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EXHIBIT 10.49
LETTER OF CREDIT
Irrevocable Letter of
Credit No. SM410694C
Dated as of November 5, 1999
Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attention: Commercial Loan Department
Ladies and Gentlemen:
FIRST UNION NATIONAL BANK (sometimes hereinafter referred to as the
"Bank") hereby establishes in your favor for the account of ADAM WUEST
CORPORATION, a Delaware corporation (the "Company") (as successor in interest to
Adam Wuest, Inc. and Adam Wuest Realty, Inc., both being Ohio corporations) its
Irrevocable Letter of Credit No. SM410694C (the "Letter of Credit") in a maximum
amount of up to Two Million Two Hundred Eighty-Four Thousand Four Hundred
Twenty-Five Dollars ($2,284,425) (as more fully described below) effective
immediately and expiring at 5:00 p.m., Cincinnati, Ohio time, on September 30,
2001 (the "Expiration Date") or if the Expiration Date is not a business day (as
hereinafter defined) on the next succeeding business day, unless terminated
earlier in accordance with the provisions hereof.
This Letter of Credit is being issued in connection with Fifth Third
Bank Letter of Credit No. 8383 (the "Bond L/C") issued by you to Fifth Third
Bank, as trustee (the "Trustee") in connection with the Trust Indenture (the
"Indenture") between the County of Hamilton, Ohio (the "Issuer") and the Trustee
whereby the Issuer authorized, issued and sold certain County of Hamilton, Ohio
Economic Development Revenue Refunding Bonds, Series 1994 (Adam Wuest, Inc.
Project) (the "Bonds") in the aggregate principal amount of $2,980,000 (of which
$2,145,000 is currently outstanding), the payment of which is secured by, among
other things, the Bond L/C. All capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Indenture or, with respect to
Principal Drawings or Interest Drawings, in the Bond L/C.
As used in this Letter of Credit, the term "business day" shall mean
any day of the year, other than a Saturday or a Sunday, on which banks located
in the cities in which the principal corporate trust office of the Trustee
pursuant to the Indenture and the principal office of the Bank are located are
not required or authorized by law to remain closed and on which The New York
Stock Exchange is not closed.
You are hereby irrevocably authorized to draw on us, for the account of
the Company, in accordance with the terms and conditions hereof and subject to
increases and reductions in amounts
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as hereinafter set forth, an aggregate amount not exceeding Two Million Two
Hundred Eighty-Four Thousand Four Hundred Twenty-Five Dollars ($2,284,425) (the
"Stated Amount"), of which (A) an aggregate amount not exceeding Two Million One
Hundred Forty-Five Thousand Dollars ($2,145,000) may be drawn upon for payment
of the unpaid Principal Drawings under the Bond L/C, plus (B) an aggregate
amount not exceeding One Hundred Thirty-Nine Thousand Four Hundred Twenty-Five
Dollars ($139,425) may be drawn upon for payment of Interest Drawings under the
Bond L/C.
Funds under this Letter of Credit are only available to you against
your sight draft(s) drawn on us, substantially in the form of Exhibit 1 hereto,
stating on their face: "Drawn under First Union National Bank Letter of Credit
No. SM410694C" and upon your presenting to us one or more of the following
written certificates:
(A) If the drawing is being made for payment of a Principal
Drawing, a written certificate signed by you in the form of Exhibit 2 attached
hereto appropriately completed (a "Principal Drawing"); and
(B) If the drawing is being made for a payment of an Interest
Drawing, a written certificate signed by you in the form of Exhibit 3 attached
hereto appropriately completed (an "Interest Drawing").
Presentation of such draft(s) and certificate(s) shall be made on a
business day at our office located at 8739 Research Drive - URP4, Charlotte, NC
28262 (Attention: Standby Letter of Credit Department) or any other place which
may be designated by us by written notice delivered to you. If we receive any of
your drafts drawn hereunder at such office, all in strict conformity with the
terms and conditions of this Letter of Credit, on or prior to the termination
hereof, we will honor the same and make payment hereunder. If a draft and
certificate are presented to us as aforesaid by 11:00 a.m., Cincinnati, Ohio
time, payment will be made, in immediately available funds by 4:00 p.m., on the
next business day following presentment, otherwise, payment will be made, in
immediately available funds, by 4:00 p.m. on the second business day following
presentment. If requested by you, payment may be made by deposit of such funds
into a designated bank account that you maintain.
Upon receipt from you of a written certificate signed by you in the
form of Exhibit 4 attached hereto appropriately completed, stating that a
payment of principal on the Bonds has been made from funds other than amounts
drawn under the Bond L/C, the Stated Amount of this Letter of Credit shall be
reduced by the amount of the reduction set forth in such certificate. Upon
payment of a drawing hereunder, the Stated Amount of this Letter of Credit shall
be reduced by the amount of such payment except that in connection with any
Interest Drawing, if you have not received from us within ten (10) business days
from the date of your drawing a notice from us in the form of the certificate
attached hereto as Exhibit 5 appropriately completed, indicating we have not
reinstated the Letter of Credit for all amounts drawn under such Interest
Drawing, your right to draw on us by an Interest Drawing shall be automatically
reinstated in such amount and this automatic
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reinstatement of your right to make an Interest Drawing shall be applicable to
successive Interest Drawings so long as this Letter of Credit shall have not
terminated as set forth below.
Only you or your transferee pursuant to the terms of this Letter of
Credit, may make a drawing under this Letter of Credit. Upon the payment to you
of the amount specified in a draft drawn hereunder, we will be fully discharged
of our obligation under this Letter of Credit with respect to such draft and
shall not thereafter be obligated to make any further payments under this Letter
of Credit in respect of such draft to you or any other person who may have made
to you or makes to you a demand for payment of principal of or interest on any
Bond. By paying to you an amount demanded in such draft we make no
representation as to the correctness of the amount demanded in such draft.
This Letter of Credit shall automatically terminate without any action
or notice and shall be delivered to us for cancellation upon the earliest of:
(i) the honoring by us of the final drawing available to be made hereunder; (ii)
our receipt of a written certificate signed by your officer in the form of
Exhibit 6 hereto appropriately completed, stating that: (a) no Bonds are
Outstanding within the meaning of the Indenture; and (b) such officer is duly
authorized to sign such certificate on behalf of you; (iii) our receipt of a
written certificate signed by your officer in the form of Exhibit 7 hereto
appropriately completed, stating that: (a) an Alternate Letter of Credit (as
defined in the Indenture) has been accepted by the Trustee, and (b) such officer
is duly authorized to sign such certificate on behalf of you; or, (iv) the
occurrence of the Expiration Date.
This Letter of Credit is subject to the "Uniform Customs and Practice
for Documentary Credits, International Chamber of Commerce" (the "Uniform
Customs") in effect on the date of issuance or as may be revised from time to
time thereafter. This Letter of Credit shall be deemed to be made under the laws
of the State of North Carolina, and shall, as to matters not governed by the
Uniform Customs, be governed by and construed in accordance with the laws of the
State of North Carolina.
Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to us at 8739 Research Drive - URP4, Charlotte,
NC 28262 (Attention: Standby Letter of Credit Department), specifically
referring to the number of this Letter of Credit.
Notwithstanding anything in the Uniform Customs to the contrary, this
Letter of Credit is transferable in its entirety to any transferee who has
succeeded you. Each letter of credit issued upon any such transfer may be
successively transferred. Transfer of the available balance under this Letter of
Credit to such transferee shall be effected by the presentation to us of this
Letter of Credit accompanied by a certificate substantially in the form of
Exhibit 8 attached hereto. Following such presentation, and as soon as this
original Letter of Credit is returned to us and we have been paid our customary
transfer fee, we shall forthwith transfer the same to your transferee or, if so
requested by your transferee, issue an irrevocable letter of credit to your
transferee with provisions therein consistent with those of this Letter of
Credit.
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This Letter of Credit sets forth in full our undertaking and shall not
in any way be modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein (including, without
limitation, the Bonds and the Indenture), except only the certificate(s) and the
draft(s) referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except for
such certificate(s) and such draft(s).
Very truly yours,
FIRST UNION NATIONAL BANK
By:_____________________________
Its:____________________________
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EXHIBIT 1
SIGHT DRAFT
________,
FOR VALUE RECEIVED
Pay on Demand to: ______________________________________________ U.S.
___________________________________________ Dollars (U.S. $__________)
Charge to account of Adam Wuest Corporation
Drawn under First Union National Bank Letter of Credit No. ____.
TO: First Union National Bank
Attn: Standby Letter of Credit Department
8739 Research Drive - URP4
Charlotte, NC 28262
Phone: (704) 593-7892
Fax: (704) 593-7937
The sum drawn does not exceed the difference between (I) the maximum
aggregate amount to be drawn under the Letter of Credit less (II) the aggregate
amount of all previous drawings made under the Letter of Credit for which First
Union National Bank has not reinstated, as certified to us in any Certificate of
Reinstatement or Nonreinstatement heretofore delivered by you.
FIFTH THIRD BANK
By: _______________________
Its: ______________________
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EXHIBIT 2
CERTIFICATE FOR "PRINCIPAL DRAWING"
The undersigned, a duly authorized officer of Fifth Third Bank (the
"Beneficiary"), hereby certifies to First Union National Bank (the "Bank") with
reference to the Bank's Irrevocable Letter of Credit No. _____ (the "Letter of
Credit", the capitalized terms defined therein and not defined herein being used
as therein defined) issued by the Bank in favor of the Beneficiary that:
(1) A Principal Drawing of $___________ has either been paid
or is due and payable on _____________ under the Bond L/C.
(2) This is a (partial) (final) drawing.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered
this certificate as of this ____ day of _________, ____.
FIFTH THIRD BANK
By: _______________________
Its:_______________________
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EXHIBIT 3
CERTIFICATE FOR "INTEREST DRAWING"
The undersigned, a duly authorized officer of Fifth Third Bank
(the "Beneficiary"), hereby certifies to First Union National Bank (the "Bank")
with reference to the Bank's Irrevocable Letter of Credit No. ____ (the "Letter
of Credit," the capitalized terms defined therein and not defined herein being
used as therein defined) issued by the Bank in favor of the Beneficiary as
follows:
An Interest Drawing in the amount of $__________ has been paid
or is due and payable on ____________ under the Bond L/C.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered
this certificate as of the ______ day of _________, ____.
FIFTH THIRD BANK
By:________________________
Its:_______________________
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EXHIBIT 4
CERTIFICATE OF REDUCTION IN STATED AMOUNT
First Union National Bank
Attn: Standby Letter of Credit Department
8739 Research Drive - URP4
Charlotte, NC 28262
Re: Irrevocable Letter of Credit No. ____
Ladies and Gentlemen:
The undersigned, a duly authorized officer of Fifth Third Bank (the
"Beneficiary"), hereby certifies to First Union National Bank (the "Bank") with
reference to Irrevocable Letter of Credit No. ____ (the "Letter of Credit," the
capitalized terms defined therein and not defined herein being used as therein
defined) issued by the Bank in favor of the Beneficiary that:
(1) On the date hereof, a payment or a credit towards payment of
principal on the Bonds in the amount of $_____________ has been made from funds
other than amounts drawn under the Bond L/C.
(2) In accordance with the Letter of Credit, upon your receipt of this
certificate, the Stated Amount of the Letter of Credit is reduced by
$____________, which amount equals the sum of: (i) the amount of principal so
paid, plus (ii) 195 days' interest on such amount of principal at the rate of
12% per annum. You may adjust your records accordingly.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered this
certificate as of the _____ day of ___________,____.
FIFTH THIRD BANK
By:________________________
Its:_______________________
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EXHIBIT 5
CERTIFICATE OF NONREINSTATEMENT
OF AMOUNTS AVAILABLE UNDER IRREVOCABLE
LETTER OF CREDIT NO. ____
The undersigned, a duly authorized officer of First Union National Bank
("Bank"), hereby certifies to the Trustee under the Trust Indenture dated as of
February 1, 1994 between the County of Hamilton, Ohio (the "Issuer") and the
Trustee with reference to Irrevocable Letter of Credit No. ____ (the "Letter of
Credit") issued by the Bank in favor of Fifth Third Bank that the amount drawn
by Fifth Third Bank pursuant to its ___________ Drawing dated as of ____________
has not been reinstated because the Bank has not been reimbursed for such
Drawing.
Except as herein expressly set forth, all other terms and conditions of
the Letter of Credit remain unchanged.
IN WITNESS WHEREOF, the Bank has executed and delivered this
certificate this ____ day of ___________, _____.
FIRST UNION NATIONAL BANK
By: _______________________
Its:_______________________
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EXHIBIT 6
CERTIFICATE THAT NO BONDS ARE OUTSTANDING
First Union National Bank
Attn: Standby Letter of Credit Department
8739 Research Drive - URP4
Charlotte, NC 28262
Re: Irrevocable Letter of Credit No. ____
Ladies and Gentlemen:
The undersigned, a duly authorized officer of Fifth Third Bank (the
"Beneficiary") hereby certifies to First Union National Bank (the "Bank") with
reference to the Bank's Irrevocable Letter of Credit No. ____ (the "Letter of
Credit," the capitalized terms defined therein and not defined herein being used
as therein defined) issued by the Bank in favor of the Beneficiary that:
(1) No Bonds are outstanding within the meaning of the Indenture.
(2) The undersigned officer is duly authorized to sign this certificate
on behalf of the Beneficiary.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered this
certificate as of the _____ day of _________, ____.
FIFTH THIRD BANK
By:________________________
Its:_______________________
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EXHIBIT 7
CERTIFICATE OF ACCEPTANCE OF ALTERNATE LETTER OF CREDIT
First Union National Bank
Attn: Standby Letter of Credit Department
8739 Research Drive - URP4
Charlotte, NC 28262
Re: Irrevocable Letter of Credit No. ____
Ladies and Gentlemen:
The undersigned, a duly authorized officer of Fifth Third Bank
(the "Beneficiary"), hereby certifies to First Union National Bank (the "Bank")
with reference to the Bank's Irrevocable Letter of Credit No. ____ (the "Letter
of Credit," the capitalized terms defined therein and not defined herein being
used as therein defined) issued by the Bank in favor of the Beneficiary that:
(1) An Alternate Letter of Credit (as defined in the
Indenture) has been accepted by the Trustee.
(2) The undersigned officer is duly authorized to sign this
certificate on behalf of the Beneficiary.
(3) In accordance with the Letter of Credit, upon your receipt
of this Certificate, the Letter of Credit is hereby terminated.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered
this certificate as of the _____ day of _________, ____.
FIFTH THIRD BANK
By:______________________________
Its:______________________________
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EXHIBIT 8
First Union National Bank
Attn: Standby Letter of Credit Department
8739 Research Drive - URP4
Charlotte, NC 28262
Re: Irrevocable Letter of Credit No. ____
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in
and to such Letter of Credit are transferred to the transferee who shall have
sole rights as beneficiary thereof, including sole rights relating to any
amendments, whether in creases or extensions or other amendments and whether now
existing or hereafter made. All amendments are to be advised directly to the
transferee without necessity of any consent of or notice to the undersigned
beneficiary.
If advise of such Letter of Credit is returned herewith, along
with your customary transfer fee, and we ask you to endorse the transfer on the
reverse thereof and forward it directly to the transferee with your customary
notice of transfer.
Very truly yours,
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Signature of Beneficiary
SIGNATURE AUTHENTICATED
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(Bank)
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(Authorized Signature)
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