
approval provided, however, that such Change Orders shall not be included in the
Construction Contract nor shall the Bank be required to make any Advances with
regard to such Change Order unless the Bank is provided with the following at
least ten (10) Business Days prior to receipt of a Loan Requisition relating to
such Change Order:
1. Appropriate Change Order authorizations from Borrower and Contractor;
2. A short written description of the alteration covered in the Change
Order in non-technical terms and a specific identification of whether
such Change Order is obligatory or discretionary in nature; and,
3 As to any change order which increases the Construction Costs, a
statement of Borrower which specifically outlines the amount of the
increase and Borrower's source of funds for paying for the additional
costs.
SECTION 2.05. Provisions Relating to Construction of the Project. The
Bank and Borrower acknowledge that some of the obligations set forth in this
Section 2.05 are to be
- ------------
16
performed by Astrotech under the Construction Contract. The Bank and Borrower
agree that regardless of who is the proper party to perform the obligations of
this Section 2.05 a failure to perform hereunder shall be a Default under this
------------
Agreement.
(A) Borrower agrees to construct and install the Improvements or to cause
them to be constructed and installed in accordance with the Plans and
Specifications which shall be submitted to and approved in writing by the Bank
prior to the first Advance for payment of Construction Costs, and such addenda
thereto and modifications thereof as shall be approved in writing by the Bank,
the Borrower and the Contractor, and all governmental authorities having
jurisdiction of the Project whose consent is required by law. Compliance with
the provisions of this paragraph or with any other provisions of this Agreement
relating to the construction and/or development and completion of the
Improvements shall be established, at the request of the Bank in its sole
discretion, by certificates of the Inspecting Consultant. Borrower agrees that
no material modifications or amendments to the Plans and Specifications that
result in changes in the Improvements of a magnitude of $25,000 or more shall be
made without first obtaining the approval in writing of the Bank, which approval
by the Bank shall be conditioned upon prior approval by all governmental
authorities having jurisdiction over the Project, but shall not thereafter be
unreasonably withheld, delayed or conditioned. Borrower agrees to deliver to
Bank, prior to the first advance being made under this Agreement, a letter
executed on behalf of the governmental authority having jurisdiction in respect
of zoning laws and regulations affecting the Project or, if such governmental
authority shall refuse to execute such letter, by a licensed architect or
engineer approved by Bank certifying that, upon completion of the Improvements
in accordance with the Plans and Specifications, the Improvements will comply
with all applicable zoning laws and regulations of such governmental authority.
The Improvements shall be developed, constructed and equipped in full compliance
with (i) the requirements of all governmental authorities having jurisdiction of
the Project, (ii) the requirements of the appropriate Board of Fire Underwriters
or other similar body acting in and for the locality in which the Project is
situated, and (iii) any agreements between Borrower and the Contractor, if any,
in respect of construction of the Improvements. Borrower agrees that no
material modification of or amendments to any such agreements with the
Contractor shall be made without first obtaining the approval in writing of the
Bank, which approval shall not be unreasonably withheld, delayed or conditioned.
(B) Borrower shall establish at Closing to the reasonable satisfaction of
the Bank that the Lien of the Mortgage is superior to any mechanics' lien rights
or Borrower shall provide adequate insurance to protect the Bank from any
mechanics' liens which may be title insurance that insures over the mechanics'
lien exception to coverage.
(C) Borrower shall, after Closing, remove by payment or bond of a surety
company acceptable to the Bank, any mechanic's or laborer's claim or lien filed
against the above described Property or Improvements within thirty (30) days
after receipt of notice of filing thereof, but in any event, prior to the next
Advance of Loan proceeds.
(D) Borrower represents and warrants that:
(1) all permits necessary for the construction and installation of
the Improvements have been obtained or will have been obtained from said
authorities before making of the
17
first Advance under this Agreement for Construction Costs.
(2) the Project is not now damaged or injured as a result of any
fire, explosion, accident, flood or other casualty.
(3) no condemnation or eminent domain proceeding has been commenced
or to the knowledge of Borrower threatened against the Project.
(4) Borrower has no knowledge of any violations or notices of
violations of federal law or municipal ordinances or orders or requirements of
the State of Florida, or any other governmental authority having jurisdiction
affecting the Project.
(E) Borrower shall furnish to the Bank, as and when required by Bank not
more frequently than quarterly, evidence and proof acceptable in Bank's
reasonable judgment and discretion, that the Borrower and Contractor have the
financial solvency and ability to and will obtain all necessary materials, labor
and other services, as and when required for completion of development and for
the completion and construction of the Improvements in accordance with the Plans
and Specifications and the requirements of all governmental agencies having
jurisdiction over the Project.
(F) The Bank and/or its agents shall at any reasonable time during the
period of this Agreement have the right to inspect all books, contracts,
subcontracts and records of the Borrower relating to the Project after
reasonable notice to the Borrower.
(G) Borrower shall submit to the Bank, as often as reasonably demanded by
Bank, and within seven (7) days after demand, a written summary of all on-site
and off-site Improvements remaining to be completed, together with the itemized
costs thereof, executed and verified by Borrower and Contractor.
(H) In the event the Borrower fails to construct and complete the
Improvements substantially in accordance with the Plans and Specifications on or
before the Completion Date (subject to Force Majeure), and in the event of
occurrence of an Event of Default by the Borrower, the Borrower hereby assigns
to the Bank the right to possess and use the Plans and Specifications for the
purpose of completing the Improvements, and shall furnish at the execution of
this Agreement the consent of the Architect, Engineer and/or Contractor to such
Assignment, as appropriate.
(I) The Borrower shall furnish to the Bank not later than forty-five (45)
days after Substantial Completion of the Improvements, evidence of the
following: (i) the original permanent Certificates of Occupancy and all other
necessary consents and approvals of the governmental boards, bureaus and
departments having jurisdiction over the Project; (ii) all necessary
certificates and approvals of the appropriate Board of Fire Underwriters or
other similar body acting in and for the locality in which the Project is
situated; and (iii) all required licenses and agreements in respect of any vault
space or easements extending beyond the boundary line of the Property.
(J) The Borrower shall furnish to Bank prior to the first Advance for
other than Acquisition
18
Costs a "foundation" or "tie in" survey of above ground Improvements showing no
encroachments, overlaps or easement that would interfere with construction of
the Improvements.
(K) After Closing of the Acquisition and Construction Loan, but prior to
the first Advance for payment of Construction Costs Borrower shall furnish to
Bank a certificate of the Contractor confirming that the Improvements can be
acquired, installed and constructed within the Budget and that the Project Costs
will not exceed the Budget which certificate shall be accompanied by a pre-
construction and pre-development disbursement schedule, showing actual costs of
proposed construction and development to be consistent with and not in excess of
the Budget, supported by copies of all signed contracts and subcontracts
relating thereto.
(L) Construction Funds excluding the initial Advance for payoff of the CIT
Mortgage but otherwise including, without limitation, Acquisition and
Construction Loan proceeds, shall only be disbursed once monthly by Bank to
Borrower and/or to the Contractor, subcontractors and materialmen, at the option
of Bank, in payment of the direct and indirect development and construction
costs shown on the Budget approved by Bank as same may be amended and
supplemented from time to time as provided in this Agreement. Acquisition and
Construction Loan proceeds shall be used after payoff of the CIT Mortgage solely
to pay costs of the Improvements.
(M) It is hereby recognized that events subsequent to the execution of
this Agreement, and beyond the control and not at the discretion of the Bank,
may prevent the disbursement of the total balance of the Construction Funds or
the Acquisition and Construction Loan proceeds prior to the completion of the
Project. Such events may include, but are not limited to, (a) construction not
in compliance with the terms and conditions of this Agreement and the Plans and
Specifications approved by Bank; (b) dispute between the Borrower and Contractor
as to the disbursement of remaining funds; (c) non-payment of sub-contractors,
sub-sub-contractors, materialmen, laborers or other lienors covered by the
Florida Construction Lien Laws; (d) the occurrence of an Event of Default; and
(e) any other events which, by the terms of this Agreement, preclude
disbursement of the remaining Construction Funds or Acquisition and Construction
Loan proceeds.
If any such event is not resolved or cured to Bank's reasonable
satisfaction within thirty (30) days from the Bank's written demand for
resolution or cure to Borrower, then Bank may, at its discretion, declare all
Acquisition and Construction Loan proceeds advanced to date together with
accrued interest, immediately due and payable and may apply all Retainage to
payment of the Acquisition and Construction Loan Note or towards cure of the
unresolved event, at the sole discretion of the Bank.
(N) If no such event has occurred and Borrower is otherwise in full
compliance with this Agreement then Bank shall fully disburse the remaining
Construction Funds and Acquisition and Construction Loan proceeds including,
without limitation, the Retainage, to Borrower upon receipt of Borrower's final
Loan Requisition submitted in accordance with Section 2.04 , which shall be
------------
documented in accordance with the same requirements for monthly Loan
Requisitions.
(O) No payment or Advance need be made by Bank unless and until all of the
conditions of this Agreement to be performed prior to the making of the first
Advance are satisfied
19
(P) Bank shall, if it so desires, hire the Inspecting Consultant and Bank
shall pay for his services and be entitled to reimbursement for same by Borrower
within thirty (30) days after demand. The Inspecting Consultant shall certify to
the Bank as to the progress of construction and Contractor's compliance with the
Plans and Specifications. If an Inspecting Consultant is engaged, then the
Inspecting Consultant's approval shall be required by the Bank before any Loan
Requisitions for Advances are approved or paid by the Bank. Each certificate of
the Inspecting Consultant shall cover an inspection which was made not more than
seven (7) days prior to the date on which such Advance is to be made.
(Q) If at any time during the Construction Period it appears that the net
proceeds remaining undisbursed of the Construction Funds will be insufficient to
complete all of the Improvements in accordance with the Plans and
Specifications, and to pay for all labor, material and costs, Borrower shall,
upon Bank's demand, deposit in the Borrower's Project Account, additional
monies which shall, when added to the undisbursed proceeds of the Construction
Funds, be sufficient to complete and pay for the costs and expenses of the
Improvements in connection therewith. The amount so deposited shall be
disbursed to pay for the Improvements before any additional Construction Funds
are to be paid out.
(R) All Advances are to be made at the principal office of the Bank in
Birmingham, Alabama, or at such other place as Bank may designate by deposit
into the Borrower's Project Account, or by direct payment to the party entitled
to payment including, without limitation, the Bank, as provided in this
Agreement and as the Bank may determine to be appropriate in its sole
discretion.
(S) It is understood and agreed between the Borrower and Bank that
regardless whether Bank makes Advances out of the Acquisition and Construction
Loan to itself, or payments from Construction Funds to the Contractor or to any
person furnishing or performing labor, material, or services to the said
Project, or to any other persons or firms contemplated under the Budget or under
this Agreement, Borrower shall and does hereby agree that said payment
constitutes an irrevocable direction and authorization by the Borrower to the
Bank to so disburse the funds. No future direction or authorization from
Borrower shall be necessary to warrant such Advances and all such Advances shall
satisfy pro tanto the obligations of Bank hereunder and shall be secured by the
Mortgage as fully as if made to Borrower directly.
(T) Borrower shall cause the Contractor, upon demand of the Inspecting
Consultant, or of the Bank, to correct any structural defects in the
Improvements or any departure from the Plans and Specifications not approved by
Bank in the same manner as though the request had been made by the Borrower.
(U) The advance of any Construction Funds including, without limitation,
Acquisition and Construction Loan proceeds, shall not constitute a waiver of
Bank's right to require compliance with any provision of this Agreement or of
any of the Loan Documents. All conditions of the obligations of Bank to make
Advances hereunder and otherwise provided in this Agreement are imposed solely
and exclusively for the benefit of Bank or its assigns, and no other person or
entity shall, under any
20
circumstances, be deemed to be beneficiary of such conditions, any or all of
which may be fully waived in whole or in part by the Bank at any time, if in its
sole discretion it deems it advisable to do so. Nor shall any such waiver have
the effect of precluding Bank from thereafter declaring such non-compliance to
be a default under the terms of this Agreement. However, the Bank shall not be
obligated to make any disbursements hereunder while, in the reasonable judgment
of the Bank, any Default exists under the terms of this Agreement, the
Acquisition and Construction Loan Note, Mortgage or any other documents executed
by Borrower in connection with the Acquisition and Construction Loan.
(V) Mechanics' Liens. Borrower assumes sole responsibility, and agrees to
timely comply with the applicable provisions of the Florida Construction Lien
Laws, as from time to time amended, with reference to the aforesaid
Improvements. Bank shall have no obligation or responsibility in complying with
said law, and Borrower agrees to indemnify and hold Bank harmless against any
and all liability, damage, loss, cost or expense, including reasonable
attorney's fees, by reason of any non compliance with the Florida Construction
Lien Laws or any other applicable laws of the State of Florida, or to the
Borrower, or any contractor, subcontractor, sub-sub contractor, laborers,
lienor, or materialmen. All funds disbursed hereunder shall constitute receipt
of Loan proceeds by the Borrower. Borrower agrees that the Bank is not acting as
Borrower's agent or trustee for any purpose. Borrower further covenants and
agrees to:
(1) Furnish affidavits of no lien and such other affidavits, waivers or
releases of lien as may be required by the Bank herein or by the
Florida Construction Lien Laws during the Construction Period.
(2) Make proper payments under the Florida Construction Lien Laws and
pursuant to this Agreement.
(3) Forward to Bank copies of any notices, affidavits or other instruments
as required by the Bank or by the Florida Construction Lien Laws.
(4) Obtain the prior written approval of the Bank for any addenda to, or
modification or amendment of, the Construction Contract, or any change
or substitution of the Contractor.
(5) Use all monies disbursed to Borrower or on Borrower's behalf in prompt
payment of costs of construction of the Improvements as the same
become due.
Nothing in this Section 2.05 shall restrict the priority of the Mortgage in
------------
the Project or impose liability upon the Bank for compliance with the provisions
of the Florida Construction Lien Laws.
(W) Bank Not Agent of Borrower. The Borrower understands and agrees that
the Bank is not the agent or representative of the Borrower and neither the
Borrower nor Contractor are the agent of the Bank, and this Agreement shall not
be construed to make the Bank liable to materialmen, contractors, craftsmen,
laborers or others for goods or services delivered by them
21
upon the Property, or for debts or claims accruing to the said parties against
the Borrower, and it is distinctly understood and agreed that there is no
contractual relation either expressed or implied between the Bank, the
Contractor or any materialmen, subcontractors, craftsmen, laborers or any other
person supplying any work, labor or materials on the Project.
(X) Right of Entry to Project. The Bank and its agents including, without
limitation the Inspecting Consultant, shall at all times during construction
have the right of entry and free access to the Property and the Improvements and
the right to inspect all work done, labor performed and materials furnished, in
or about the Property and the Improvements. Disbursement of funds hereunder is
subject to periodic inspections and approvals by the Bank, or its agents
including, without limitation, the Inspecting Consultant, as to the Improvements
being constructed. Such inspections shall be solely and exclusively for the
information and benefit of the Bank, and Bank shall not be deemed a participant
or joint venturer in the construction of the Improvements for any purpose
whatsoever. Following such inspection, Bank may require the replacement of any
materials or workmanship that does not comply with the Plans and Specifications
previously approved by Bank or which are not furnished and installed in a good
and workmanlike manner. Borrower or its agent shall notify Bank when inspection
of the construction is warranted. The cost of reinspection occasioned for any
reason whatsoever shall be charged to the Borrower at a rate determined by Bank
in its sole discretion and such charges shall be paid by Borrower to Bank on
demand, or at the option of Bank deducted from the final draw. Final inspection
and approval of the Improvements by the Bank shall be a condition precedent to
final disbursement under this Agreement. Notwithstanding the foregoing, the
Bank shall not be required to ascertain that Improvements have been constructed
in accordance with the approved Plans and Specifications, or that construction
is in accordance with and does not violate any zoning ordinances, building
codes, environmental regulations, easements, covenants or restrictions and such
inspection shall be solely for the benefit of the Bank and shall not be relied
on by Borrower or other third parties for any purpose whatsoever.
(Y) Costs Relating to Construction. If any miscellaneous items of cost or
expense (other than internal overhead expense of the Bank), or any other
expenditures are incurred by Bank in connection with administration of the
Construction Funds or the Acquisition and Construction Loan, or in order to
protect, preserve or further secure the Bank's first mortgage lien or security
interests, or, if any action or proceedings shall be commenced by any person
other than the Bank to which action or proceedings the Bank is made a party or
in which it shall become necessary to defend or uphold the lien of the Bank's
Mortgages or security interests or the provisions of this Agreement, all sums
reasonably paid or incurred by the Bank for such expenses (excluding any sums
paid or incurred by Bank as a result of its own negligence or willful
misconduct), including reasonable attorney's fees, shall be paid by the
Borrower, together with interest thereon at the Default Rate, and any sum and
the interest thereon shall be added to the outstanding principal of the Loan and
of the Notes and any such sums shall be deemed to be secured by the Mortgages
and the security interests referred to herein and therein. The sums paid or
incurred by the Bank, in accordance with the terms of this paragraph, shall be
paid by the Borrower to the Bank promptly upon demand and the failure or
omission of the Borrower to do so shall entitle the Bank to add such sums to the
principal indebtedness of its Mortgages and Notes or, at its option, to declare
its Mortgages and Notes to be in default, thereupon maturing all of the unpaid
indebtedness including the sums
22
advanced hereunder.
(Z) Abandonment or Failure to Complete Improvements. The Borrower hereby
agrees that in the event that the Improvements are not completed in accordance
with the Plans and Specifications on or before the Completion Date (subject to
Force Majeure), or if work on said construction, or development shall cease
before completion, and said work shall remain abandoned for thirty (30) days
(subject to Force Majeure), then and in either event the entire principal sum
that has been disbursed by Bank on account of the Acquisition and Construction
Loan Note and Mortgages, less any amounts that may have been repaid by the
Borrower shall, at the option of the Bank, at once become due and payable with
all accrued interest thereon at the rate provided in said Acquisition and
Construction Loan Note; and in the event of abandonment of work upon the
Improvements for a period of thirty (30), the Bank may, at its option, also
enter into and upon the Project Site and complete the construction and
development of the Improvements, the Borrower hereby giving to the Bank full
power and authority to make such entry and to enter into such contracts or
arrangements as may be necessary, in the sole discretion of Bank, to complete
the Improvements. If, upon the happening of either event aforesaid, the Bank
enters upon said Project Site and undertakes the completing of the Improvements
as aforesaid, the Bank shall be entitled to have any of the Construction Funds
including, without limitation, the Acquisition and Construction Loan funds
disbursed to it or under its direction in the payment of bills theretofore or
thereafter contracted in connection with said construction and development work
or in protection and preservation of the Project. In addition it is agreed that
the Bank may, at its option, expend money in completing said construction and
development work and protecting and preserving the Project, which shall be over
and above the total amount of the Acquisition and Construction Loan and said
money when so expended shall be added to the principal of said Acquisition and
Construction Loan and the same, together with interest thereon at the Default
Rate, shall be secured by the lien of the Mortgages and the Bank's security
interests whether more or less than the face amount of the Acquisition and
Construction Loan Note together with interest as aforesaid which aggregate
amount shall be payable by the Borrower upon demand. For this purpose, Borrower
agrees that the Bank shall have the right but not the obligation to complete the
Project and hereby empower the Bank as follows: to use any funds of Borrower
including any balance which may be held in escrow and any funds which may remain
unadvanced hereunder for the purpose of completing the Improvements in the
manner called for by the Plans and Specifications and to protect and preserve
the Project; to make such additions and changes and corrections in the Plans and
Specifications which shall be necessary or desirable to complete the
Improvements in substantially the manner contemplated by the Plans and
Specifications; to employ such contractors, sub-contractors, agents, architects,
engineers and inspectors as shall be required for said purposes in Bank's sole
discretion; to pay, settle or compromise all existing bills and claims which are
or may be liens against the Project, or as may be necessary or desirable for the
completion of the Improvements, or the clearance of title; to execute all
applications and certificates which may be required by a construction contract
and to do any and every act which Borrower may do in their own behalf. The Bank
shall have power to prosecute and defend all actions or proceedings in
connection with the Improvements on the Property and to take such action and
require such performance as is deemed necessary by the Bank. Borrower hereby
assigns and quitclaims to Bank all sums advanced hereunder, and any sums in
escrow conditioned upon the use of said sums, if any, for the completion of the
Improvements pursuant to the terms of this Agreement.
23
(AA) Insurance During Construction. The Bank's interest in the Property
and the Improvements shall at all times be protected by adequate hazard and
builder's risk insurance. All policies of said insurance shall cover the
Improvements and on site materials against such hazards and shall be in the
amounts and from such insurance companies as the Bank shall from time to time
reasonably require. All such policies shall have an endorsement or loss payable
clause in favor of Bank naming Bank as an additional insured as its interest may
from time to time appear. Certificates relating to all such policies or
certified copies thereof shall be delivered to the Bank, together with evidence
of payment of premiums of said policies. Coverage under said policies shall
include, but not be limited to, fire and extended coverage on other perils,
flood insurance, public liability insurance and workers' compensation insurance,
the requirements of said coverage and the amounts of each to be determined in
the reasonable discretion of the Bank.
(BB) Creditors' Inquiries. Borrower hereby grants to the proper officials
of Bank the right to make response to any inquiries of creditors and/or
suppliers of the Borrower concerning the status of the Acquisition and
Construction Loan or the Term Loan. Bank agrees to furnish such information
from time to time to the best of its knowledge. Provided, however, that the
only duty of Bank in the furnishing of such information shall be not to
affirmatively deceive, as construed by decisions of the courts of the State of
Florida, which is equivalent to fraud and willful misrepresentation.
(CC) No Other Liens on Collateral. Except as otherwise permitted by this
Agreement, and with respect to items leased by Borrower for use in connection
with operation of the Project in the ordinary course of business, it shall be an
event of default under this Agreement if, without the Bank's written consent,
Borrower executes any conditional bill of sale, chattel mortgage or other
security instrument (other than Permitted Liens) covering any Collateral or if
Borrower sells or conveys title to or encumber any of the Collateral, the
Improvements or the Project.
(DD) Assignment of Contracts, etc. Borrower shall deliver to Bank an
executed copy of each contract that either Borrower or Astrotech has entered
into with an architect or engineer (if any), contractor or sub-contractors (if
any) relating to the Project, and if applicable and requested by the Bank,
copies of the contractor's or sub-contractor's contracts with all subcontractors
and sub-sub-contractors, and any amendments or change orders thereto, for
construction of the Improvements. The architect, engineer and contractor shall
each be acceptable to and approved by the Bank in its reasonable discretion and
all contracts with such parties shall be subject to the Bank's approval and
shall, upon request, be collaterally assigned to Bank. It is expressly agreed
that Bank's approval of such architect, engineer and contractor and the
aforesaid contracts is for Bank's exclusive benefit and neither the Borrower,
Astrotech nor any other party shall be entitled to construe or rely upon Bank's
approval as any representation or warranty of the fitness or sufficiency of any
such architect, engineer, contractor, sub-contractor or contract.
SECTION 2.06. The Project Cost Budget.
A. The Bank shall not under any circumstances be deemed to be obligated
to make Advances or Loans to the Borrower in excess of the Maximum Loan Amount
or contrary to the
24
Budget.
B. After making the initial Advance for payoff of the CIT Mortgage, Bank
shall only make Advances for those purposes identified in the Budget and at the
times contemplated in the Funding Schedule, as revised from time to time in
accordance with this Agreement. Borrower and Bank hereby agree that the Budget
cannot be modified, amended or supplemented without the prior written consent of
the Bank except as otherwise provided in this Agreement with respect to non-
material Change Orders. The Bank shall have no liability, however, to any other
Person including, without limitation, Borrower, for the misapplication of funds
by Borrower in a manner other than provided for in the Budget.
SECTION 2.07. The Term Loan.
(A) Conversion. On the Conversion Date, the Borrower may convert the
----------
unpaid principal amount of the Acquisition and Construction Loan into the Term
Loan in accordance with the provisions of this Section 2.07. Such conversion
------------
shall constitute renewal and extension of the loan evidenced by the Acquisition
and Construction Loan Note and shall not constitute the making of a new loan by
the Bank nor the undertaking by Borrower of new indebtedness. Upon
satisfaction of the terms and conditions hereinafter set forth and relying upon
the representations and warranties herein Bank agrees to convert, renew and
extend the Acquisition and Construction Loan to the Term Loan on the Conversion
Date. In the event that the Acquisition and Construction Loan is not converted,
renewed and extended in accordance with this Section 2.07, then the Acquisition
------------
and Construction Loan and the Acquisition and Construction Loan Note shall
mature and be payable by Borrower to the Bank in accordance with the terms of
the Acquisition and Construction Loan Note and the Loan Documents including,
without limitation, this Agreement.
(B) Conditions Precedent to Conversion. Borrower's right to convert,
----------------------------------
renew and extend the outstanding, unpaid principal amount of the Acquisition and
Construction Loan into a Term Loan on the Conversion Date in accordance with
this Section 2.07 is expressly subject to the separate satisfaction as of the
------------
Conversion Date of each of the following conditions:
(1) No Event of Default shall exist under this Agreement or any of the
Loan Documents;
(2) Borrower shall be in compliance with each of the requirements set
forth in Sections 2.02 through 2.06 and in Article III of this Agreement;
-------------------------- -----------
(3) Borrower shall have executed and delivered to Bank a fully
completed Term Note in the form attached hereto as Exhibit "E" in renewal
and extension, but not novation or discharge of, the Acquisition and
Construction Loan Note, in an aggregate original principal amount equal to
the outstanding principal balance of the Acquisition and Construction Loan
Note;
(4) Bank shall have received a report from Borrower, and if Bank has
required the services of an Inspecting
25
Consultant, then also from Bank's Inspecting Consultant, certifying that
all Construction Funds theretofore disbursed to Borrower have been used in
accordance with the Budget, and that the Improvements have been acquired,
installed, constructed and completed satisfactorily in accordance with the
Plans and Specifications and the terms of the Construction Contract;
(5) Bank shall have received a copy of all Certificates of Occupancy
necessary to occupy the Project from the appropriate governmental authority
indicating that the Improvements have been completed and have been approved
for occupancy;
(6) The Work under the Construction Contract shall have reached
Substantial Completion and a certificate of completion shall have been
provided to the Bank from the Contractor indicating that the Improvements
have been constructed and completed in accordance with the Plans and
Specifications and that the Improvements are open and operating as
designed;
(7) All representations and warranties of Borrower set forth in this
Agreement remain true and correct and Bank shall have received any and all
additional documents, certificates and instruments as may be reasonably
requested; and
(8) In the event any portion of the Improvements including, without
limitation, furniture, fixtures and Equipment, are to be leased by Borrower
from third parties, Borrower, before executing any lease regarding same,
shall have granted to Bank a security interest in the lease and shall have
obtained from the lessor an agreement to recognize Bank, after an Event of
Default, as lessee thereunder should Bank elect to maintain the lease.
(C) Principal Amount of Term Loan. Upon separate satisfaction of each and
every condition precedent to conversion of the Acquisition and Construction
Loan, the Bank shall renew and extend the maturity of the consolidated principal
amount outstanding and shall convert same to the Term Loan and shall accept the
Term Loan Note from Borrower in renewal and extension, but not novation or
discharge of, the Acquisition and Construction Loan Note. The amount of the
Term Loan and the original principal amount of the Term Loan Note shall, in such
event, be equal to the outstanding principal balance of the Acquistion and
Construction Loan Note on the Conversion Date.
(D) Interest. (i) Interest shall accrue on the outstanding principal
balance of the Term Loan at a LIBOR Rate (subject to provisions of this
Agreement providing for a different Applicable Rate under limited circumstances)
provided, however, that after the Term Loan Maturity Date, interest shall accrue
at the Default Rate. Interest shall be paid to the Bank on the outstanding
principal balance of the Term Loan on each Interest Payment Date provided that
all outstanding principal plus accrued interest on the Term Loan shall be due
and payable on the Term Loan Maturity Date. All payments received by the Bank
shall be applied to payment of costs, fees and expenses to which the Bank is
entitled under the Loan Documents, and then to payment of accrued interest and
then to payment of principal.
26
(ii) Notwithstanding anything herein to the contrary, no Interest Period
may end later than the Term Loan Maturity Date. After the occurrence of an Event
of Default, the Applicable Rate may not be continued at or converted into the
LIBOR Rate but shall be the Default Rate.
(iii) In the event that the Bank shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the Bank to make, continue
or maintain the principal amount of a LIBOR Loan) as a result of any repayment
or prepayment of the principal amount of any LIBOR Loan on a date other than the
scheduled last day of the Interest Period applicable thereto then, upon written
notice from the Bank to the Borrower the Borrower shall, within five days of
receipt thereof, pay directly to the Bank such amount as will (in the reasonable
determination of the Bank) reimburse the Bank for such loss or expense. Such
written notice shall, in the absence of manifest error, create a rebuttable
presumption of the amount of such losses or expenses.
(iv) Interest shall accrue on the outstanding principal balance of the
Term Loan until the Term Loan Maturity Date at a LIBOR Rate (subject to
provisions of this Agreement providing for a different Applicable Rate under
limited circumstances) provided, however, that after the Term Loan Maturity
Date, interest shall accrue at the Default Rate.
(v) Interest shall, in every case, be calculated on an assumed year of
360 days for the actual number of days elapsed.
(E) Principal Payments. (i) During the Term Period, principal shall be
payable in consecutive quarterly installments in the respective amounts set
forth in Exhibit "G" attached hereto and incorporated herein by reference,
-----------
commencing January 15, 2002, and continuing on the 15/th/ day of each January,
April, July and October of each year thereafter until the Term Loan Mauturity
Date upon which date all unpaid principal plus accrued but unpaid interest
thereon shall be due and payable by the Borrower.
(ii) All payments received by the Bank shall be applied first to payment
of costs, fees and expenses to which the Bank is entitled under the Loan
Documents, then to accrued but unpaid interest and then to reduction of
principal.
(F) Right of Prepayment of the Term Loan. Subject to the provisions of
this Article II including, without limitation, Section 2.07(D)(iii), Borrower
--------------------
shall have the right to prepay the Term Loan, in whole or in part without
penalty provided, however, that Borrower shall pay accrued interest to the date
of such prepayment and any costs incurred by the Bank by reason of prepayment
occurring prior to the end of an Interest Period. Borrower may be liable to pay
a penalty fee under a Hedge Agreement depending upon the interest rate
environment at the time of prepayment. Prepayments shall be made to Bank in
immediately available funds and shall be applied to the last of the
installment(s) to mature, and any such prepayment shall not affect or vary the
obligation of Borrower to pay any installment when due. The Borrower shall not
have the right to re-borrow amounts that have been prepaid it being expressly
acknowledged by Borrower that there is no revolving feature to the Term Loan.
27
SECTION 2.08. Manner of Payment of Loans. All amounts payable by the
Borrower to Bank in connection with the Acquisition and Construction Loan Note
and the Term Loan Note shall be paid in lawful money of the United States of
America in collected funds at the principal office of Bank in Birmingham,
Alabama (or such other office of the Bank as it may designate from time to
time), not later than 1:00 p.m., Eastern Time) on the day the payment is due.
Payments received after 1:00 p.m., Eastern Time shall be deemed received on the
next Business Day. If any payment or prepayment falls due on a day that is not
a Business Day, then such due date shall be extended to the first succeeding
Business Day.
SECTION 2.09. Non Usury. Notwithstanding any other provision of this
Agreement, the Notes or of any instrument securing the Notes or any other
instrument executed in connection with the Loans evidenced thereby, it is
expressly agreed that amounts payable under the Notes or under the other
aforesaid instruments for the payment of interest or any other payment in the
nature of or which would be considered as interest or other charge for the use
or loan of money shall not exceed the highest rate allowed by law, from time to
time, and in the event the provisions of this Agreement, the Notes or of such
other instruments referred to above in this paragraph with respect to the
payment of interest or other charge for the use or loan of money shall result in
payments of interest exceeding such limitation, then the excess over such
limitation shall not be payable and the amount otherwise agreed to have been
paid shall be reduced by the excess so that such limitation will not be
exceeded, and if any payment actually made shall result in such limitation being
exceeded, the amount of the excess shall constitute and be treated as a
repayment of principal and shall operate to reduce such principal by the amount
of such excess, or if any such payment is in excess of the principal
indebtedness, such excess shall be refunded.
SECTION 2.10. LIBOR Rate Lending Unlawful. If as a result of a regulatory
---------------------------
change the Bank shall reasonably determine that it is unlawful for the Bank to
make, continue or maintain the LIBOR Loan, the obligation of the Bank to make,
continue or maintain any such LIBOR Loans shall, upon such determination (and
telephonic notice thereof, to be subsequently confirmed in writing, to the
Borrower which notice shall, in the absence of manifest error, create a
rebuttable presumption as to the effect of such regulatory change as specified
above), forthwith be suspended until the earliest date the Bank can determine
and notify the Borrower that the circumstances causing such suspension no longer
exist, and the interest rate applicable to the outstanding LIBOR Loan shall
automatically convert to the Base Rate on the last day(s) of the then current
respective Interest Period with respect thereto or sooner, if required by such
regulatory change, provided that the Bank shall take any reasonable actions
--------
available to it (including designation of its lending offices) consistent with
legal and regulatory restrictions that will avoid the need for such suspension
and will not, in the reasonable judgment of the Bank, be otherwise materially
disadvantageous to the Bank.
SECTION 2.11. Deposits Unavailable. If the Bank shall have reasonably
--------------------
determined that quotations of interest rates for the relevant deposits referred
to in the definition of "Interbank Rate" are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining rates of
interest for the LIBOR Loan as provided herein or that, by reason of
circumstances affecting the London interbank eurodollar market, adequate means
do not exist for ascertaining the interest rate hereunder for the LIBOR Loan,
then, upon telephonic notice from the Bank to the Borrower to be subsequently
confirmed in writing (such notice, in the absence of
28
manifest error, to create a rebuttable presumption as to the effect specified
above), the obligations of the Bank to make or continue the LIBOR Loan shall
forthwith be suspended until the earliest date that the Bank can reasonably
determine and notify the Borrower that the circumstances causing such suspension
no longer exist, provided that the Bank shall take any reasonable actions
--------
available to it to obtain the necessary quotations of interest rates in the
London interbank eurodollar market (or another eurodollar market acceptable to
the Bank and to the Borrower).
SECTION 2.12. Treatment of Affected Loans. If the obligation of the Bank
---------------------------
to make, continue or maintain the LIBOR Loan shall be suspended pursuant to
Section 2.10 or 2.11 above, the interest rate applicable to the outstanding
- --------------------
LIBOR Loan shall be automatically converted to the Base Rate on the last day(s)
of the then current Interest Period for such LIBOR Loan (or, in the case of a
suspension pursuant to Section 2.10, sooner, if required by the regulatory
------------
change that gave rise to such suspension) and, unless and until the Bank gives
notice as provided below that the circumstances specified in Section 2.10 or
---------------
2.11 (as the case may be) that gave rise to such suspension no longer exist the
- ----
LIBOR Loan that would otherwise be made or continued by the Bank at the LIBOR
Rate shall be made or continued instead at the Base Rate.
If the Bank gives notice to the Borrower that the circumstances specified
in Section 2.10 or 2.11 that gave rise to such suspension no longer exist (which
--------------------
the Bank agrees to do promptly upon such circumstances ceasing to exist) the
LIBOR Loan converted to accrue interest at the Base Rate shall be re-converted,
on the first day of the next succeeding Interest Period for such outstanding
LIBOR Loan.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
SECTION 3.01. Conditions Precedent to Making Loan Advances. In addition
to the conditions precedent set forth in Article II of this Agreement, the
obligation of the Bank to disburse Loan proceeds as provided in Article II of
this Agreement is subject to the further condition precedent that the Bank shall
have received on or before the day of Closing the Acquisition and Construction
Loan, or on or before the day of making each Advance during the Construction
Period, as indicated in this Section 3.01, each of the following, in form and
------------
substance satisfactory to the Bank and its counsel:
(1) Note. At Closing of the Acquisition and Construction Loan (hereafter
in this Section 3.01, "Closing"), the Acquisition and Construction Loan Note
duly executed by the Borrower, and (ii) at Closing of the renewal and extension
of the Acquisition and Construction Loan by conversion to the Term Loan, the
Term Loan Note duly executed by Borrower;
(2) Evidence of all corporate action by the Borrower and Guarantors. At
Closing, copies of all corporate action taken by the Borrower and the
Guarantors, certified as of the date of this Agreement, including resolutions of
their Boards of Directors, authorizing the execution, delivery, and performance
of the Loan Documents to which each is a party.
29
(3) Incumbency and signature certificates of the Borrower and Guarantors.
At Closing, a certificate (dated as of the date of this Agreement) of each of
the Borrower and the Guarantors certifying the names, incumbency and true
signatures of their respective officers authorized to sign the Loan Documents to
which each is a party, and having attached thereto certified copies of their
respective Articles of Incorporation and By-Laws;
(4) Opinions of Counsel for the Borrower and for the Guarantors. At
Closing, an opinion of counsel for each of the Borrower and the Guarantors
respectively, in form and substance acceptable to the Bank and as to such other
matters as the Bank may reasonably request;
(5) Owner Funds. At or prior to making the first Advance for Construction
Costs, Borrower shall provide to the Bank evidence reasonably satisfactory to
the Bank that all items of the Budget to be paid from Owner Funds by Borrower
have been paid or that provision has been made for payment;
(6) Items Relating to Non-Real Property Collateral. The Bank shall have
received at Closing a Security Agreement from Borrower in form and substance
acceptable to the Bank pledging as Collateral all personal property assets of
the Borrower accompanied by appropriate financing statements in Florida form for
filing for the purpose of perfecting the Bank's security interest. Upon request
by the Bank, at or before each Advance during the Construction Period, the Bank
shall have received, prior to disbursement of proceeds of the Loan for which
such property is pledged as Collateral a current lien search in a form and from
a source satisfactory to the Bank relating to the Collateral and showing that no
other liens of equal or greater priority than the lien of the Bank exist with
respect to such Collateral except such as will be paid, satisfied and discharged
with the proceeds of the Loan Advance and, in such event, that each such lienor
has prepared and delivered for filing with the appropriate governmental agency
upon payment an appropriate satisfaction of lien;
(7) Items Relating to Real Property Collateral. The Bank shall have
received the following which shall (except for the Mortgage) each be from a
source independent of the Borrower and in a form and giving conclusions
acceptable to the Bank, and each certified to the Bank;
(a) at Closing a Mortgage from Astrotech including therein a collateral
assignment of rents, leases and profits, securing the Notes, duly
executed in recordable form and naming the Bank as mortgagee,
encumbering each of the properties constituting Real Property
Collateral;
(b) at Closing, a deed of conveyance of title to the Real Property
Collateral from Astrotech to Borrower duly executed in recordable form;
(c) at Closing a Mortgage from Borrower including therein a collateral
assignment of rents, leases and profits, securing the Notes, duly
executed in recordable form and naming the Bank as mortgagee,
encumbering each of the properties constituting Real Property
Collateral;
30
(d) (1) at Closing (with appropriate endorsements at the time of each
Advance during the Construction Period), a standard form ALTA mortgagee
title insurance commitment relating to the Real Property Collateral, with a
Title Policy and Form 9 comprehensive endorsement issued promptly after
recording of the Mortgage, naming the Bank as the insured mortgagee and
showing:
(i) good and marketable fee simple title acceptable to the Bank being
vested in Astrotech prior to Closing and in Borrower upon Closing; and
(ii) that the Bank's mortgages constitute a first priority lien
encumbering the mortgaged Real Property Collateral without qualification or
exception other than permitted encumbrances accepted by the Bank in writing;
and
(2) at Closing, a certificate evidencing the existence of public
liability insurance required by Section 5.05 of this Agreement;
------------
(e) at Closing, environmental indemnification agreements, in form and substance
acceptable to the Bank, relating to the Real Property Collateral, whereupon
Astrotech and the Borrower respectively agree to indemnify the Bank against
such environmental hazards and other matters as the Bank may require;
(f) at Closing, copies of each of the MDC Contract and the LMCLS Contract fully
signed by the parties thereto together with a current assignment to the
Bank of all rights (but not the obligations) of Borrower and Astrotech as
landlord under each of the MDC Contract and the LMCLS Contract including,
without limitation, the right to receive CLIN 1 Payments under each of the
MDC Contract and the LMCLS Contract, and providing for current, direct
payment to the Bank of all CLIN 1 Payments under said MDC Contract and
LMCLS Contract; provided, however, that if the MDC Contract is not yet
signed as of the Closing, then a copy of such fully signed MDC Contract and
the assignment relating thereto shall be provided to the Bank within forty
five (45) days after Closing and the Maximum Amount available for Advances
shall be reduced by 60% until such requirement is satisfied, provided, that
such reduction shall be eliminated when the requirement is satisfied within
the 45-day period;
(g) a duly executed Subordination, Non-Disturbance and Attornment Agreement
from each of McDonnell Douglas Corporation and Lockheed Martin Commercial
Launch Services, Inc. relating to the tenancy under each of the MDC
Contract and the LMCLS Contract, such agreement, all
31
in form and substance acceptable to the Bank;
(h) prior to making any Advances during the Construction Period (or as
otherwise provided by law or indicated herein) relating to any phase of the
Project, the following items for the relevant phase of the Project:
(i) an ALTA foundation/boundary survey of the Real Property
Collateral showing an absence of easements, encroachments, overlaps
and other conditions which, in the reasonable opinion of the Bank,
would impair the value of the Real Property Collateral as Collateral
for the Notes, with updates at the time of each Advance if requested
by the Bank;
(ii) Project construction Plans and Specifications;
(iii) a fully executed contract for the relevant phase of the Project
including a Project cost breakdown and construction Budget/Funding
Schedule;
(iv) copies of the general contract and all sub-contractor purchase
orders;
(v) builder's risk insurance policy relating to the relevant phase
of the Project from a source and in a form acceptable to the Bank and
naming Bank as additional insured and loss payee;
(vi) at Closing, flood plain certificate stating whether the Real
Property Collateral lies within or without a special flood hazard area
according to a FIA flood hazard boundary map issued by the Department
of Housing and Urban Development Federal Insurance Administration and,
if the Real Property lies within such flood hazard area, flood
insurance in an amount, form a source and in a form acceptable to the
Bank and naming the Bank as additional insured and loss payee;
(vii) at Closing, written verification by appropriate governmental
authorities of appropriate land use and zoning for the relevant phase
of the Project;
(viii) copies of all permits and approvals necessary for site
development and construction of the relevant phase of the Project
including, without limitation, federal permits from entities such as
the Environmental Protection Agency and Army Corps of Engineers, state
and local permits and development of regional impact statements with
32
regulatory responses and approvals;
(ix) collateral assignments of all of the items listed in (ii)
through (iv) and (viii) to the Bank to secure the Notes;
(x) the documents listed in Exhibit "D" relating to the relevant
----------
phase of the Project not already provided to the Bank and not
otherwise referenced above and such other information as the bank may
reasonably request; and
(xi) a payment and performance bond from a source and in a form
acceptable to the Bank.
(f) Satisfaction of the requirements of the Commitment Letter the terms of
which are incorporated herein by reference, provided, however, that in
the event of a conflict between the terms of the Commitment Letter and
the terms of this Agreement, the terms of this Agreement shall
control.
(8) Insurance. The Bank shall receive, prior to making any Advance for any
phase of the Project, evidence satisfactory to it that all Collateral and
Improvements that are part of such phase of the Project and are to be located on
the Real Property Collateral are insured pursuant to a Builder's Risk policy
against fire, theft and casualty loss to full insurable value (less customary
deductibles and co-payment) and that the Bank is named as loss payee and an
additional insured as its interest may appear and such other insurance as is
required by the Commitment Letter.
(9) Guaranty Agreements. A Guaranty Agreement from each of the Guarantors,
in form and substance acceptable to the Bank, whereby each Guarantor guaranties
payment and collection of the obligations of Borrower under the Loan Documents.
(10) Stock Pledge Agreements. (a) A Stock Pledge and Security Agreement
from Spacehab pledging 100% of the common voting stock of Astrotech as security
for the performance of Spacehab's obligations under its Guaranty Agreement,
accompanied by the stock certificates endorsed in blank or, if the stock is held
in uncertificated form, a depository agreement or other agreement, in any case
in form and substance acceptable to the Bank, from a third party depository or
transfer agent agreeing to act as agent for the Bank to hold the uncertificated
stock for the Bank's account as secured party.
(b) A Stock Pledge and Security Agreement from Astrotech pledging 100% of
the common voting stock of Borrower as security for the performance of
Astrotech's obligations under its Guaranty Agreement, accompanied by the stock
certificates endorsed in blank or, if the stock is held in uncertificated form,
a depository agreement or other agreement, in any case in form and substance
acceptable to the Bank, from a third party depository or transfer agent agreeing
to act as agent for the Bank to hold the uncertificated stock for the Bank's
account as secured party.
33
(11) Security Agreement. A Security Agreement from Astrotech, in form and
substance acceptable to the Bank, pledging certain Florida personal property
assets of Astrotech as collateral security for the performance of Astrotech's
obligations under its Guaranty Agreement accompanied by appropriate financing
statements in Florida form for filing for the purpose of perfecting the Bank's
security interest.
(12) Other Documents. The Bank shall have received such other approvals,
opinions or documents as the Bank may reasonably request.
(13) General. All agreements, instruments and proceedings in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to Bank, and Bank shall have received on the
date of Closing or on the date of each Advance, as appropriate, copies of all
documents which it may have requested in connection with this transaction.
(14) No Default. No event shall have occurred and be continuing as of the
date of Closing and as of the date of each Advance which constitutes an Event of
Default or which would constitute an Event of Default with the giving of notice
or the lapse of time or both.
(15) Lien Searches. Bank shall have received at Closing and on the date of
each Advance any lien searches that it deems necessary from each filing office
where the Borrower has a place of business, where the Collateral is located or
where filings are required to be made, reflecting that the Collateral is free
and clear of all liens and encumbrances except those permitted by this
Agreement.
(16) Payment of Fees. Borrower shall have paid at or before Closing to or
for the benefit of the Bank all reasonable fees required to be paid by the
Borrower at Closing pursuant to the Commitment Letter or this Agreement
including, without limitation, the reasonable fees and expenses of Bank's legal
counsel.
SECTION 3.02. Execution of Additional Security Documents. The Borrower
agree to execute and deliver, or cause the execution and delivery of, such
security agreements, assignments, pledges, consents and financing statements as
may reasonably be required by Bank to evidence security for the Loan, all in
form satisfactory to Bank.
SECTION 3.03. Conditions Precedent for the Bank's Benefit. The foregoing
conditions precedent exist solely for the Bank's benefit, and the Bank in its
reasonable discretion shall determine whether they have been satisfied.
ARTICLE IV
REPRESENTATION AND WARRANTIES
-----------------------------
The Borrower makes the following representations and warranties to the
Bank.
34
SECTION 4.01. Incorporation, Good Standing, and Due Qualification. Borrower
is a corporation duly organized, validly existing, and having an active status
under the laws of the State of Florida; has the corporate power and authority to
own its assets and to transact the business in which it is now engaged or
proposed to be engaged; and is duly qualified and in good standing under the
laws of the State of Florida and of each other jurisdiction in which such
qualification is required, if any.
SECTION 4.02. Corporate Power and Authority. The execution, delivery, and
performance by the Borrower of the Loan Documents have been duly authorized by
all necessary corporate action and do not and will not (1) require any consent
or approval of the stockholders or of any other corporation or business entity;
(2) contravene either Borrower's Articles of Incorporation or By-Laws; (3)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to Borrower; (4) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease,
or instrument to which either Borrower is a party or by which it or its
properties may be bound or affected; (5) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties now owned
or hereafter acquired by the Borrower other than those created by the Loan
Documents in favor of the Bank; or (6) cause the Borrower to be in default under
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination, or award or any such indenture, agreement, lease, or instrument.
SECTION 4.03. Legally Enforceable Agreement. This Agreement is, and each of
the other Loan Documents when delivered under this Agreement, will be legal,
valid, and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, and other
similar laws affecting creditors' rights generally, and principles of equity.
Borrower represents and warrants that it is not insolvent or contemplating
filing a voluntary petition for bankruptcy nor is Borrower aware of any
possibility or threat of being subject to any petition for involuntary
bankruptcy.
SECTION 4.04. Financial Statements. All financial statements of Borrower
and/or Astrotech which have been furnished to the Bank by the Borrower, are
complete and correct and fairly present, in all material respects, the financial
condition of the Borrower and/or Astrotech and the results of the operations of
the Borrower and/or Astrotech for the periods covered by such statements, all in
accordance with GAAP and there has been no material adverse change in the
condition (financial or otherwise), business, or operations of the Borrower
and/or Astrotech. There are no liabilities of the Borrower and/or Astrotech
fixed or contingent, which are material but are not reflected in financial
statements provided to the Bank or in the notes thereto, other than liabilities
arising in the ordinary course of business. No information, exhibit, or report
relating to the Borrower and/or Astrotech furnished by the Borrower to the Bank
in connection with the negotiation of or pursuant to this Agreement contained
any material misstatement of fact or omitted to state a material fact or any
fact necessary to make the statement contained therein not materially
misleading. Any financial projections in respect of Borrower and/or Astrotech
provided to the Bank have been prepared based upon present facts and using
assumptions which Borrower and/or
35
Astrotech believes to be fair and reasonable.
SECTION 4.05. Labor Disputes and Acts of God. Neither the business nor the
properties of the Borrower are now affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy, or other casualty, nor does the
Borrower have any reason to believe that either of them will be affected in the
future, by any strike, lockout or other labor dispute or embargo (whether or not
any of the foregoing are covered by insurance) materially and adversely
affecting such business or properties or the operation of the Borrower.
SECTION 4.06. Other Agreements. Borrower is not a party to any indenture,
loan, or credit agreement or, to Borrower's knowledge, to any lease or other
agreement or instrument, or subject to any charter or corporate restriction
which could have a material adverse effect on the business, properties, assets,
operations, or conditions, financial or otherwise, of the Borrower, or the
ability of the Borrower to carry out its obligations under the Loan Documents to
which it is a party. Borrower is not in default in respect of payment or, to
its knowledge, in any other respect in the performance, observance, or
fulfillment of any of the obligations, covenants, or conditions contained in any
agreement or instrument material to its business to which it is a party except
where such default does not have and will not have a material adverse effect on
Borrower, its business, assets, properties or financial condition.
SECTION 4.07. Litigation. There is no pending or, to Borrower's knowledge,
threatened action or proceedings against or affecting the Borrower before any
court, governmental agency or arbitrator which may, in any one case or in the
aggregate, materially adversely affect the financial condition, operations,
properties, or business of the Borrower or the ability of the Borrower to
perform its obligation under the Loan Documents to which it is a party.
SECTION 4.08. No Defaults on Outstanding Judgments or Orders. The Borrower
is not in default with respect to any judgment, writ, injunction, decree, rule,
or regulation of any court, arbitrator, or federal, state, municipal, or other
governmental authority, commission, board, bureau, agency or instrumentality,
domestic or foreign.
SECTION 4.09. Ownership and Liens. The Borrower has title to, or valid
leasehold interests in, all of its properties and assets, real and personal,
including the properties and assets and leasehold interest reflected in the
financial statements referred to in Section 4.04 and all properties and assets
------------
pledged as Collateral to the Bank (other than any properties or assets disposed
of in the ordinary course of business), and none of the properties and assets
owned by the Borrower and none of their respective leasehold interests is
subject to any Lien, except Permitted Liens.
SECTION 4.10. Operation of Business. To the best of Borrower's knowledge,
the Borrower possesses, or will obtain prior to the first Advance for which such
may be needed, all licenses, permits, franchises, patents, copyrights,
trademarks, and trade names, or rights thereto (except where the failure to
obtain same does not have and will not have a material adverse effect on the
Borrower, its business, assets, properties or financial condition), to conduct
its business substantially as now conducted and as presently proposed to be
conducted, and the Borrower is not
36
in violation of any valid rights of others with respect to any of the foregoing.
SECTION 4.11. Taxes. The Borrower has filed (or have timely filed
extensions for) all tax returns (federal, state and local) required to be filed
and has paid all taxes, assessments, and governmental charges and levies thereon
which are due, including interest and penalties, except for such taxes as may be
contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
So long as the Notes shall remain unpaid or the Bank shall have any
Commitment under this Agreement, the Borrower shall:
SECTION 5.01. Maintenance of Existence. Preserve and maintain its
corporate existence and good standing in the jurisdiction of its incorporation,
and qualify and remain qualified as a foreign corporation in each jurisdiction
in which such qualification is required.
SECTION 5.02. Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP,
reflecting all financial transactions of the Borrower.
SECTION 5.03. Maintenance of Properties. Maintain, keep, and preserve, all
of its properties (corporeal or incorporeal) necessary or useful in the proper
conduct of its business, in the aggregate, in reasonable working order and
condition, ordinary wear and tear excepted.
SECTION 5.04. Conduct of Business. After commencement of operation of the
Project, continue to engage in an efficient and economical manner in the
business conducted by Borrower on the date of Closing the Acquisition and
Construction Loan.
SECTION 5.05. Maintenance of Insurance. Maintain insurance with financially
sound and reputable insurance companies or associations in such amounts and
covering such risks as are usually carried by companies engaged in the same or a
similar business and similarly situated, which insurance may provide for
reasonable deductibility from coverage thereof, and shall include, without
limitation, (i) Builder's Risk Insurance required by Section 3.01(8) (ii) fire,
---------------
theft and casualty insurance insuring property pledged to secure the Loans in an
amount of not less than full insurable value, and (iii) public liability
insurance including, without limitation automobile and appropriate liability
coverage relating to the Collateral in not less than the amounts of present
coverage in existence on the date of this Agreement, and (iii) after
commencement of operation of the Project, business interruption insurance. All
personal property pledged as Collateral for the Loan shall be insured against
fire, theft and casualty loss to the full insurable value thereof. All policies
of insurance shall name the Bank as an additional insured, loss payee or primary
beneficiary as its interest may appear.
37
Borrower shall immediately notify the Bank upon the occurrence of any
business interruption or of any casualty, damage or loss to Collateral or
seizure of any Collateral in excess of $75,000 for any reason including, without
limitation, action of any foreign government.
SECTION 5.06. Compliance with Laws. Borrower shall comply in all material
respects with all applicable laws, rules, regulations, and orders, such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments, and governmental charges imposed upon it or
upon its property provided, however, that Borrower shall have the right in good
faith to contest the imposition of any tax or the levy of any assessment or
governmental charge so long as non-payment during such contest does not result
in the imposition of a Lien upon the Collateral.
SECTION 5.07. Right of Inspection. Borrower shall, at any reasonable time
and from time to time and upon reasonable notice to Borrower (except that no
notice shall be required in the Event of Default), permit the Bank or any agent
or representative thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower, and
to discuss the affairs, finances, and accounts of the Borrower with any of their
respective officers and directors and the Borrower's independent accountants.
Such inspection shall be conducted during normal business hours and, to the
extent practicable, shall not unreasonably interfere with Borrower's normal
business affairs.
SECTION 5.08. Reporting Requirements. Furnish to the Bank:
(1) Interim financial statements of Borrower and Astrotech. As soon as
available and in any event within forty five (45) days after the end of each of
the first three (3) quarters of each fiscal year of the Borrower, combining and
combined balance sheets of the Borrower and Astrotech as of the end of such
quarter, statements of income and retained earnings of the Borrower and
Astrotech for the period commencing at the end of the previous fiscal year, if
any, and ending with the end of such quarter, and a balance sheet and statement
of change in financial position of the Borrower and Astrotech for the portion of
the fiscal year ended with the last day of such quarter, all in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the previous fiscal year, if any, and all
prepared in accordance with GAAP consistently applied and certified by their
respective chief financial officers (subject to year-end adjustments);
(2) (a) SPACEHAB financial statements. As soon as available and in any
event within thirty (30) days after filing with the Securities Exchange
Commission ("SEC"), SPACEHAB's SEC Forms 10K and 10Q; and
(b) Borrower and Astrotech annual financial statements. As soon as
available and in any event within one hundred twenty (120) days after the end of
each fiscal year of Borrower, combining and combined balance sheets of the
Borrower and Astrotech as of the end of such fiscal year, statements of income
and retained earnings of the Borrower and Astrotech for the period commencing at
the end of the previous fiscal year, and a balance sheet and statement of change
in
38
financial position of the Borrower and Astrotech for the fiscal year just ended,
all in reasonable detail and stating in comparative form the respective figures
for the corresponding date and period in the previous fiscal year, if any, and
all prepared in accordance with GAAP consistently applied and certified by their
respective chief financial officers (subject to year-end adjustments);
(3) Environmental Reports. Within thirty (30) days after sending same to
any federal, state or local environmental regulatory agency, copies of any
reports or assessments relating to the environmental condition of the Real
Property Collateral including, without limitation, reports or assessments
relating to the presence, suspected presence, release or discharge or suspected
release or discharge of any Hazardous Material or Hazardous Substance in or into
the air, soil, surface water, groundwater or soil vapor at, on, about, under, or
within any of the Real Property Collateral or any portion thereof. For the
purposes hereof, the terms "Hazardous Material" and "Hazardous Substance" shall
have the meanings ascribed thereto in the Mortgage and in the Environmental
Indemnification Agreement between the Bank and the Borrower relating to the Real
Property Collateral.
(4) Notice of litigation. Promptly after the commencement thereof, notice
of all actions, suits, and proceedings before any court or governmental
department, commission, board, bureau, agency, or instrumentality, domestic or
foreign, against or, to Borrower's knowledge, materially affecting the Borrower
or Astrotech or any Subsidiary, which, if determined adversely to the Borrower
or Astrotech or such Subsidiary, would have a material adverse effect on the
financial condition, properties, or operations of the Borrower or Astrotech or
such Subsidiary;
(5) Notice of Defaults and Events of Default. Immediately after the
occurrence of each Default or Event of Default, a written notice setting forth
the details of such Default or Event of Default and the action which is proposed
to be taken by the Borrower with respect thereto;
(6) Reports to other creditors. Upon reasonable request by the Bank made
not more frequently than quarterly, promptly after the furnishing thereof by
Borrower or Astrotech, copies of any statement or report furnished to any other
party pursuant to the terms of any indenture, loan, or credit or similar
agreement and not otherwise required to be furnished to the Bank pursuant to any
other clause of this Section 5.08;
------------
(7) Notice of acquisition, bulk sale, merger or change in control. Prior
to any (i) proposed acquisition of control of or purchase of all or any
substantial part of the assets of any corporation or business entity by Borrower
or Astrotech; (ii) sale of all or any substantial part of the assets of the
Borrower or Astrotech; (iii) any merger by the Borrower or Astrotech with any
other entity whether or not Borrower or Astrotech is to survive the merger; or
(iv) change in ownership or voting control of 5% or more of the common stock of
Borrower or Astrotech entitled to vote; Borrower shall provide the Bank with not
less than thirty (30) days advance written notice.
(8) Notice of Business Interruption, etc. After the Completion Date
Borrower shall, within ten (10) Business Days of Borrower becoming aware of the
occurrence thereof, notify the Bank of the occurrence of any business
interruption (other than a planned seasonal shutdown), casualty or damage or
loss of property which could have a material adverse effect on the business of
39
the Borrower or Astrotech for any reason including, but not limited to, any
action of any foreign government.
(9) Borrower's Quarterly Report. Borrower shall submit to the Bank a
Borrower's Report (the "Borrower's Report") in the form attached hereto as
Exhibit "F" , beginning on March 31, 2002 and at least quarterly thereafter,
- ----------
within forty five (45) days of the end of the fiscal quarter reported, during
the term of this Agreement. Each such Borrower's Report shall be signed and
certified by the Chairman and/or President and/or Chief Financial officer of
Borrower and shall show, as of the last day of the quarter reported, Borrower'
calculations showing compliance with each of the financial covenants set forth
in Article VII of this Agreement, and shall state that, to the best of the
certifying officer's knowledge, no Default or Event of Default has occurred and
is continuing or, if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which is
proposed to be taken with respect thereto.
(10) General information. Such other information respecting the condition
or operations, financial or otherwise, of the Borrower or Astrotech or any
Subsidiary as the Bank may from time to time reasonably request.
ARTICLE VI
NEGATIVE COVENANTS
------------------
So long as any Note shall remain unpaid or the Bank shall have any
Commitment under this Agreement, the Borrower will not, without the prior
written consent of the Bank:
SECTION 6.01. Liens. Create, incur, assume, or suffer to exist, or permit
any Subsidiary to create, incur, assume, or suffer to exist, any Lien upon or
with respect to any Collateral now owned or hereafter acquired, except:
(1) Liens for taxes or assessments or other government charges or levies
if not yet due and payable or, if due and payable, if they are being contested
in good faith by appropriate proceedings and for which appropriate reserves are
maintained;
(2) Liens imposed by law, such as mechanics', materialmen's, landlords',
warehousemen's, and carriers' Liens, and other similar Liens, securing
obligations incurred in the ordinary course of business which are not past due
or which are being contested in good faith by appropriate proceedings and which
have been transferred to appropriate bond; and
(3) The Liens given to the Bank pursuant to the Loan Documents.
SECTION 6.02. Mergers, Etc. Merge or consolidate with, or sell, assign,
lease, or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or acquire any assets after the date of this
Agreement.
40
SECTION 6.03. Sale and Leaseback. Sell, transfer, or otherwise dispose
of, or permit any Subsidiary to sell, transfer, or otherwise dispose of, any
real or personal property to any person and thereafter directly or indirectly
lease back the same or similar property.
SECTION 6.04. Sale of Assets. The Borrower shall not sell, lease, assign,
transfer, or otherwise dispose of any of its now owned or hereafter acquired
assets.
SECTION 6.05. Investments. Make, or permit any Subsidiary to make, any
loan or advance to any Person, or purchase or otherwise acquire, or permit any
Subsidiary to purchase or otherwise acquire, any capital stock in any Person or
to make any investment or make any capital contribution to, or otherwise invest
in or acquire any interest in any Person.
SECTION 6.06. Transaction With Affiliate. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate including, without limitation,
the purchase, sale or exchange of property or the rendering of any service
Provided, however, that nothing in this Section 6.06 shall be deemed to prohibit
------------
transactions between Borrower and Astrotech under or relating to the MDC
Contract and the LMCLS Contract.
SECTION 6.07. No Subsidiary, Etc. Form or acquire any Subsidiary.
SECTION 6.08. Dividends, Distributions and other Payments. Borrower shall
not pay any dividend, distribution, management fee, salary increase in excess of
10% of the prior year's salary; loan repayment or any payment whatsoever to any
stockholder, member, investor, creditor, independent contractor or any Person or
entity whatsoever without the prior, written consent of the Bank.
SECTION 6.09. No Debt. Borrower shall not incur any Debt of any kind or
character whatsoever, whether direct or contingent, except for Indebtedness owed
to the Bank.
ARTICLE VII
FINANCIAL COVENANTS
-------------------
SECTION 7.01. Minimum Tangible Net Worth. The Borrower shall, as of March
31, 2002 and thereafter, maintain a combined (including Astrotech) minimum
Tangible Net Worth of $19,500,000.00. Thereafter, the minimum Tangible Net
Worth shall increase by a minimum of 90% of pre-tax income annually on a
cumulative basis, provided that a minimum combined Tangible Net Worth
requirement determined by such formula shall not thereafter decrease as a result
of any subsequent decrease in pre-tax income.
SECTION 7.02. Ratio of Total Liabilities to Tangible Net Worth. The
Borrower shall maintain at all times a combined (including Astrotech) ratio of
Total Liabilities divided by combined Tangible Net Worth of less than 1.75 to
1.0.
41
SECTION 7.03. Fixed Charge Coverage Ratio. The Borrower shall maintain at
all times a minimum combined (including Astrotech) Fixed Charge Coverage Ratio
of greater than 1.15 to 1.0. Compliance with this covenant shall be determined
quarterly on a rolling quarter basis for the fiscal quarter just ended and the
prior three fiscal quarters of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
SECTION 8.01. Events of Default. The occurrence of any of the following
events shall constitute an Event of Default:
(1) The Borrower should fail to pay the principal of, or interest on
either of the Notes, or any amount of fee payable to the Bank, as and when due
and payable;
(2) Any representation or warranty made by the Borrower to the Bank in
this Agreement or by a Guarantor in its Guaranty Agreement or which is contained
in any certificate, document, opinion, or financial or other statement furnished
at any time under or in connection with any Loan Document to which Borrower is a
party shall prove to have been false or incorrect in any material respect on or
as of the date made and the Bank believes in good faith that such false or
incorrect nature of the representation or warranty has rendered the Bank
insecure under the terms of this Agreement;
(3) The Borrower shall fail to make or to cause to be made the expenditure
of Owner's Funds for payment of Project Costs or the Borrower shall otherwise
fail to perform, or observe any term, covenant, or agreement not requiring the
payment of money contained in any Loan Document to which it is a party on its
part to be performed or observed which failure continues for a period of thirty
(30) days following receipt by Borrower of written notice from the Bank;
(4) Either the Borrower, or any Subsidiary or Affiliate or any Guarantor,
shall (a) fail to pay any indebtedness for borrowed money, or any interest or
premium thereon, when due or within any applicable grace period (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise), or
(b) fail to perform or observe (beyond any applicable grace period, if any) any
material term, covenant, or condition on its part to be performed or observed
under any agreement or instrument relating to any such indebtedness, when
required to be performed or observed, if the effect of such failure of payment
or to perform or observe is to accelerate, or to permit acceleration of the
maturity of such indebtedness; or any such indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity;
(5) The Borrower or any Guarantor (a) shall not, or shall be unable to, or
shall admit in writing its general inability to pay its debts as such debts
become due; or (b) shall make an assignment for the benefits of creditors,
petition or apply to any tribunal for the appointment of a
42
custodian, receiver, or trustee for it or a substantial part of its assets; or
(c) shall commence any proceeding under any bankruptcy, reorganization,
arrangements, readjustment of debt, dissolution, or liquidation law or statute
of any jurisdiction, whether now or hereafter in effect; or (d) shall have any
such petition or application filed or any such proceeding commenced against it
in which an order for relief is entered or adjudication or appointment is made
and which remains undismissed for a period of ninety (90) days or more; or (e)
by any act or omission shall indicate its consent to, approval of, or
acquiescence in any such petition, application, or proceeding, or order for
relief, or the appointment of a custodian, receiver, or trustee for all or any
substantial part of its properties, or (f) shall suffer any such custodianship,
receivership, or trusteeship to continue undischarged for a period of ninety
(90) days or more;
(6) Either McDonnell Douglas Corporation or Lockheed Martin Commercial
Launch Services, Inc. (a) shall not, or shall be unable to, or shall admit in
writing its general inability to pay its debts as such debts become due; or (b)
shall make an assignment for the benefits of creditors, petition or apply to any
tribunal for the appointment of a custodian, receiver, or trustee for it or a
substantial part of its assets; or (c) shall commence any proceeding under any
bankruptcy, reorganization, arrangements, readjustment of debt, dissolution, or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or (d) shall have any such petition or application filed or any such
proceeding commenced against it in which an order for relief is entered or
adjudication or appointment is made and which remains undismissed for a period
of ninety (90) days or more; or (e) by any act or omission shall indicate its
consent to, approval of, or acquiescence in any such petition, application, or
proceeding, or order for relief, or the appointment of a custodian, receiver, or
trustee for all or any substantial part of its properties, or (f) shall suffer
any such custodianship, receivership, or trusteeship to continue undischarged
for a period of ninety (90) days or more;
(7) One or more judgments, decrees, or orders for the payment of money
which total in excess of Five Hundred Thousand Dollars ($500,000.00) in the
aggregate, or such lower amount that creates a material adverse change in
Borrower's or any Guarantor's financial condition or ability to conduct
business, shall be rendered against either the Borrower or any Guarantor and
such judgments, decrees, or orders shall continue unsatisfied and in effect for
a period of sixty (60) consecutive days without being vacated, discharged,
satisfied, or stayed or bonded pending appeal;
(8) McDonnell Douglas Corporation defaults in any material respect under
the MDC Contract, or Lockheed Martin Commercial Launch Services, Inc. defaults
in any material respect under the LMCLS Contract, including without limitation a
default in payment of CLIN 1 Payments due to the Bank under the respective
contracts, and such default is not cured within any applicable cure period
provided in such contracts;
(9) Borrower defaults in any material respect under either the MDC
Contract or the LMCLS Contract and such default is not cured within any
applicable cure period provided in such contracts with the result, in either
case, that CLIN 1 Payments under either or both of the respective contracts
cease or are diminished to the point that CLIN 1 Payments shall be prospectively
insufficient to pay the principal and interest on the Loan at the times and in
the amounts required by
43
the Loan Documents;
(10) Either or both of the MDC Contract and the LMCLS Contract are
terminated in whole or in part by any party thereto for any reason whatsoever
with the result, in either case, that CLIN 1 Payments under either or both of
the respective contracts cease or are diminished to the point that CLIN 1
Payments shall be prospectively insufficient to pay the principal and interest
on the Loan at the times and in the amounts required by the Loan Documents;
(11) the Borrower or any Guarantor shall in any material respect fail to
comply (subject to such party's right in good faith to contest applicability or
enforcement) with any statute, rule, regulation, ordinance, order, or other law
or judicial decree regarding Borrower or any Guarantor or their respective
premises or assets which failure causes a material adverse change in Borrower's
or any Guarantor's financial condition or in Borrower's ability to operate the
Project or causes a material adverse decline in the value of any of the
Collateral;
(12) the Borrower defaults under any Other Agreements and such default
continues beyond any applicable cure period provided therein.
SECTION 8.02. Action if Bankruptcy. If any Event of Default described in
Section 8.01 (5) or (6) shall occur with respect to the Borrower or any
- -----------------------
Guarantor, then the Commitment (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of the Loan and all
other obligations of the Borrower under the Loan Documents shall automatically
be and become immediately due and payable, without notice or demand or
presentment and the Bank shall, subject to limitations imposed by laws relating
to bankruptcy, moratorium and equitable limitations on enforcement of creditors'
rights generally, pursue any and all rights of the Bank under the Loan Documents
including, without limitation foreclosure as to any and all pledged Collateral.
SECTION 8.03. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 8.01 (5) or (6) with
-----------------------
respect to the Borrower or any Guarantor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, then, and in any such event, the
Bank may: (1) declare its obligations under this Agreement to be terminated,
whereupon the same shall forthwith terminate; (2) declare the Notes, all
interest thereon, and all other amounts payable under this Agreement and the
Loan Documents to be forthwith due and payable, whereupon the Notes, all such
interest, and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by the Borrower; and (3) pursue any and all
rights of the Bank under the Loan Documents including, without limitation,
foreclosure as to any and all pledged Collateral.
SECTION 8.04. Additional Remedies of Bank. In addition to other remedies
available to the Bank in an Event of Default under this Agreement, the Bank
shall have the absolute right, at its option and election, to (1) cancel this
Agreement by written notice to the Borrower; (2) institute appropriate
proceedings to specifically enforce performance hereof; (3) withhold further
Advances hereunder; (4) take immediate possession of the Property and
Improvements as well as all other property to which title is held by Borrower as
is necessary to fully complete all on-site and off-site
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Improvements contemplated to be developed and/or constructed under this
Agreement; (5) appoint a receiver, as a matter of strict right without regard to
the solvency of Borrower, for the purpose of preserving the Project, preventing
waste, and to protect all rights accruing to Bank by virtue of this Agreement,
and expressly to make any and all further improvements, whether on-site or off-
site, as may be determined by Bank for the purpose of completing the
Improvements in accordance with this Agreement. All expenses incurred in
connection with the appointment of said receiver, or in protecting, preserving,
or improving the Property and the Improvements, shall be chargeable against the
Borrower and shall be enforced as a lien against the Collateral. Nothing herein
shall be construed to require notice or opportunity to cure in the event that
Borrower defaults in any obligation to pay money under the Notes (except as
provided under the Notes). The said remedies and rights of Bank shall be
cumulative and not exclusive, the Bank to be privileged and have the absolute
right to resort to any one or more, or all of the said remedies, neither to the
limited exclusion of the other in the event of any such default or breach of
said agreement or provisions by the Borrower. The Bank shall have the absolute
right to apply any balance of the Loan funds as a payment toward the Notes, and
no other party, whether contractor, materialmen, laborer, sub-contractor, or
supplier, shall have any interest in the Loan funds so applied and shall not
have any right to garnish, require or compel payment thereof toward discharge or
satisfaction of any claim or lien which they or any of them have or may have for
work performed or materials supplied. Any additional funds advanced by Bank to
complete construction of the Improvements shall be secured by the lien of said
Mortgage and shall be considered part of the Loan and shall be added to the
amounts due under the Notes.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of any Loan Document to which the Borrower is a party,
nor consent to any departure by the Borrower from any Loan Document to which it
is a party 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 given.
SECTION 9.02. Notices, Etc. All notices and other communications provided
for under this Agreement and under the other Loan Documents to which the
Borrower is a party shall be in writing (including fax communication) and mailed
or delivered, if to Borrower, at its address at 300 D Street SW, Suite 814,
Washington, DC 20024-4703, and if faxed to (202) 488-8241; and if to the Bank,
at its address at 420 North 20/th/ Street, Birmingham, AL 35203, Attn: Florida
Corporate Banking (St. Petersburg)(Fax No. 727-898-5319), with a copy to the
Bank at 150 Second Avenue North, Suite 400, St. Petersburg, FL 33701; or, as to
each party, at such other address or fax number as shall be designated by such
party in a written notice to the other party complying as to delivery with the
terms of this Section 9.02. All such notices and communications shall, when
------------
faxed, be effective upon machine confirmation of receipt and, if mailed, when
deposited in the mails addressed as aforesaid be effective upon receipt or if
sent by certified mail, return receipt requested, then upon receipt or
presentment and refusal of delivery.
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SECTION 9.03. No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right, power, or remedy under any Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any rights under any Loan Documents preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
the Loan Documents are cumulative and not exclusive of any remedies provided by
law.
SECTION 9.04. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of their rights under any Loan Document without the prior written consent of the
Bank.
SECTION 9.05. Costs, Expenses, and Taxes. The Borrower agree to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, filing, and recording of any of the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Bank, with respect thereto and with respect to advising the Bank as to its
rights and responsibilities under any of the Loan Documents, and all costs and
expenses, if any, in connection with the enforcement of any of the Loan
Documents after the occurrence of an Event of Default or if the Bank determines
in good faith that an Event of Default is imminent. In addition, the Borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of any
of the Loan Documents and the other documents to be delivered under any such
Loan Documents, and agrees to save the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
SECTION 9.06. Governing Law. This Agreement and the Note and all Loan
Documents shall be governed by, and construed in accordance with, the laws of
the State of Florida.
SECTION 9.07. Severability of Provisions. Any provision of this Agreement
or of any Loan Document which is deemed by a court of competent jurisdiction to
be 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 of this Agreement
or of such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction. If feasible, any such offending provision
shall be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified it shall be
stricken and all other provisions of this Agreement or the applicable Loan
Document shall in all other respects remain valid and enforceable.
SECTION 9.08. Headings. Article and Section headings in the Loan Documents
are included in such Loan Documents for the convenience of reference only and
shall not constitute a part of the applicable Loan Documents for any other
purpose.
SECTION 9.09. Waiver of Jury Trial. As an important inducement to the Bank
to enter this Agreement, Borrower and Bank each waive the right to trial by jury
in any action arising under or in any way related to this Agreement.
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SECTION 9.10. Transfer of Interest. Borrower agree and consent to Bank's
sale or transfer, whether now or later, of one or more participation interests
in the Loan, to one or more purchasers, whether related or unrelated to Bank.
Bank may, subject to reasonable and customary confidentiality provisions,
provide, without any limitation whatsoever, to any one or more purchasers, or
potential purchasers, any information or knowledge Bank may have about Borrower
or about any other matter relating to the Loan. Borrower additionally waive any
and all notices of sale of participation interests as well as all notices of any
repurchase of such participation interests. Borrower also agree that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under any agreement governing the sale of such participation interests.
Borrower further waive all rights of offset or counterclaim that it may have now
or later against Bank or against any purchaser of such a participation interest
and unconditionally agree that either Bank or such purchaser may enforce
Borrower' obligations under the Loan Documents irrespective of failure or
insolvency of any holder of any interest in the Loan. Borrower further agree
that the purchaser of any such participation interest may enforce its interest
irrespective of any personal claims or defenses that Borrower may have against
the Bank.
SECTION 9.11. Time Constraint. Time is of the essence of this Agreement.
SECTION 9.12. No Partnership. Nothing in this Agreement shall be
construed to constitute the creation of a partnership or joint venture between
Bank and Borrower or any contractor. Except as specifically provided herein,
the Bank is not an agent or representative of Borrower. This Agreement does not
create a contractual relationship with and shall not be construed to benefit or
bind Bank in any way or create any contractual duties by Bank to any contractor
or subcontractor, materialman, laborer or any other Person except Borrower.
SECTION 9.13. Final Agreement. THIS WRITTEN CREDIT AGREEMENT AND THE
OTHER WRITTEN LOAN DOCUMENTS REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT AMONG
THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. ANY INCONSISTENCIES BETWEEN THIS
AGREEMENT AND ANY OF THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY THIS
AGREEMENT. ANY PROVISION IN ANY OTHER LOAN DOCUMENTS WHICH SET SPECIFIC
REQUIREMENTS WHICH ARE MORE STRINGENT THAN THOSE CONTAINED HEREIN, HOWEVER,
SHALL SUPERSEDE THE LESS BURDENSOME PROVISION OF THIS AGREEMENT.
SECTION 9.14. Stay Waiver. Borrower represents and warrants to the Bank,
and agrees not to take any contrary position in any subsequent bankruptcy
proceedings, as follows: (i) the Real Property Collateral is not now and never
will be necessary to any plan of reorganization of any type; (ii) Borrower is a
single asset entity, such asset being the Real Property Collateral; (iii)
Borrower has no creditors other than the Bank; (iv) any default hereunder will
likely result solely from the unexpected inability of cash flow from the Real
Property Collateral to make payments required by
47
the Loan Documents; (v) the Real Property Collateral is subject to foreclosure
or other enforcement of the Bank's rights under the Loan Documents; and (vi) any
subsequent bankruptcy filing by Borrower prior to the completion of the Bank's
foreclosure in the event of a Default hereunder will be in bad faith for the
sole purpose of delaying and frustrating the legitimate efforts of the Bank to
enforce its rights. In consideration of the premises, and of the making of the
Loans by the Bank to the Borrower, the Borrower further acknowledges and agrees
that:
(A) The Borrower shall not, in any manner, interfere with, delay or
otherwise contest the exercise by the Bank of any of its rights and
remedies except in the event, and to the extent, the Borrower has any
valid defenses or counterclaims;
(B) Notwithstanding any valid defenses or counterclaims of the Borrower,
it will not take any action in contest of any proceeding relating to
the appointment of receivers for all or any part of the Project, the
appointment of the Bank or its designee as a mortgagee or creditor in
possession of all or any part of the Project;
(C) Borrower shall execute and deliver any consent, affidavit, certificate
or other instrument determined by the Bank to be reasonably necessary
or convenient for the expedited:
(1) appointment of a receiver or appointment of the Bank or its
designee as a mortgagee or creditor in possession notwithstanding
any valid defenses or counterclaims of the Borrower; or
(2) foreclosure, sale or other exercise of the Bank's rights and
remedies except, in the case of this subsection (2), to the
extent the same would prejudice any valid defenses and
counterclaims available to the Borrower;
(D) Notwithstanding any valid defenses or counterclaims of the Borrower,
it will not contest or take any action against the appointment of a
receiver, or continuation of appointment of a receiver, for all or any
portion of the Project, the appointment of the Bank or its designee as
a mortgagee or creditor in possession of all or any portion of the
Project , from and after the commencement of any voluntary or
involuntary bankruptcy or similar proceedings;
(E) Borrower will not bring or institute, or permit any other person to
bring or institute by or on behalf of, or at the request of or
instigation of, or with the inducement of Borrower, any Affiliate of
Borrower or any Guarantor any bankruptcy proceeding of Borrower; and
(F) In the event any bankruptcy proceeding of Borrower is commenced and is
not dismissed, the Borrower hereby expressly agrees that "cause" for
termination of the automatic stay exists and that the Bank shall be
entitled, and Borrower shall consent, to relief from the automatic
stay imposed by Section 362 of the Bankruptcy Code and that,
immediately upon the request of the Bank, Borrower shall take all
actions
48
necessary to afford such relief to Bank, including the execution and
filing of such documents as Bank may deem necessary or appropriate to
obtain such relief.
SECTION 9.15. Choice of Law and Exclusive Venue for Actions. THE VALIDITY
OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE
RIGHTS OF THE BANK AND THE BORROWER, SHALL BE DETERMINED UNDER, GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND DETERMINED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN THE COUNTY OF HILLSBOROUGH, STATE OF FLORIDA.
BORROWER FURTHER AGREES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THAT THE SOLE
AND EXCLUSIVE VENUE FOR ANY BANKRUPTCY PROCEEDING OF BORROWER, WHETHER
INSTITUTED BY BORROWER, AT THE REQUEST OF BORROWER OR BY ANY AFFILIATE OF
BORROWER, SHALL BE IN THE UNITED STATES BANKRUPTCY COURT IN AND FOR THE MIDDLE
DISTRICT OF FLORIDA, TAMPA DIVISION. BORROWER IRREVOCABLY CONSENTS TO TRANSFER
OF ANY BANKRUPTCY PROCEEDING BY OR OF BORROWER COMMENCED IN ANY OTHER VENUE TO
THE MIDDLE DISTRICT OF FLORIDA AND AGREES THAT THE BANK SHALL BE ENTITLED TO
SUCH TRANSFER REGARDLESS OF ANY OBJECTION THERETO BY BORROWER, ANY AFFILIATE OF
BORROWER OR ANY OTHER CREDITOR. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS OR TO OBJECT TO VENUE IN THE MIDDLE DISTRICT OF FLORIDA.
- ---------
SECTION 9.16. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Credit Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
SOUTHTRUST BANK, an ASTROTECH FLORIDA
Alabama Banking corporation HOLDINGS, INC.
By: /s/Timothy Mann By: /s/Julia Pulzone
----------------------------- ---------------------------
Name: Timothy Mann Name: Julia Pulzone
Title: GVP Title: Chief Financial Officer
49