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EXHIBIT 10.3
[CREDIT LYONNAIS LOGO]
U.S. BRANCHES
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
December 23, 1996
SunTrust Bank, Central Florida,
National Association, as Trustee
under Indenture Dated As of
March 28, 1996
225 E. Robinson Street
Suite 250
Orlando, FL 32801
Attn: Ms. Lisa George
Ladies and Gentlemen.
We hereby establish In your favor, as Trustee under Indenture dated as of
March 28, 1996 (the "Indenture"), our irrevocable transferable Letter of Credit
No. 9612171S671 (the "Letter of Credit") in the amount not to exceed
$3,262,500.00, for use as a replacement for a reserve fund established in
connection with 10% Subordinated Notes issued by South Seas Properties Company
Limited Partnership ("SSPC") due April 15, 2003 (the "Notes Maturity Date").
This Letter of Credit is effective immediately and, unless extended in
accordance with the terms hereof, expires on the earlier of: (i) the first
anniversary of the date hereof; (ii) upon the delivery to us of a notification,
executed by you that the Indenture has been terminated as provided in Section
10.4 of the Indenture; and (iii) September 24, 2001 (such earlier date is,
hereafter, the "Termination Date").
We hereby authorize you to draw, from time to time hereunder, prior to the
Termination Date and in accordance with the terms hereof, sums not exceeding,
in the aggregate, $3,262,500.00. Funds under this Letter of Credit may be drawn
against your draft stating on its face "Drawn under Credit Lyonnais New York
Branch Letter of Credit #9612171S671," when such draft is accompanied by
certifications signed by you in the forms attached hereto as Exhibit "A" and
Exhibit "B" and made a part hereof, appropriately completed. Each draft and
certification shall be dated the date of presentation, which shall be made at
our offices located at 1301 Avenue of the Americas, New York, New York 10019,
Attention: Letter of Credit Department. The amount set forth in your draft
shall not exceed the amount set forth in the accompanying certification. The
amount of this Letter of Credit shall be reduced automatically upon our
honoring any draft drawn hereunder by the amount of such draft.
If all of (A), (B), and (C) am true:
- - (A) we shall not have received your notification pursuant to clause (ii) in
paragraph 1;
- - (B) the date computed pursuant to clause (i) of paragraph 1 (as same may have
been previously extended) shall be earlier then the date in clause (iii)
of paragraph 1; and
- - (C) we shall not have advised you in writing at the address set forth above
at least thirty (30) days prior to the date computed pursuant to clause
(i) of paragraph 1 (as some may
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have been previously extended) that the date computed pursuant to clause
(i) of paragraph 1 shall be extended to a date which is the earlier of (x)
one year from the date to which clause (i) of paragraph 1 shall have been
extended and (y) the date in clause (iii) of paragraph 1,
then you may draw on us in the last 30 days prior to the Termination Date by
presenting your draft stating "Drawn under Credit Lyonnais New York Branch
Letter of Credit No. 9612171S671" for up to the undrawn amount hereof when such
draft shall be accompanied by your statement that this amount is drawn because
advice of extension of the Termination Date in accordance with paragraph 3 of
the Letter of Credit has not been received and less than 30 days remain until
the Termination Date of the Letter of Credit.
This Letter of Credit is subject to the Uniform Customs and Practices for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs"). This Letter of Credit shall, as
to matters not governed by the Uniform Customs, be governed by the laws of the
State of New York, including, without limitation, the Uniform Commercial Code
in effect in such state.
This Letter of Credit is only transferable (i) by you; (ii) in whole; and
(iii) to a transferee which is a successor Trustee under the Indenture which
successor beneficiary is identified as such in a certification signed by you
substantially in form of Exhibit "C" hereto and deliver to us together with the
original Letter of Credit.
This Letter of Credit sets forth in full our undertaking and such
undertaking shall not in any way, be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein
(including without limitation, the Indenture or the Subordinated Notes), except
only the drafts and certificates referenced herein; and any such reference
shall not be deemed to incorporate herein by reference any document, instrument
or agreement except for such drafts and certificates. All documents pertaining
to the Letter of Credit shall bear the letter of Credit number as reference
herein.
Very truly yours,
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Cathy Wong
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Name: Cathy Wong
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Title: Assistant Treasurer
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[CREDIT LYONNAIS LOGO]
EXHIBIT "A"
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CERTIFICATION OF TRUSTEE
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Date:
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Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
ATTN: Letter of Credit Department
Re: Certification of SunTrust Bank, Central Florida, National Association, as
Trustee Under Indenture Dated as of March 28, 1996 ("Indenture"),
Regarding 10% Subordinated Notes issued by South Seas Properties Company
Limited Partnership ("SSPC") due April 15, 2003
Ladies and Gentlemen:
Concurrently herewith we have tendered to you our draft to draw sums under
the Letter of Credit No. 9612171S671 ("Letter of Credit") issued by you in our
favor. This Certification is required in order to draw funds under the Letter
of Credit. We certify that capitalized terms herein which are not otherwise
defined have the meanings set forth in the Indenture.
We hereby certify to you that as of the date hereof, there has been no
occurrence of the events or conditions listed in Section 10.4(g)(ii) or (iii) of
the Indenture. Further, we hereby certify to you and SSPC that, as of the (check
one):
Interest Payment Date
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Redemption Date
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Stated Maturity Date of the Notes
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which occurred on_______________the amount by which the payment due on such
date with respect to the Notes or the Outstanding Notes, as applicable, exceeds
the amount on deposit with the Paying Agent on such date that is available for
such payment by $______________ (the "Deficit") and pursuant to (check one):
Section 10.4(a)(2) of the Indenture
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Section 10.4(a)(3) of the Indenture
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Section 10.4(a)(4) of the Indenture
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we have the right to withdraw the amount of the Deficit from the Reserve Fund in
order to make payment of sums due to the Noteholders, as required by the
terms of the Indenture.
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[CREDIT LYONNAIS LOGO]
EXHIBIT "B"
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AUTHORIZATION OF DRAW UNDER LETTER OF CREDIT NO. 9612171S671
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This certification is to be presented to the issuer of the Letter of Credit
simultaneously with a request for a draw thereunder
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attn: Letter of Credit Department
Re: Certfication of SunTrust Bank, Central Florida, National Association,
as Trustee Under Indenture Dated as of March 28,1996 ("Indenture"),
Regarding 10% Subordinated Notes issued by South Seas Properties
Company Limited Partnership ("SSPC") due April 15, 2003
Ladies and Gentlemen:
We hereby certify to you that as of this date of any request for a draw under
the Letter of Credit, there exists no circumstance under Section 13.2 of the
Indenture that prohibits the payment on account of the principal of or interest
and other sums on, or other indebtedness evidenced by, the Notes.
You may rely upon this Certificate as evidence of our authority to make
such representations under the Indenture.
Very truly yours,
SunTrust Bank, Central Florida, National
Association, as Trustee under Indenture dated as
of March 28, 1996
By:
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Name:
------------------------
Title:
------------------------
Date:
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[CREDIT LYONNAIS LOGO]
You may rely upon this Certificate as evidence of our authority to draw
the sums described herein under the Letter of Credit.
Very truly yours,
SunTrust Bank, Central Florida, National
Association, as Trustee under Indenture dated as
of March 28, 1996
By:
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Name:
------------------------
Title:
------------------------
Date:
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[CREDIT LYONNAIS LOGO]
EXHIBIT "C"
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CERTIFICATION OF LETTER OF CREDIT TRANSFER
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Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
ATTN: Letter of Credit Department
SSPC
Re: Certification of SunTrust Bank, Central Florida, National Association, as
Trustee Under Indenture Dated as of March 28, 1996 ("Indenture"),
Regarding 10% Subordinated Notes issued by South Seas Properties Company
Limited Partnership ("SSPC") due April 15, 2003
Ladies and Gentlemen:
We hereby certify to you that ___________a_________("Successor Trustee"), has
been duly named as Indenture Trustee under the Indenture dated as of March 28,
1996 (the "Indenture"), and that Successor Trustee is now a successor Trustee
under the Indenture.
In consequences of such assignment and assumption, we hereby direct that you
authorize and obtain the amendment of that Letter of Credit No. 9612171S671
dated December 23, 1996 issued by Credit Lyonnais for our benefit and confirmed
by Den Danske Bank, to change the name of the beneficiary from "SunTrust Bank,
Central Florida, National Association" to "____________".
You may rely upon this Certificate as evidence for our authority to authorize
the amendment of the Letter of Credit.
Very truly yours,
SunTrust Bank, Central Florida, National
Association, as Trustee under Indenture dated as
of March 28, 1996
By:
-----------------------------
Name:
------------------------
Title:
------------------------
Date:
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[DEN DANSKE BANK LETTERHEAD]
Confirmation no. 5610-96NY to Irrevocable Transferrable Letter of Credit
- -----------------------------------------------------------------------
No 9612171S671
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SunTrust Bank, Central Florida
National Association, as Trustee
under Indenture Dated As of
March 28, 1996 ("Indenture")
225 E. Robinson Street
Suite 250
Orlando, Florida 32801
Attn: Ms. Lisa George
December 23, 1996
We, Den Danske Bank Aktienelskab ("Confirming Bank"), hereby confirm the
enclosed Irrevocable Transferrable letter of Credit No. 9612171S671 (the
"Letter of Credit") issued by Credit Lyonnais, New York Branch ("Issuing Bank")
on December 23, 1996 in favor of the aforesaid addressee ("Benificiary"), as
Trustee under Indenture dated as of March 28, 1996 (the "Indenture"). This
Confirmation No. 5610-96NY ("Confirmation") is effective immediately and allows
for drawings up to USD 3,262,500.00 (Three Million Two Hundred Sixty Two
Thousand Five Hundred and 00/100 United States Dollars). This Confirmation is
issued presentable and payable at the offices of the Confirming Bank's New York
Branch at 280 Park Avenue, New York, NY 10017, Attention: Letter of Credit
Department, or at any other office in New York, New York which may be
designated by the Confirming Bank by written notice delivered to you at the
above address. This Confirmation expires the earlier of: (i) the first
anniversary of the date hereof; (ii) upon delivery to us or the Issuing Bank of
a notification, executed by you that the Indenture has been terminated as
provided in Section 10.4 of the Indenture, and (iii) September 24, 2001 (such
earlier date is, hereafter, the "Termination Date").
We hereby undertake to promptly honor your sight draft(s) drawn as specified in
the Letter of Credit and presented at our office specified in paragraph one on
or before the Termination Date. Each Draft must also be marked "Drawn under Den
Danske Bank New York Branch Confirmation No. 5610-96NY", and be accompanied by
certifications signed by you in the forms (Exhibit "A" and Exhibit "B") attached
to the Letter of Credit and as require by the Issuing Bank. Each draft and
certification shall be dated the date of the presentation, which shall be made
at the office of the Confirming Bank. The amount set forth in your draft shall
not exceed the amount set forth in the accompanying certification (Exhibit "A").
The amount of this Confirmation shall be reduced automatically upon our honoring
any draft drawn hereunder, by the amount of such draft.
[BLANK SPACE LEFT INTENTIONALLY]
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DEN DANSKE BANK
CONFIRMATION NO. 5610-96NY OF IRREVOCABLE TRANSFERRABLE
- -------------------------------------------------------
LETTER OF CREDIT NO. 9612171S671
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DECEMBER 23, 1996
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PAGE 2
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If all of (A), (B), and (C) are true:
(A) Neither we nor shall the Issuing bank have received your notification
pursuant to clause (ii) in paragraph one;
(B) the date computed pursuant to clause (i) of paragraph one (as same may been
extended) shall be earlier than the date in clause (iii) of paragraph one;
and
(C) we shall not have advised you in writing at the address set forth above at
least thirty (30) days prior to the date computed pursuant to clause (i) of
paragraph one (as same may have been previously extended) that the date
computed pursuant to clause (i) of paragraph one shall be extended to a
date which is the earlier of (x) one year from the date to which clause (i)
of paragraph one shall have been extended and (y) the date in clause (iii)
of paragraph one,
then you may draw on us in the last thirty (30) days prior to the Termination
Date by presenting your draft stating "Drawn under Den Danske Bank New York
Branch Confirmation No. 5610-96NY" for up to the undrawn amount hereof when such
draft shall be accompanied by your statement that this amount is drawn because
advice of extension of the Termination Date of the Confirmation in accordance
with paragraph three of this Confirmation has not been received and less than
thirty (30) days remain until the Termination Date of the Confirmation.
This Confirmation is only transferable (i) by you; (ii) in whole; and (iii) to a
transferee which is a successor Trustee under the Indenture which such successor
beneficiary is identified as such in a certification signed by you substantially
in the form of Exhibit "C" to the Letter of Credit and delivered to us together
with the original Confirmation.
This Confirmation and the Letter of Credit sets forth in full our undertaking
and such undertaking shall not in any way, be modified, amended, amplified or
limited by reference to any document referred to herein (including, without
limitation, the Indenture or the Subordinated Notes), except only the drafts and
certificates referenced herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except for
such drafts or certificates. All documents presented and any communication
pertaining to the Confirmation shall bear the Confirmation number as referenced
herein.
This Confirmation is subject to the Uniform Customs and Practices for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs") and in the event of any conflict,
the Laws of the State of New York will control.
Sincerely,
DEN DANSKE BANK
/s/ John A. O'Neill /s/ Sonia Kataria
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John A. O'Neill Sonia Kataria
Vice President Assistant Vice President
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[LOGO] CREDIT LYONNAIS
December 23, 1996
U.S. BRANCHES
Den Danske Bank
280 Park Avenue, 4th Floor
New York, New York 10017-1218
Attention: Ms. Sonia Kataria
This letter serves as confirmation from our mutual agreement whereby Den
Danske Bank agrees to add its confirmation to the $3,262,500.00 standby letter
of credit #9612171S671 (the "Letter of Credit") to be issued by Credit Lyonnais
New York Branch as Agent for itself, Finova Capital and Barnett Bank of Lee
County (the "Bank") and to replace an existing interest reserve of nine months
on 10% Subordinated Notes due April 15, 2003. The Letter of Credit will be for
the benefit of SunTrust Bank, Central Florida, National Association, as Trustee
in respect of the public subordinated convertible bonds (the "Trustee"), and
will have a term of one year, with annual renewal options. If the Bank fails to
notify the Trustee that is has exercised its renewal option within 30 days prior
to expiry, the Trustee will have the right to fully draw upon the Letter of
Credit. Your commitment hereunder is for confirmation of the maximum face amount
of the Letter of Credit.
In consideration for your commitment, Credit Lyonnais agrees to immediately
notify Den Danske Bank in the event the Indenture, as defined in the Letter of
Credit, is terminated. In addition, Credit Lyonnais agrees to pay Den Danske
Bank an initial commitment fee of $500.00 and an annual confirmation fee
equivalent to 12.5 basis points on the amount of your actual confirmation
outstanding (the "Confirmation Fee") from the date the confirmation is issued
until such time the confirmation expires or is canceled due to cancellation of
the Letter of Credit. In addition, subsequent to closing, if any amendment to
the agreement is made, the Bank agrees to pay you $250.00. The Confirmation Fee
shall be payable by the Bank quarterly in arrears upon receipt of your invoice
addressed to:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
Attn: Cathy Wong, Letter of Credit Department
The terms of this agreement may be modified only in writing, provided that
Credit Lyonnais New York Branch reserves the right to cancel your commitment
hereunder at any time in the event that the Bank elects (in its sole discretion)
not to issue the Letter of Credit.
The Letter of Credit would be issued by us and your commitment would be
subject to and governed by Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500 ("Uniform
Customs"). As to matters not governed by the Uniform Customs, the Letter of
Credit and commitment would be governed and construed in accordance with the
laws of the State of New York. Please confirm your commitment by signing below.
Very truly yours,
CREDIT LYONNAIS NEW YORK BRANCH, as AGENT
By: ___________________________________
Title: Vice President
Accepted and Agreed this 23rd day of December 1996,
DEN DANSKE BANK
By: /s/ Sonia Kataria
__________________________________
Title: AVP