REIMBURSEMENT AND SECURITY AGREEMENT
BETWEEN
▇▇▇▇, INC.,
AND
WACHOVIA BANK OF NORTH CAROLINA, NATIONAL ASSOCIATION
DATED AS OF APRIL 1, 1997
RELATING TO $3,377,000 PRINCIPAL AMOUNT
CHESTERFIELD COUNTY, SOUTH CAROLINA
INDUSTRIAL REVENUE BONDS
(▇▇▇▇, INC. PROJECT) SERIES 1988
---------------------------------------------
REIMBURSEMENT AND SECURITY AGREEMENT
THIS REIMBURSEMENT AND SECURITY AGREEMENT, dated as of April 1, 1997,
is made and entered into by and between ▇▇▇▇, INC., a North Carolina corporation
(the "Company"), and WACHOVIA BANK OF NORTH CAROLINA, NATIONAL ASSOCIATION, a
national banking association with its principal office in Winston-Salem, North
Carolina (the "Bank").
W I T N E S S E T H:
WHEREAS, on December 19, 1988, Chesterfield County, South Carolina (the
"Issuer"), issued its Industrial Revenue Bonds (▇▇▇▇, Inc. Project) Series 1988
in the aggregate principal amount of $3,377,000 (the "Bonds") pursuant to an
Indenture of Trust dated as of December 1, 1988 (as the same may be supplemented
pursuant to its terms, the "Indenture"), between the Issuer and Branch Banking
and Trust Company, as trustee (together with any successors in trust, the
"Trustee"); and
WHEREAS, pursuant to a Loan Agreement dated as of December 1, 1988 (as
the same may be amended pursuant to its terms and the terms of the Indenture,
the "Loan Agreement") between the Issuer and the Company, the Issuer loaned the
proceeds of the Bonds to the Company (i) to finance the acquisition,
construction and equipping of certain facilities more fully described in the
Loan Agreement (the "Project"), and (ii) to pay certain costs of issuing the
Bonds; and
WHEREAS, to provide additional security for the payment of the Bonds,
the Bank issued its irrevocable, direct-pay letter of credit No. LC 968-068488
dated April 1, 1996 (the "Original Letter of Credit"); and
WHEREAS, the Original Letter of Credit was issued pursuant to a 1996
Amended and Restated Credit Agreement dated as of April 1, 1996, among the
Company, the Bank, and First Union National Bank of North Carolina, N.A. (the
"1996 Credit Agreement"); and
WHEREAS, the Company has determined to replace the 1996 Credit
Agreement with a new credit agreement dated as of April 23, 1997 (the "Credit
Agreement"), among the Company, the Banks listed therein, and Wachovia Bank of
Georgia, N.A., as Agent ("Agent"); and
WHEREAS, as a condition to the execution of the Credit Agreement, the
Company and the Bank, at the request of the Agent, have agreed to enter into
this Reimbursement Agreement to set forth the Company's obligations to reimburse
the Bank for any draws on the Letter of Credit, as hereinafter defined; and
WHEREAS, in connection with the execution of the Credit Agreement, the
Bank has agreed to amend the terms of the Original Letter of Credit in order to
provide for automatic extension of the
term thereof, and to amend certain references therein to refer to this
Reimbursement Agreement; and
WHEREAS, as required by SECTION 8.5 of the Indenture, the Trustee has
consented to the amendment of the Original Letter of Credit; and
WHEREAS, the Bank has agreed to issue the First Amendment to Letter of
Credit No. LC 968-068488 (the "First Amendment to Letter of Credit")
substantially in the form attached herein as EXHIBIT A, which is by this
reference made a part hereof (the Original Letter of Credit, as amended by the
First Amendment to Letter of Credit, as the same may be further amended from
time to time, the "Letter of Credit");
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I. DEFINITIONS.
Section I.1. Defined Terms. Unless otherwise specifically defined
herein, capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement. In the event the Credit Agreement is
no longer in effect, such terms and any other references to the terms of the
Credit Agreement shall have the meanings and substance assigned to them in the
Credit Agreement immediately prior to its termination. Furthermore, in addition
to the words and terms defined above, the following terms when used herein shall
have the following respective meanings:
"Bankruptcy Code" means Title 11 of the United States Code, as amended,
and any successor statute or statutes having substantially the same function.
"Business Day" means any day on which the offices of the Bank at which
drawings on the Letter of Credit are made, the Trustee, the Tender Agent, the
Registrar (as each such term is defined in the Indenture) and the Remarketing
Agent are each open for business and on which The New York Stock Exchange is not
closed.
"Closing Date" means April 23, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor federal tax code. Any reference to any provision of the Code shall
also include the income tax regulations promulgated thereunder, whether final,
temporary or proposed.
"Default" means any event that, with the passage of time or giving of
notice, or both, would constitute an Event of Default.
"Default Rate" means on any day, the sum of 2% plus the then highest
interest rate (including the Applicable Margin) which may be applicable to any
Loans under the Credit Agreement (irrespective of whether any such type of Loans
are actually outstanding thereunder).
"Environmental Law" means any federal, state or local law, statute,
ordinance, rule, regulation, permit, license, approval, interpretation, order,
guidance or other legal requirement (including without limitation any subsequent
enactment, amendment or modification) relating to the protection of human health
or the environment, including, but not limited to, any requirement pertaining to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of materials that are or may constitute a threat to human health or
the environment.
"Event of Default" means any of the events specified in SECTION 8.1
hereof.
"Expiration Date" means the Initial Expiration Date or, if the stated
term of the Letter of Credit is extended as contemplated in SECTION 2.2(B)
hereof, the last day of each Successive Extension Period.
"Fee Percentage" means (i) on the Closing Date, _____ % per annum, and
(ii) on each Payment Date thereafter, the percentage determined on such Payment
Date by reference to the table set forth below and the Debt/EBITDA Ratio for the
quarterly or annual period ending immediately prior to such Payment Date:
Debt/EBITDA Ratio Fee Percentage
< 1.5 to 1.0 .35%
=> 1.5 to 1 but
< 2.3 to 1 .40%
=> 2.3 to 1 but
< 2.5 to 1 .50%
> 2.5 to 1 .65%
"Financial Statements" means the annual audited consolidated financial
statements of the Company and its Subsidiaries at April 30 and for the year then
ended.
"Generally Accepted Accounting Principles" means generally accepted
accounting principles, applied on a consistent basis for the Company and its
Subsidiaries on a consolidated basis throughout the period indicated, as further
described in Section 1.02 of the
Credit Agreement.
"Governmental Authority" means any nation or government, any state,
department, agency or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government, and any corporation or other
entity owned or controlled (through stock or capital ownership or otherwise) by
any of the foregoing.
"Hazardous Material" means any substance or material meeting any one or
more of the following criteria: (i) it is or contains a substance designated as
a hazardous waste, hazardous substance, pollutant, contaminant or toxic
substance under any Environmental Law; (ii) it is toxic, explosive, corrosive,
ignitable, infectious, radioactive, mutagenic or otherwise hazardous, (iii) its
presence requires investigation or remediation under an Environmental Law or
common law; (iv) it constitutes a danger, nuisance, trespass or health or safety
hazard to persons or property; and/or (v) it is or contains, without limiting
the foregoing, petroleum hydrocarbons.
"Initial Expiration Date" means March 1, 2001.
"Letter of Credit Amount" means, at any time, the aggregate of the
Letter of Credit - Principal Component and the Letter of Credit - Interest
Component, subject to reduction or reinstatement as provided in the Letter of
Credit.
"Letter of Credit - Interest Component" has the meaning ascribed
thereto in SECTION 2.1 hereof.
"Letter of Credit - Principal Component" has the meaning ascribed
thereto in SECTION 2.1 hereof.
"Material Adverse Change" means a material adverse change in, any of
(i) the financial condition, operations, business, properties or prospects of
the Company and its Subsidiaries, taken as a whole; (ii) the ability of the
Company or any Subsidiary to perform under this Agreement or any Related
Document in any material respect or any other material contract to which any one
or more of them is a party in any material respect; (iii) the legality, validity
or enforceability of this Agreement or any Related Document; or (iv) the
perfection or priority of the liens of the Bank granted under this Agreement or
any Related Document or the rights and remedies of the Bank under this Agreement
or any Related Document (other than a change resulting from any act or omission
by the Bank).
"Moody's" means ▇▇▇▇▇'▇ Investors Service and any successor thereto
which is a nationally recognized rating agency.
"Notice of Adjustment" has the meaning ascribed thereto in SECTION
2.4(B) hereof.
"Notice of Non-Extension" means a written notice delivered by the Bank
to the Trustee, the Company and the Rating Agency to the effect that the Letter
of Credit will not be extended for a Successive Extension Period.
"Offering Memorandum" means collectively the Preliminary Offering
Memorandum and the Offering Memorandum with respect to the initial offering and
sale of the Bonds, together with the Supplement to Offering Memorandum to be
distributed in connection with the remarketing of the Bonds following the
Closing Date.
"Payment Date" means each anniversary of the Closing Date, commencing
April 23, 1998.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an unincorporated association, a trust or any other entity or
organization, including, but not limited to, a government or political
subdivision or an agency or instrumentality thereof.
"Placement Agent" means Wachovia Bank of North Carolina, National
Association, in its capacity as placement agent under the Placement Agreement.
"Placement Agreement" means the Placement Agreement as defined in the
Indenture.
"Pledged Bond Collateral" has the meaning set forth in SECTION 9.1
hereof.
"Pledged Bonds" means those Bonds which have been purchased from monies
drawn under the Letter of Credit and not remarketed by the Remarketing Agent
pursuant to of the Indenture.
"Purchase Price" means an amount equal to 100% of the principal amount
of any Bond tendered or deemed tendered for purchase pursuant to the Indenture
plus accrued and unpaid interest thereon to the date of purchase.
"Rating Agency" means Moody's, Standard & Poor's and any other national
rating service acceptable to the Trustee, the Remarketing Agent, the Bank and
the Company that has a rating of the Bonds in effect at that time.
"Reimbursement Agreement" means this Reimbursement and Security
Agreement, as the same may be amended, modified, supplemented or restated from
time to time.
"Reimbursement Obligations" means any one or more of the obligations of
the Company to the Bank under this Reimbursement Agreement, including but not
limited to the obligations specified
in SECTION 2.5 of this Reimbursement Agreement.
"Related Documents" means the Bonds, the Indenture, the Loan Agreement,
the Placement Agreement, the Remarketing Agreement and any other instrument,
document, agreement or certificate relating thereto or otherwise executed and
delivered in connection with the issuance of the Bonds or the Letter of Credit.
"Remarketing Agent" means Wachovia Bank of North Carolina, National
Association, and its successors appointed and serving in such capacity under the
Indenture.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, and any successor thereto which is a
nationally recognized rating agency.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time, directly or indirectly, by the Company.
"Successive Extension Period" has the meaning ascribed thereto in
SECTION 2.2(B) hereof.
"Tender Advance" means a loan by the Bank to the Company made pursuant
to SECTION 2.6 hereof, the proceeds of which are used to reimburse the Bank for
the amount of a corresponding Tender Drawing.
"Tender Advance Interest Rate" means the interest rate applicable to a
Euro-Dollar Loan under the Credit Agreement as of the date of such Tender
Advance.
"Tender Agent" has the meaning ascribed thereto in ARTICLE I of the
Indenture.
"Tender Drawing" means a drawing under the Letter of Credit to pay the
portion of the Purchase Price of the Bonds allocable to principal.
"Termination Date" means the earliest of (i) the close of business on
the Expiration Date, (ii) the date on which the principal amount of and interest
on the Bonds shall have been paid in full, (iii) the close of business on the
second Business Day following conversion of the interest rate on the Bonds to a
Fixed Rate (as defined in the Indenture), (iv) the date on which the Bank honors
the draft drawn on the Letter of Credit pursuant to the Indenture following the
occurrence of an Event of Default (as defined in the Indenture) and an
acceleration, (v) the date the Letter of Credit is surrendered to the Bank for
cancellation, or (vi) the date the Bank honors the final drawing available under
the
Letter of Credit.
Section I.2. Accounting Terms. Any accounting terms used in this
Reimbursement Agreement that are not specifically defined shall be interpreted
as set forth in Section 1.02 of the Credit Agreement.
Section I.3. Singular/Plural. Unless the context otherwise requires,
words in the singular include the plural and words in the plural include the
singular.
ARTICLE II. THE LETTER OF CREDIT.
Section II.1. Terms of Letter of Credit. The Bank issued its Letter of
Credit on April 1, 1996, in an amount equal to the sum of (i) the aggregate
principal amount of the Bonds (the "Letter of Credit - Principal Component"),
plus (ii) an amount equal to 120 days' interest on the Bonds, computed as though
the Bonds bore interest at the rate of 15% per annum, notwithstanding the actual
rate borne by the Bonds from time to time, based on a 360-day year for the
actual number of days elapsed (the "Letter of Credit - Interest Component"). The
Original Letter of Credit is hereby amended by the First Amendment, as set forth
on EXHIBIT A hereto. The Bank shall execute the First Amendment and deliver it
to the Trustee with instructions that the First Amendment be attached to the
Original Letter of Credit.
Section II.2. Term of the Letter of Credit; Extensions of the Stated
Term; Cancellation or Replacement of the Letter of Credit.
(a) The term of the Letter of Credit shall end on the Termination Date.
(b) The initial term of the Letter of Credit is stated to expire,
subject to earlier termination, on the Initial Expiration Date. The Initial
Expiration Date will be automatically extended, subject to earlier termination,
for successive additional periods of one calendar month each ("Successive
Extension Periods") until the fifth day of the thirteenth calendar month
following the calendar month during which the Company, the Trustee, and the
Rating Agency receive a Notice of Non-Extension from the Bank. The Bank's
decision to deliver a Notice of Non-Extension shall be made in its sole
discretion and no course of dealing or other circumstance shall be deemed to
require the Bank to refrain from delivering a Notice of Non-Extension. The
Company shall provide prior written notice to the Trustee of any amendment or
modification of this SECTION 2.2(B).
(c) The Letter of Credit may be canceled or replaced at any time
without penalty or premium at the request of the Company upon satisfaction of
all conditions specified in subsections (i), (ii)
and (iii) hereof:
(i) the Company shall have given not less than thirty (30)
days prior written notice to the Bank that the Company desires to
cancel or replace the Letter of Credit;
(ii) the Letter of Credit shall have been returned to the Bank
for cancellation; and
(iii) all Reimbursement Obligations (including all Letter of
Credit fees) shall have been paid in full.
Upon the cancellation or replacement of the Letter of Credit in
accordance with this Section, the Bank will within ten (10) days of the
effective date of such cancellation or replacement refund to the Company any
unearned portion of the letter of credit fee previously paid by the Company to
the Bank pursuant to Section 2.4(a).
Section II.3. Reduction of Letter of Credit Amount; Restoration of
Letter of Credit Amount. Without limiting the provisions of the Letter of
Credit, the Letter of Credit - Interest Component shall be reduced in an amount
equal to any draw to pay interest on the Bonds (including interest constituting
a portion of the Purchase Price of Bonds), but shall be reinstated automatically
ten (10) calendar days after drawing unless the Bank shall have notified the
Trustee that (i) the Bank has not been reimbursed for said drawing or (ii) that
an Event of Default has occurred and is continuing. In addition, and without
limiting the provisions of the Letter of Credit, the Letter of Credit -
Principal Component shall be reduced in an amount equal to any draw to pay
principal of the Bonds (including any Tender Drawing), but, with respect to any
Tender Drawing, such amount will be reinstated upon receipt by the Trustee of
notice from the Bank that the Tender Advance applicable thereto has been repaid.
Section II.4. Fees Relating to Letter of Credit.
(a) The Company hereby agrees to pay to the Bank annually in advance,
commencing on the Closing Date and thereafter on each Payment Date, a letter of
credit fee, calculated in the manner provided in the last paragraph of Section
2.06(a)(ii) of the Credit Agreement, equal to the product of the Letter of
Credit Amount in effect on the date of such payment (after giving effect to any
reduction in the Letter of Credit Amount resulting from a redemption of Bonds on
such date) multiplied by the applicable Fee Percentage. The letter of credit fee
shall be computed on the basis of the actual number of days elapsed over a
360-day year. If a Tender Advance is outstanding on any Payment Date, the
Company shall pay to the Bank an additional letter of credit fee on any date
when all or a portion of the principal amount of such Tender Advance is repaid
equal to the product of the principal amount of the Tender Advance being repaid,
multiplied by (1) the Fee Percentage, and (2) the number of days from the date
of such repayment until the next Payment Date divided by 360.
(b) If, after the date hereof, any law or regulation shall be adopted
or any change in any law or regulation or in the interpretation thereof by any
Governmental Authority shall occur, which adoption or change shall either: (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, the Bank, or (ii) impose on the Bank any other
condition relating, directly or indirectly, to this Reimbursement Agreement or
the Letter of Credit, and the result of any event referred to in clause (i) or
(ii) of this subsection shall be to increase the cost to the Bank of issuing or
maintaining the Letter of Credit, then the Company shall pay to the Bank, upon
demand therefor by the Bank, such additional amounts as the Bank shall
reasonably determine are necessary to compensate the Bank for such increased
cost, together with interest on such amount calculated at the Default Rate from
the date of such demand until payment in full if such amount is not paid in full
within thirty (30) days after such demand. The Bank shall deliver to the Company
a certificate as to such increased cost incurred by the Bank as a result of any
event mentioned in this subsection, setting forth in reasonable detail the basis
therefor and the manner of calculation thereof, as soon as practicable after the
Bank becomes aware of such change, which certificate shall be conclusive (absent
manifest error) as to the amount set forth therein.
(c) If after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
or compliance by the Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority,
has or would have the effect of reducing the rate of return on the
Bank's capital as a consequence of its obligations under the Letter of Credit to
a level below that which the Bank could have achieved but for such adoption,
change or compliance (taking into consideration the Bank's policies with respect
to capital adequacy), then the Company shall pay to the Bank, upon demand
therefor by the Bank, such additional amounts as the Bank shall reasonably
determine are necessary to compensate the Bank for such reduced rate of return,
together with interest on such amount calculated at the Default Rate from the
date of such demand until payment in full if such amount is not paid in full
within thirty (30) days after such demand. The Bank shall deliver to the Company
a certificate as to such reduced rate of return incurred by the Bank as a result
of any event mentioned in this subsection, setting forth in reasonable detail
the basis therefor and the manner of calculation thereof, as soon as practicable
after the Bank becomes aware of such change, which certificate shall be
conclusive (absent manifest error) as to the amount set forth therein. In
determining such amount, the Bank may use any reasonable averaging and
attribution methods.
(d) The Company hereby agrees to pay to the Bank upon each drawing
under the Letter of Credit in accordance with its terms a drawing fee equal to
$100.00 per drawing, unless the Bank or one of its Affiliates is serving as
Trustee pursuant to the terms of the Indenture on the date of such drawing. Such
fee is due and payable on the date each drawing under the Letter of Credit is
made.
Section II.5. Reimbursement of Drawings under Letter of Credit.
(a) The Company hereby agrees to pay to the Bank immediately after and
on the same Business Day as any amount is drawn and paid under the Letter of
Credit a sum equal to the amount so drawn; PROVIDED, HOWEVER, that if the Bank
makes a Tender Advance pursuant to SECTION 2.6 on account of a Tender Drawing,
the Company's obligation to reimburse the Bank for the amount of such Tender
Drawing shall be deemed satisfied by the Bank's application of the proceeds of
such Tender Advance.
(b) If the Company fails to pay to the Bank any amount when due under
this Reimbursement Agreement, interest shall accrue on any and all such amounts
at the Default Rate (in the case of interest on interest, to the maximum extent
permitted by law), commencing the day after such amounts first became due until
payment in full, and the Company hereby agrees to pay such accrued interest to
the Bank upon demand.
Section II.6. Tender Advances, Prepayments, Interest Computations and
Notices.
(a) The Bank agrees to make Tender Advances to the Company for the
purpose of paying Tender Drawings arising from time to time (other than a Tender
Drawing upon conversion of the interest rate on the Bonds to a "Fixed Rate" as
defined in the Indenture), subject to the following conditions precedent: (i)
the representations and warranties contained in ARTICLE V hereof shall be true
and correct on and as of the date of such Tender Drawing as if made on and as of
such date; and (ii) after giving effect to the foregoing clause (i), no Default
or Event of Default under this Reimbursement Agreement shall have occurred and
be continuing. Each Tender Advance shall be in an amount equal to a
corresponding Tender Drawing and the proceeds of such Tender Advance shall be
applied by the Bank automatically to the payment in full of such Tender Drawing.
The Company hereby agrees to pay to the Bank the aggregate unpaid principal
amount of all Tender Advances, together with all accrued and unpaid interest
thereon, on the Termination Date. The Tender Advances may, but need not, be made
against and evidenced by such promissory notes or instruments as the Bank may
deem appropriate. Where a Tender Advance is evidenced by a promissory note or
other instrument, the Company hereby authorizes the Bank to endorse on any
schedule which may be attached thereto the amount of each Tender Advance made by
the Bank to the Company hereunder, the date such Tender Advance is made and the
amount of each payment or prepayment of principal of such Tender Advance
received by the Bank; PROVIDED, HOWEVER, that any failure by the Bank to make
any such endorsement shall not limit, modify or affect the obligations of the
Company hereunder or under any promissory note or instrument relating thereto in
respect of such Tender Advances.
(b) The Company hereby promises to pay to the Bank interest at a rate
per annum equal to the Tender Advance Interest Rate on the unpaid principal
amount of each Tender Advance for the period commencing on the date of such
Tender Advance to, but excluding, the date such Tender Advance is paid in full;
PROVIDED, HOWEVER, that if the Company fails to pay any portion of the principal
of or accrued interest on any Tender Advance when due, interest on the unpaid
principal amount of each Tender Advance shall accrue and be payable in
accordance with the provisions of SECTION 2.5(B). Accrued interest on each
Tender Advance shall be payable (i) on each Payment Date, (ii) upon the payment
or prepayment thereof (but only on the principal so paid or prepaid), and (iii)
on the Termination Date.
(c) All Tender Advances may be prepaid: (i) at any time by the Company
on one (1) Business Day's notice stating the amount to be prepaid (which shall
be $5,000 or a whole number multiple thereof); and (ii) at any time on behalf of
the Company on one (1) Business Day's notice from the Company or the Remarketing
Agent directing the Bank to deliver (or, if the Bonds are then maintained
in book-entry form, authorize the release of) a specified principal amount of
Pledged Bonds held by or for the benefit of the Bank for remarketing pursuant to
SECTION 2.7 of the Indenture. Each such notice of prepayment shall be
irrevocable and shall specify the Tender Advance to be prepaid and the amount of
the Tender Advance to be prepaid and the date of prepayment (which date shall be
a Business Day). Upon payment to the Bank of the amount to be prepaid pursuant
to clause (i) or (ii) above, together with accrued interest, as set forth in
SECTION 2.6(B)(II) hereof, to the date of such prepayment on the amount to be
prepaid, the outstanding obligations of the Company under SECTION 2.6(A) shall
be reduced by the amount of such prepayment, interest shall cease to accrue on
the amount prepaid, and the Bank shall release or authorize the release from the
pledge and security interest created under SECTION 9.1 hereof a principal amount
of Pledged Bonds equal to the amount of such prepayment. Such Bonds shall be
delivered to (or, if the Bonds are then maintained in book-entry form,
registered for the account of) the Company, in the event of a prepayment
pursuant to clause (i) above, or the Remarketing Agent pursuant to SECTION 2.7
of the Indenture, in the event of a prepayment pursuant to clause (ii) above, as
appropriate.
Section II.7. Form and Place of Payments; Computation of Interest. All
payments by the Company to the Bank hereunder shall be made in lawful currency
of the United States and in immediately available funds at the Bank's principal
office, which at the date hereof is located at Winston-Salem, North Carolina.
Whenever any payment hereunder shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to the next succeeding
Business Day, and any interest payable thereof shall be payable for such
extended time at the specified rate. All interest (including, without
limitation, interest on Tender Advances) and fees hereunder shall be computed on
the basis of the actual number of days elapsed over a 360-day year and shall
include the first day but exclude the last day of the relevant period.
ARTICLE III. OBLIGATIONS ABSOLUTE.
Section III.1. Obligations Absolute, Unconditional and Irrevocable. The
obligations of the Company under this Reimbursement Agreement and the Related
Documents shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms hereof and thereof, under all
circumstances whatsoever, irrespective of any of the following circumstances:
(a) any lack of validity or enforceability of this Reimbursement
Agreement, the Letter of Credit, the Bonds or any of the other Related
Documents;
(b) any amendment or waiver of or any consent to departure
from this Reimbursement Agreement, the Letter of Credit, the Bonds or all or any
of the other Related Documents (except to the extent such amendment or waiver
expressly relieves the Company of an obligation under this Reimbursement
Agreement or the Related Documents);
(c) the existence of any claim, setoff, defense or other rights which
the Company or any other Person may have at any time against the Trustee, the
Placement Agent, the Remarketing Agent, the Tender Agent, any beneficiary or any
transferee of the Letter of Credit (or any Person for whom the Trustee, the
Placement Agent, the Remarketing Agent, the Tender Agent, any such beneficiary
or any such transferee may be acting), the Bank, or any other Person, whether in
connection with this Reimbursement Agreement, the Letter of Credit, the Bonds,
the Credit Agreement or any of the other Related Documents or any unrelated
transaction;
(d) any statement or any other document presented under the Letter of
Credit proves to be forged, fraudulent or invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect whatsoever
(absent gross negligence or willful misconduct by the Bank);
(e) payment by the Bank under the Letter of Credit against presentation
of a draft or certificate that does not comply with the terms of the Letter of
Credit (absent gross negligence or willful misconduct by the Bank); and
(f) any other circumstance or happening whatsoever whether or not
similar to any of the foregoing.
Nothing contained herein shall act as a waiver of any rights or claims
the Company may have against the Bank or any other party listed in SECTION
3.1(C) above.
ARTICLE IV. CONDITIONS PRECEDENT TO
EXECUTION OF REIMBURSEMENT AGREEMENT
Section IV.1. Conditions Precedent to Execution of Reimbursement
Agreement. Each of the following is a condition precedent to the obligation of
the Bank to enter into this Reimbursement Agreement.
(a) On or before the Closing Date, the Bank shall have received the
following documents, instruments, opinions and certificates, each in form and
substance satisfactory to the Bank:
(i) a duly executed original of this Reimbursement Agreement
and the Credit Agreement;
(ii) a Closing Certificate as defined in Section 3.01(e)
of the Credit Agreement, addressed to the Bank;
(iii) an Officer's Certificate, as defined in Section 3.01(f)
of the Credit Agreement, addressed to the Bank, together with a copy of
the items described in such section; and
(iv) a Certificate of the Trustee evidencing the Trustee's
consent to the First Amendment to Letter of Credit; and
(v) such other documents, instruments, opinions, certificates,
approvals or consents as the Bank may reasonably request.
(b) As of the Closing Date the Bank shall be satisfied that there has
been no Material Adverse Change, and that all information, representations and
materials submitted to the Bank by the Company in connection with the issuance
of the Letter of Credit are accurate and complete in all material respects.
ARTICLE V. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company set forth in Article
IV of the Credit Agreement are hereby incorporated by reference as is set forth
herein. Such representations and warranties are true and accurate on the date
hereof (and the date of any Tender Advance, if any, made pursuant to this
Reimbursement Agreement).
ARTICLE VI. COVENANTS.
Until the Letter of Credit has terminated and all Reimbursement
Obligations have been paid in full, the Company will, and will cause its
Subsidiaries to:
Section VI.1. Financial and Business Information. Deliver to the Bank:
(a) As soon as available and in any event within forty-five (45) days
after the close of each of the first three Fiscal Quarters of each Fiscal Year
of the Company, beginning with the current quarter, a consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related consolidated statement of income and statement of cash
flows for such Fiscal Quarter then ended and for that portion of the Fiscal Year
then ended, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness
of presentation, GAAP and consistency by the chief financial officer or the
chief accounting officer of the Borrower;
(b) As soon as available and in any event within ninety (90) days after
the close of each Fiscal Year, consolidated balance sheet of the Company and its
consolidated Subsidiaries as of the close of such Fiscal Year and the related
audited consolidated statements of income, shareholders' equity and cash flows
for each Fiscal Year, setting forth in comparative form the corresponding
figures for the preceding Fiscal Year, all certified by KPMG Peat Marwick LLP or
other independent public accountants of nationally recognized standing, with
such certification to be free of exceptions and qualifications not acceptable to
the Bank;
(c) Concurrently with the delivery of the financial statements
described in subsections (a) and (b) above, a certificate required by Section
5.01(c) of the Credit Agreement, in substantially the form of EXHIBIT F to the
Credit Agreement addressed to the Bank; and
(d) Copies of any other documents, instruments, certificates and
notices required to be delivered to the Agent pursuant to Section 5.01 of the
Credit Agreement.
Section VI.2. Notice of Certain Events. Promptly give notice in writing
to the Bank of any Default or Event of Default under the Reimbursement
Agreement.
Section VI.3. Covenants Incorporated by Reference. The covenants of the
Company set forth in Sections 5.02 through 5.05, inclusive, and 5.07 through
5.22, inclusive, of the Credit Agreement are hereby incorporated by reference
and shall be deemed to be made for the benefit the Bank under the Reimbursement
Agreement as if fully set forth herein; PROVIDED THAT in all such covenants, the
terms "the Banks" and "the Agent" shall be deemed to include the Bank, and the
Bank shall be entitled to receipt of all notices, instruments, certificates and
documents required to be delivered to the Banks or the Agent pursuant to such
sections.
ARTICLE VII. RESERVED.
ARTICLE VIII. EVENTS OF DEFAULT; REMEDIES.
Section VIII.1. Events of Default. The occurrence of any one or more of
the following events shall constitute an Event of Default hereunder:
(a) The Company shall fail to pay when due any amount payable under
this Reimbursement Agreement;
(b) The Company shall fail to observe or perform any covenant,
restriction or agreement contained in SECTIONS 6.1, 6.2 AND 6.3 of this
Reimbursement Agreement;
(c) The Company shall fail to observe or perform any covenant,
restriction or agreement contained in this Reimbursement Agreement and not
described in SECTIONS 8.1(A) and (B) above for thirty (30) days after receipt by
the Company of written notice from the Bank;
(d) Any representation, warranty, certification or statement made or
deemed made by the Company in ARTICLE V of this Reimbursement Agreement, in any
Related Document, in the Credit Agreement or in any certificate, financial
statement or other document delivered pursuant to this Reimbursement Agreement
or any Related Document shall prove to have been incorrect in any material
respect when made or deemed made;
(e) A default or event of default as defined in any Related Document
shall occur and be continuing; or
(f) A default or event of default as defined in the Credit Agreement or
in any other agreement between the Company and the Bank shall occur and be
continuing.
Section VIII.2. Remedies. Upon the occurrence and during the
continuance of any Event of Default:
(a) Acceleration of Indebtedness. The Bank may, in its sole discretion,
(i) declare all Tender Advances and all other amounts due hereunder and all
interest accrued thereon to be immediately due and payable, and upon such
declaration the same shall become and be immediately due and payable, without
presentment, protest or other notice of any kind, all of which are hereby waived
by the Company, (ii) notify the Trustee of such occurrence and thereby require
the Trustee immediately to declare the principal of all Bonds then outstanding
and the interest accrued thereon immediately due and payable pursuant to the
Indenture, and (iii) pursue all remedies available to it by contract, at law or
in equity.
(b) Right of Set-off. The Bank may, and is hereby authorized by the
Company, at any time and from time to time, to the fullest extent permitted by
applicable laws, without advance notice to the Company (any such notice being
expressly waived by the Company), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
any other indebtedness at any time owing by the Bank or any of its Affiliates to
or for the credit or the account of the Company against any or all of the
obligations of the Company under this Reimbursement Agreement now or hereafter
existing, whether or not such obligations have matured. The Bank agrees promptly
to notify the Company after any such set-off or application; PROVIDED, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.
(c) Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of
the Bank's rights and remedies set forth in this Reimbursement Agreement is not
intended to be exhaustive and the exercise by the Bank of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder, under any Related Documents or under any other agreement between the
Company and the Bank or that may now or hereafter exist in law or in equity or
by suit or otherwise. No delay or failure to take action on the part of the Bank
in exercising any right, power or privilege shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege
preclude other or further exercise thereof or the exercise of any other right,
power or privilege or shall be construed to be a waiver of any Event of Default.
No course of dealing between the Company and the Bank or their agents or
employees shall be effective to change, modify or discharge any provision of
this Reimbursement Agreement or any of the Related Documents or to constitute a
waiver of any Event of Default.
ARTICLE IX. PLEDGED BONDS.
Section IX.1. The Pledge. The Company hereby pledges, assigns,
hypothecates, transfers, and delivers to the Bank all its right, title and
interest to, and hereby grants to the Bank a first lien on, and security
interest in, all right, title and interest of the Company in and to the
following (hereinafter collectively called the "Pledged Bond Collateral"):
(i) all Pledged Bonds;
(ii) all income, earnings, profits, interest, premium or other
payments in whatever form in respect of the Pledged Bonds; and
(iii) all proceeds (cash and non-cash) arising out of the
sale, exchange, collection, enforcement or other disposition of all or
any portion of the Pledged Bonds.
The Pledged Bond Collateral shall serve as security for the payment and
performance when due of the Reimbursement Obligations. The Company shall
deliver, or cause to be delivered, the Pledged Bonds to the Bank or to a pledge
agent designated by the Bank immediately upon receipt thereof or, in the case of
Pledged Bonds held under a book-entry system administered by The Depository
Trust Company ("DTC"), New York, New York (or any other clearing corporation),
the Company shall cause the Pledged Bonds to be reflected on the records of DTC
(or such other clearing corporation) as a position
held by the Bank (or a pledge agent acceptable to the Bank) as a DTC participant
(or a participant in such other clearing corporation) and the Bank (or its
pledge agent) shall reflect on its records that the Pledged Bonds are owned
beneficially by the Company subject to the pledge in favor of the Bank.
Section IX.2. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing, the Bank, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon the Company or any other
person (all and each of which demands, advertisements and/or notices are hereby
expressly waived), may forthwith collect, receive, appropriate and realize upon
the Pledged Bond Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase, contract to sell or otherwise
dispose of and deliver said Pledged Bond Collateral, or any part thereof, in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or at any of the Bank's offices or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk,
with the right to the Bank upon any such sale or sales, public or private, to
purchase the whole or any part of said Pledged Bond Collateral so sold, free of
any right or equity of redemption in the Company, which right or equity is
hereby expressly waived or released. The Bank shall apply the net proceeds of
any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred therein
or incidental to the care, safekeeping or otherwise of any and all of the
Pledged Bond Collateral or in any way relating to the rights of the Bank
hereunder, including reasonable attorneys' fees and legal expenses, to the
payment in whole or in part of the Reimbursement Obligations in such order as
the Bank may elect, the Company remaining liable for any deficiency remaining
unpaid after such application, and only after so applying such net proceeds and
after the payment by the Bank of any other amount required by any provision of
law, including, without limitation, Section 9-504(1)(c) of the Uniform
Commercial Code, need the Bank account for the surplus, if any, to the Company.
The Company agrees that the Bank need not give more than ten days notice of the
time and place of any public sale or of the time after which a private sale or
other intended disposition is to take place and that such notice is reasonable
notification of such matters. No notification need be given to the Company if it
has signed after Default a statement renouncing or modifying any right to
notification of sale or other intended disposition. In addition to the rights
and remedies granted to the Bank in this Reimbursement Agreement and in any
other instrument or agreement securing, evidencing or relating to any of the
Reimbursement Obligations, the Bank shall have all the rights and remedies of a
secured party under the Uniform Commercial Code in effect in the State of North
Carolina at that time.
If the Bank sells any of the Pledged Bond Collateral pursuant to this
SECTION 9.2, the Bank agrees that it will reinstate the Letter of Credit in an
amount sufficient to cover all principal and accrued interest on the Bonds so
sold for up to 120 days at 15% per annum (computed on the basis of a 360-day
year).
Section IX.3. Valid Perfected First Lien. The Company covenants that
the pledge, assignment and delivery of the Pledged Bond Collateral hereunder
will create a valid, perfected, first priority security interest in all right,
title or interest of the Company in or to such Pledged Bond Collateral, and the
proceeds thereof, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, option or encumbrance or to any agreement purporting
to grant to any third party a security interest in the property or assets of the
Company which would include the Pledged Bond Collateral. The Company covenants
and agrees that it will defend the Bank's right, title and security interest in
and to the Pledged Bond Collateral and the proceeds thereof against the claims
and demands of all persons whomsoever.
Section IX.4. Release of Pledged Bonds. Pledged Bonds shall be released
from the security interest created hereunder upon satisfaction of the
Reimbursement Obligations with respect to such Pledged Bonds as provided in
SECTION 2.8 of the Indenture.
ARTICLE X. MISCELLANEOUS.
Section X.1. Costs, Expenses and Taxes. The Company agrees to pay on
demand all reasonable out-of-pocket expenses of the Bank, including reasonable
fees and disbursements of counsel, in connection with: (i) the preparation,
execution, delivery, and filing, if required, of this Reimbursement Agreement
and the Letter of Credit, (ii) any amendments, supplements, consents or waivers
hereto or thereto, and (iii) the administration or enforcement of this
Reimbursement Agreement, the Bonds, the Letter of Credit and the Related
Documents and any other documents which may be delivered in connection herewith
or therewith. In addition, the Company 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 this Reimbursement Agreement and
the Related 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. It is the intention of the parties hereto
that the Company shall pay amounts referred to in this Section directly. In the
event the Bank pays any of the amounts referred to in this Section directly, the
Company will reimburse the Bank for such advances and interest on such advance
shall accrue until reimbursed at the Default Rate.
Section X.2. Indemnification. From and at all times after the date of
this Reimbursement Agreement, and in addition to all of the Bank's other rights
and remedies against the Company, the Company agrees to indemnify, defend and
hold harmless the Bank, and each director, officer, employee, agent, successor,
assign and affiliate of the Bank from and against the following (collectively
"Costs"): any and all claims (whether valid or not), losses, damages, actions,
suits, inquiries, investigations, administrative proceedings, judgments, liens,
liabilities, penalties, fines, amounts paid in settlement, requirements of
Governmental Authorities, punitive damages, interest, damages to natural
resources and other costs and expenses of any kind or nature whatsoever
(including without limitation reasonable attorneys' fees and expenses, court
costs and fees, and consultant and expert witness fees and expenses) arising in
any manner, directly or indirectly, out of or by reason of (a) the negotiation,
preparation, execution or performance of this Reimbursement Agreement or the
Related Documents, or any transaction contemplated herein or therein, whether or
not the Bank or any other party protected under the indemnity agreement under
this paragraph is a party to any action, proceeding or suit in question, or the
target of any inquiry or investigation in question; PROVIDED, HOWEVER, that no
indemnified party shall have the right to be indemnified hereunder for any
liability resulting from the willful misconduct or gross negligence of such
indemnified party (as finally determined by a court of competent jurisdiction),
(b) any breach of any of the covenants, warranties or representations of the
Company hereunder or under any Related Document, (c) any violation or alleged
violation of any Environmental Law, federal or state securities law, common law,
equitable requirement or other legal requirement by the Company or with respect
to any property owned, leased or operated by the Company (in the past, currently
or in the future), (d) by reason of any untrue statement or alleged untrue
statement of any material fact contained or incorporated by reference in the
Offering Memorandum, or in any supplement or amendment thereto, or the omission
to state therein a material fact necessary to make such statements, in the light
of the circumstances under which they are or were made, not misleading (other
than statements or information supplied by the Bank for incorporation in the
Offering Memorandum); (e) by reason of or in connection with the execution and
delivery or transfer of, or payment or failure to pay under, the Letter of
Credit (unless such Cost was caused by the willful misconduct or gross
negligence of the Bank); and/or (f) any presence, generation, treatment,
storage, disposal, transport, movement, release, suspected release or threatened
release of any Hazardous Material on, in, to or from any property (or any part
thereof including without limitation the soil and groundwater thereon and
thereunder) owned, leased or operated by the Company (in the past, currently or
in the future).
All of the foregoing Costs and obligations of the Company shall be
additional obligations hereunder. In the event the Bank
or any other indemnified party shall suffer or incur any Costs, the Company
shall pay to the indemnified party the total of all such Costs suffered or
incurred by the party, and fulfill its other obligations hereunder, on demand.
Without limiting the foregoing, the Company shall be obligated to pay,
on demand, the costs of any investigation, monitoring, assessment, enforcement,
removal, remediation, restoration or other response or corrective action
undertaken by the Bank or any other indemnified party, or their respective
agents, with respect to any property owned, leased or operated by the Company.
It is expressly understood and agreed that the obligations of the
Company under this Section shall not be limited to any extent by the term of the
Letter of Credit or this Reimbursement Agreement and shall remain in full force
and effect unless and until expressly terminated by Bank in writing.
Section X.3. Waiver of Jury Trial. AS PART OF THE CONSIDERATION FOR NEW
VALUE THIS DAY RECEIVED, THE COMPANY HEREBY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING WITHIN THE STATE OF NORTH
CAROLINA FOR ANY ACTION TO WHICH THE COMPANY AND THE BANK ARE PARTIES ARISING
OUT OF OR IN CONNECTION WITH THIS REIMBURSEMENT AGREEMENT OR ANY OF THE RELATED
DOCUMENTS. TO THE EXTENT PERMITTED BY LAW, THE COMPANY WAIVES TRIAL BY JURY AND
WAIVES ANY OBJECTION WHICH THE COMPANY MAY HAVE BASED ON LACK OF JURISDICTION OR
IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY ACTION INSTITUTED
HEREUNDER OR UNDER ANY OF THE RELATED DOCUMENTS, OR ARISING OUT OF OR IN
CONNECTION WITH THIS REIMBURSEMENT AGREEMENT OR ANY OF THE RELATED DOCUMENTS, OR
ANY OTHER PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS REIMBURSEMENT
AGREEMENT OR ANY OF THE RELATED DOCUMENTS TO WHICH THE BANK IS A PARTY,
INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF OR IN CONNECTION WITH ANY
COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE BANK OR THE COMPANY, AND THE COMPANY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT OF THE BANK TO BRING ANY ACTION OR
PROCEEDING AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS
JURISDICTION OVER THE COMPANY.
Section X.4. Waiver of Automatic or Supplemental Stay. IN THE EVENT
THAT A PETITION FOR RELIEF UNDER ANY CHAPTER OF THE BANKRUPTCY CODE IS FILED BY
OR AGAINST THE COMPANY, THE COMPANY PROMISES AND COVENANTS THAT IT WILL NOT SEEK
A SUPPLEMENTAL STAY PURSUANT TO BANKRUPTCY CODE ▇▇.▇▇. 105 OR 362 OR ANY OTHER
RELIEF PURSUANT TO BANKRUPTCY CODE SS. 105 OR ANY OTHER PROVISION OF THE
BANKRUPTCY CODE, WHETHER INJUNCTIVE OR OTHERWISE, WHICH WOULD STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT THE BANK'S ABILITY TO ENFORCE ANY RIGHTS IT HAS, AT
LAW OR IN EQUITY, TO COLLECT THE REIMBURSEMENT OBLIGATIONS FROM ANY PERSON OTHER
THAN THE COMPANY.
Section X.5. Notices. All demands, notices, approvals, consents,
requests, and other communications hereunder shall be in writing and shall be
deemed to have been given when the writing is delivered, if given or delivered
by hand, overnight delivery service or facsimile transmitter (with confirmed
receipt), or five (5) days after being mailed, if mailed by first class,
registered or certified mail, postage prepaid, to the address or telecopy number
set forth below:
Party Address
Company ▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Bank Wachovia Bank of North Carolina,
National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Wachovia Bank of North Carolina,
National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: International Department
Wachovia Bank of North Carolina,
National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Money Market
Group/Customer Services
Trustee First-Citizens Bank & Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company, the Bank or the Trustee may, by notice given hereunder, designate
any further or different addresses or telecopy numbers to which subsequent
demands, notices, approvals, consents, requests or other communications shall be
sent or persons to whose attention the same shall be directed.
Section X.6. Payment from Bank's Funds. The Bank hereby covenants and
agrees that any payments under the Letter of Credit will be made with the Bank's
own funds and not with funds of the Issuer or the Company.
Section X.7. Limited Liability of the Bank. As between the Company and
the Bank, the Company agrees to assume all risk of the acts or omissions of the
Trustee (and any transferee of the Letter of Credit) with respect to its use of
the Letter of Credit. Neither the Bank nor any of its officers or directors
shall be liable or responsible for: (a) the use which may be made of the Letter
of Credit or for any acts or omissions of the Trustee (or transferee) and any
beneficiary in connection therewith; (b) the validity, or genuineness of
documents, or of any endorsement(s) thereon, even if such documents should in
fact prove to be in any or all respects invalid, fraudulent or forged; or (c)
any other circumstances whatsoever in making or failing to make payment under
the Letter of Credit, except that the Company shall have a claim against the
Bank, and the Bank shall be liable to the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential, damages suffered by the
Company which were caused by: (y) the Bank's willful misconduct or gross
negligence in determining whether documents presented under the Letter of Credit
comply with the terms thereof; or (z) the Bank's willful failure to pay under
the Letter of Credit after the presentation to it by the Trustee (or a successor
trustee under the Indenture to whom the Letter of Credit has been transferred in
accordance with its terms) of a draft and certificate strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank may accept documents that appear on their
face to be in order without responsibility for further investigation.
Section X.8. Continuing Obligations; Revival of Obligations. The
obligations of the Company under this Reimbursement Agreement shall continue
until all amounts due and owing to the Bank hereunder as of the Termination Date
shall have been paid in full; PROVIDED, HOWEVER, that the obligations of the
Company pursuant to SECTIONS 10.1 and 10.2 hereof shall survive the termination
of this Reimbursement Agreement. The Company further agrees that to the extent
the Company makes a payment to the Bank, which payment or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver, or any other party under any
bankruptcy, insolvency or other similar state or federal statute, common law or
principles of equity, then, to the extent of such repayment by the Bank, the
Reimbursement Obligations or part thereof intended to be satisfied by such
payment shall be revived and continued in full force and effect as if such
payment had not been received by the Bank.
Section X.9. Confirmation of Lien. The Company hereby grants
to the Bank, to secure payment by the Company of sums due hereunder, a lien on
moneys or instruments (at such times as they become payable to the Company under
the Indenture) which the Company has an interest in or title to pursuant to
SECTIONS 4.1, 4.2 or 4.4 of the Indenture, now or hereafter held in the Bond
Fund, Bond Purchase Fund or Project Fund (as such terms are defined in the
Indenture) or otherwise by the Trustee under any provision of the Indenture and
in the right of the Company to receive any such moneys or instruments. The Bank
hereby confirms that such lien is and shall be junior and subordinate to the
lien on such moneys in favor of the holders of the Bonds and the Trustee.
Section X.10. Controlling Law. This Reimbursement Agreement has been
executed, delivered and accepted at, and shall be deemed to have been made in,
North Carolina and shall be interpreted in accordance with the internal laws (as
opposed to conflicts of laws provisions) of the State of North Carolina.
Section X.11. Successors And Assigns. This Reimbursement Agreement
shall be binding upon the Company, its successors and assigns and all rights
against the Company arising under this Reimbursement Agreement shall be for the
sole benefit of the Bank.
Section X.12. Assignment and Sale. Without the prior written consent of
the Bank, the Company may not sell, assign or transfer this Reimbursement
Agreement or any of the Related Documents or any portion hereof or thereof,
including without limitation the Company's rights, title, interests, remedies,
powers, and duties hereunder or thereunder.
Section X.13. Amendment. This Reimbursement Agreement can be amended or
modified only by an instrument in writing signed by the parties. The Company
must provide the Trustee with prior written notice of any amendment or
modification of SECTION 2.2(B).
Section X.14. Severability. In the event that any provision of this
Reimbursement Agreement shall be determined to be invalid or unenforceable by
any court of competent jurisdiction, such determination shall not invalidate or
render unenforceable any other provision hereof.
Section X.15. Entire Reimbursement Agreement. THIS REIMBURSEMENT
AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED
CONTEMPORANEOUSLY HEREWITH AND THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE
EMBODY THE ENTIRE REIMBURSEMENT AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS,
VERBAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF. THIS REIMBURSEMENT
AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH AND
THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE REPRESENT THE FINAL REIMBURSEMENT
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY PRIOR,
CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Section X.16. Counterparts. This Reimbursement Agreement may be
executed in several counterparts, each of which shall be an original and all of
which, together shall constitute but one and the same instrument.
Section X.17. Captions. The captions to the various sections and
subsections of this Reimbursement Agreement have been inserted for convenience
only and shall not limit or affect any of the terms hereof.
[The remainder of this page is left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this Reimbursement
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
▇▇▇▇, INC.
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
[Execution by the Bank appears on the following page.]
WACHOVIA BANK OF NORTH CAROLINA,
NATIONAL ASSOCIATION
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
EXHIBIT A
FIRST AMENDMENT TO
IRREVOCABLE LETTER OF CREDIT
NO. LC 968-068488
April ___, 1997
First-Citizens Bank & Trust Company, as Trustee
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Attention: Corporate Trust Department
Ladies and Gentlemen:
In accordance with the terms of the Reimbursement and Security
Agreement dated as of April 1, 1997 (the "Reimbursement Agreement"), between us
and ▇▇▇▇, Inc., a North Carolina corporation (the "Company"), Irrevocable Letter
of Credit No. 968-068488, issued in your favor on April 1, 1996, is hereby
amended as follows:
1. The first paragraph of the Letter of Credit is hereby
amended by deleting therefrom the reference to "the 1996 Amended and
Restated Credit Agreement, dated as of April 1, 1996, among the
Company, First Union National Bank of North Carolina, as agent, and us
(the "Credit Agreement")," and inserting in its place the following:
"the Reimbursement and Security Agreement dated as of April 1, 1997,
between us and the Company (the "Reimbursement Agreement")."
2. Subparagraph (i) of the first paragraph thereof is hereby
amended to read as follows:
(i) the close of business on March 1, 2001, or, if such date
is extended pursuant to SECTION 2.2(B) of the Reimbursement Agreement,
the date as so extended,
3. Subsection (c) of Section 10 of the Letter of Credit is
hereby amended to read as follows:
(c) all Reimbursement Obligations relating to this Letter of
Credit, including all Letter of Credit fees, shall have been paid in
full.
4. The text of Section 11 of the Letter of Credit is hereby
deleted in its entirety, and the word "[Reserved]" shall be inserted in
its place.
All other terms and conditions set forth in the Letter of Credit shall
remain in full force and effect.
Very truly yours,
WACHOVIA BANK OF NORTH CAROLINA, NATIONAL ASSOCIATION
By: ______________________________
Authorized Officer