REIMBURSEMENT AND SECURITY AGREEMENT
between
CULP, INC.,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Dated as of July 1, 1997
Relating To $8,500,000 Principal Amount
The Robeson County Industrial Facilities and Pollution Control
Financing Authority Tax-Exempt Adjustable Mode
Industrial Development Revenue Bonds
(Culp, Inc. Project) Series 1997
_____________________________________________
REIMBURSEMENT AND SECURITY AGREEMENT
THIS REIMBURSEMENT AND SECURITY AGREEMENT, dated as of July 1, 1997, is
made and entered into by and between CULP, 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, The Robeson County Industrial Facilities and Pollution Control
Financing Authority (the "Issuer"), intends to issue its Tax-Exempt
Adjustable Mode Industrial Development Revenue Bonds (Culp, Inc. Project)
Series 1997 in the aggregate principal amount of $8,000,000 (the "Bonds")
pursuant to an Indenture of Trust dated as of even date herewith (as the same
may be supplemented pursuant to its terms, the "Indenture"), between the
Issuer and First-Citizens Bank & Trust Company, as trustee (together with any
successors in trust, the "Trustee"); and
WHEREAS, pursuant to a Loan Agreement dated as of even date herewith
(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 will loan 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 Company has requested that the Bank issue an irrevocable, direct-pay
letter of credit substantially in the form of Exhibit A attached hereto and
by this reference made a part hereof (as the same may be amended from time to
time, the "Letter of Credit"); and
WHEREAS, the Company has also entered into a 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 issuing the Letter of Credit, the Company
and the Bank 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;
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 Paying Agent, 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 July 10, 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.
"Date of Issuance" means the date on which the Bonds are initially
issued.
"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, .40% 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
Less than 1.5 to 1.0 .35%
Equal to or greater than 1.5 to 1 but
Less than 2.3 to 1 .40%
Equal to or greater than 2.3 to 1 but
Less than 2.5 to 1 .50%
Greater than 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 Moody's 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 July 10, commencing July 10, 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 McGraw-Hill 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. Agreement to Issue Letter of Credit. Subject to the
terms and conditions hereinafter set forth, the Bank hereby agrees to issue
the Letter of Credit on the Date of Issuance. The Letter of Credit shall be
issued 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").
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 Paying Agent 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 Paying 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 Paying
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 each of the other Related Documents;
(ii) a closing certificate executed by a principal financial
officer of the Company to the effect that no Default has occurred and
is continuing under the Credit Agreement, and that the representations
and warranties of the Company contained in Article IV of the Credit
Agreement are true in all material respects on and as of the Closing
Date;
(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) the opinion of counsel for the Company dated the Date of
Issuance, addressed to it, in substantially the form attached to the
Placement Agreement as Exhibit-"D";
(v) the unqualified approving opinion of bond counsel in
substantially the form attached to the Offering Memorandum as
Appendix-"C";
(vi) the supplemental opinion of bond counsel in substantially
the form attached to the Placement Agreement as Exhibit-"A";
(vii) the opinion of counsel with respect to bankruptcy
preference issues as they relate to the Bonds in substantially the form
attached to the Placement Agreement as Exhibit-"B";
(viii) the opinion of counsel for the Issuer dated the Date of
Issuance in substantially the form attached to the Placement Agreement
as Exhibit "C";
(ix) certified copies of all approvals, authorizations, or
consents of, or notices to or registrations with, any Governmental
Authority required to be obtained, given or effected by the Company
with respect to the Bonds, any of the Related Documents or the Project;
and
(x) 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 sheets 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, the Letter of Credit, the Related Documents and
otherwise in connection with the issuance of the Bonds (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 S-105 or 362 or any
other relief pursuant to Bankruptcy Code S 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 Culp, Inc.
101 South Main Street
High Point, North Carolina 27261
Attention: Franklin N. Saxon
Telephone: (910) 888-6266
Telecopy: (910) 889-7089
Bank Wachovia Bank, National Association
Post Office Box 631
High Point, North Carolina 27261
Attention: Peter T. Callahan
Telephone: (910) 887-7641
Telecopy: (910) 887-7550
with copies to: Wachovia Bank, National Association
301 North Main Street
Winston-Salem, North Carolina 27150
Attention: International Department
Wachovia Bank, National Association
100 North Main Street
Winston-Salem, North Carolina 27101
Attention: Bond and Money Market
Group/Customer Services
Trustee First-Citizens Bank & Trust Company
2917 Highwoods Boulevard
Raleigh, North Carolina 27604
Attention: Corporate Trust Department
Telephone: (919) 755-7422
Facsimile: (919) 755-2025
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, Initial Fund or Bond Purchase 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.
CULP, INC.
By: ___________________________________
Name: __________________________________
Title: ________________________________
[Execution by the Bank appears on the following page.]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ____________________________________
Name: ___________________________________
Title: _________________________________
EXHIBIT A
IRREVOCABLE LETTER OF CREDIT
No. LC ___________
July __, 1997
First-Citizens Bank & Trust Company, as Trustee
2917 Highwoods Boulevard
Raleigh, North Carolina 27604
Attention: Corporate Trust Department
Ladies and Gentlemen:
1. We hereby establish, at the request and for the account of Culp,
Inc., a North Carolina corporation (the "Company"), in your favor, as Trustee
under the Indenture of Trust dated as of July 1, 1997 (the "Indenture")
between The Robeson County Industrial Facilities and Pollution Control
Financing Authority (the "Issuer") and the Trustee, pursuant to which
$8,000,000 in aggregate principal amount of the Issuer's Tax-Exempt
Adjustable Mode Industrial Development Revenue Bonds (Culp, Inc. Project)
Series 1997 (the "Bonds") are being issued, our Irrevocable Letter of Credit
No. LC ___-______ (the "Letter of Credit"), in the amount of $8,925,000 (as
more fully described below), effective immediately and expiring on the
earliest to occur of any of the following (the "Termination Date"): (i)-the
close of business on March 1, 2001, or, if such date is extended pursuant to
Section-2.2(b) of the Reimbursement and Security Agreement dated as of July
1, 1997 between the Company and us (the "Reimbursement Agreement"), the date
as so extended, (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 we honor
the draft drawn hereunder pursuant to Section 3.8(a)(iii) of the Indenture
following the occurrence of an Event of Default under the Indenture and an
acceleration, (v)-the date this Letter of Credit is surrendered to us for
cancellation, or (vi)-the date we honor the final drawing available hereunder.
2. We hereby irrevocably authorize you to draw on us in accordance
with the terms and conditions, and subject to reductions in amount and
reinstatement, as hereinafter set forth, by your drafts, an aggregate amount
not exceeding $8,500,000 (the "Letter of Credit Amount"), of which an
aggregate amount not exceeding $8,500,000 may be drawn upon with respect to
payment of principal of the Bonds or that portion of the purchase price of
Bonds tendered for purchase ("Purchase Price") corresponding to principal
(the "Letter of Credit Amount-Principal Component"), and of which an
aggregate amount not exceeding $425,000 (but no more than an amount equal to
accrued interest on the Bonds for the immediately preceding 120 days,
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) may be drawn upon with respect to payment of interest on
the Bonds or that portion of the Purchase Price of Bonds corresponding to
interest (the "Letter of Credit Amount-Interest Component"). The foregoing
maximum amounts comprising the Letter of Credit Amount-Principal Component
and the Letter of Credit Amount-Interest Component will be reduced upon
redemption of any Bonds as provided in Section 2.18 of the Indenture or upon
payment of Bonds at maturity or upon defeasance of any Bonds pursuant to
Article V of the Indenture, and in such circumstances you shall deliver to us
a certificate in the form of Exhibit-5 attached hereto.
3. Only you, as Trustee may make drawings under this Letter of
Credit. Upon the payment to you or your account of the amount specified in a
draft drawn hereunder, we shall be fully discharged of our obligation under
this Letter of Credit with respect to such draft, and we shall not thereafter
be obligated to make any further payments under this Letter of Credit in
respect of such draft to you or to any other person who may have made to you
or who makes to you a demand for purchase of, or payment of principal of or
interest on any Bond. Bonds that are registered in the name of, or held by
or for the account of the Company or are held or required to be held for our
benefit pursuant to Section 2.8(b) of the Indenture ("Pledged Bonds") shall
not be entitled to any benefit of this Letter of Credit.
4. The Letter of Credit Amount-Principal Component and the Letter of
Credit Amount-Interest Component, as the case may be, shall be reduced
immediately following our honoring any draft drawn hereunder to pay principal
of, or interest on, the Bonds, to pay the interest portion of the Purchase
Price of the Bonds, or to pay the principal portion of the Purchase Price of
the Bonds (a "Tender Drawing"), in each case by an amount equal to the amount
of such draft.
5. On the tenth calendar day following each drawing hereunder to pay
interest on the Bonds (including interest constituting a portion of the
Purchase Price of Bonds), the amount so drawn shall be reinstated to the
Letter of Credit Amount-Interest Component unless you shall have theretofore
received notice from us to the effect that (i)-we have not been reimbursed in
full by the Company for the amount of such drawing, together with interest,
if any, owing thereon pursuant to the Reimbursement Agreement or (ii)-an
Event of Default under the Reimbursement Agreement between the Company and us
has occurred and is then continuing.
6. Immediately upon our written notice to you that we have been
reimbursed for any loan or advance made by us to the Company, the proceeds of
which loan or advance were used by the Company to reimburse us for a Tender
Drawing hereunder, the amount so drawn shall be restored, as of the date of
the Tender Drawing, to the Letter of Credit Amount-Principal Component.
7. Subject to the provisions of paragraphs 5 and 6 hereof, drawings
hereunder honored by us shall not, in the aggregate, exceed the Letter of
Credit Amount, as reduced from time to time pursuant to the terms hereof.
8. Funds under this Letter of Credit are available to you against
(a) your draft payable on the date such draft is drawn on us, stating on its
face: "Drawn under Wachovia Bank of North Carolina, National Association
Irrevocable Letter of Credit No. LC ___-______"; (b)-if the drawing is being
made with respect to payment of principal of the Bonds, a certificate signed
by you in the form of Exhibit 1 attached hereto appropriately completed;
(c)-if the drawing is being made with respect to payment of interest on the
Bonds, a certificate signed by you in the form of Exhibit-2 attached hereto
appropriately completed; (d)-if the drawing is a Tender Drawing, a
certificate signed by you in the form of Exhibit-3 attached hereto
appropriately completed; and (e)-simultaneously with any Tender Drawing being
made hereunder, a certificate signed by you in the form of Exhibit-4 attached
hereto appropriately completed regarding the portion of the Purchase Price of
the Bonds corresponding to interest. Such draft(s) and certificate(s) shall
be dated the date of presentation, which shall be made at our office located
at 301-North Main Street, Winston-Salem, North Carolina 27150, Attention:
International Department (or any other office which may be designated by us
by written notice delivered to you). If we receive your draft(s) and
certificate(s) at such office, all in strict conformity with the terms and
conditions of this Letter of Credit, at or prior to 11:00 a.m.,
Winston-Salem, North Carolina time, on a Business Day on or prior to the
Termination Date, we will honor the same no later than 1:00-p.m.,
Winston-Salem, North Carolina time, on the same Business Day in accordance
with your payment instructions. If we receive your drafts and certificates
(as referenced in subparagraphs (a) through (e) above) after 11:00-a.m.,
Winston-Salem, North Carolina time, on a Business Day, on or prior to the
Termination Date, we will honor the same no later than 11:00 a.m.,
Winston-Salem, North Carolina time, on the next succeeding Business Day.
Advance notification of drawings under this Letter of Credit may be made by a
telecopy transmission of the documents described in the applicable
subparagraphs (a) through (e) above not less than one Business Day prior to
the date of presentation to Telecopier No. (910) 770-4058 (with transmission
confirmed by call to Telephone No. (910) 770-6456) or such other telecopier
and telephone numbers that we hereafter designate by written notice delivered
to you. If an advance notification of drawing is made by telecopier, it must
contain an additional certification by you that the originals of the draft
and the certificate on your letterhead manually signed by one of your
officers will be concurrently forwarded to us by express courier to reach us
by the date of payment. Payment under this Letter of Credit will be made
out of our funds and, if requested by you, will be made by wire transfer of
federal funds to your account with any bank which is a member of the Federal
Reserve System, or by deposit of immediately available funds into a
designated account that you maintain with us.
9. As used herein, the term "Business Day" shall mean any day on
which our office at which drawings on this Letter of Credit are made and the
offices of the Trustee, the Paying Agent, the Tender Agent, the Registrar and
the Remarketing Agent (as each term is defined in the Indenture) are each
open for business and on which The New York Stock Exchange is not closed.
10. Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to us at our office address set forth in or
designated pursuant to Paragraph 8 above and shall specifically refer to the
number of this Letter of Credit.
11. This Letter of Credit is transferable in its entirety (but not in
part) to any transferee who has succeeded you as Trustee under the Indenture
and may be successively so 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-6 attached hereto and payment of our
customary transfer fee.
12. 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 Bonds, the Indenture and the
Reimbursement Agreement), except the forms of the certificates and the drafts
referred to herein, and any such reference (except as aforesaid) shall not be
deemed to incorporate herein, any document, instrument or agreement except
for such certificates or drafts.
13. This Letter of Credit shall be governed by the Uniform Customs
and Practice for Documentary Credits, 1993 Revision, International Chamber of
Commerce Publication No. 500 or by subsequent Uniform Customs and Practice
for Documentary Credits fixed by subsequent Congresses of the International
Chamber of Commerce (the "UCP") and, to the extent not inconsistent with the
UCP, the laws of the State of North Carolina.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ______________________________
Authorized Officer
EXHIBIT 1
CERTIFICATE FOR THE PAYMENT OF PRINCIPAL OF
THE ROBESON COUNTY INDUSTRIAL FACILITIES AND
POLLUTION CONTROL FINANCING AUTHORITY
TAX-EXEMPT ADJUSTABLE MODE
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(CULP, INC. PROJECT) SERIES 1997
The undersigned, a duly authorized officer of First-Citizens Bank &
Trust Company (the "Trustee"), hereby certifies as follows to Wachovia Bank,
National Association (the "Bank") with reference to Irrevocable Letter of
Credit No. LC ___-______ (the "Letter of Credit") issued by the Bank in favor
of the Trustee. Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
(1) The Trustee is the Trustee under the Indenture.
(2) The Trustee is making a drawing under the Letter of Credit with
respect to the payment of principal of the Bonds in accordance
with Section 3.8 of the Indenture.
(3) The amount of principal of the Bonds which is due and payable (or
which has been declared to be due and payable) and with respect
to the payment of which the Trustee does not have available
amounts that pursuant to Section 4.1 of the Indenture are to be
applied to such payment prior to moneys drawn under the Letter of
Credit is $____________, and the amount of the draft accompanying
this Certificate does not exceed such amount of principal.
(4) The amount of the draft accompanying this Certificate does not
include any amount in respect of the principal amount of any
Pledged Bonds, does not exceed the amount available to be drawn
under the Letter of Credit in respect of payment of principal of
the Bonds and was computed in accordance with the terms and
conditions of the Bonds and the Indenture.
[(5) The draft accompanying this certificate is the final draft to be
drawn under the Letter of Credit with respect to principal and,
upon the honoring of such draft, the Letter of Credit will expire
in accordance with its terms and the Trustee will surrender the
Letter of Credit to the Bank.]*
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _______ day of _______________, _____.
FIRST-CITIZENS BANK & TRUST COMPANY, as
Trustee
By: _______________________________
[Name and Title]
* To be used only upon stated or accelerated maturity or optional or
mandatory redemption of the Bonds as a whole.
EXHIBIT 2
CERTIFICATE FOR THE PAYMENT OF INTEREST ON
THE ROBESON COUNTY INDUSTRIAL FACILITIES AND
POLLUTION CONTROL FINANCING AUTHORITY
TAX-EXEMPT ADJUSTABLE MODE
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(CULP, INC. PROJECT) SERIES 1997
The undersigned, a duly authorized officer of First-Citizens Bank &
Trust Company (the "Trustee"), hereby certifies as follows to Wachovia Bank,
National Association (the "Bank") with reference to Irrevocable Letter of
Credit No. LC ___-______ (the "Letter of Credit") issued by the Bank in favor
of the Trustee. Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
(1) The Trustee is the Trustee under the Indenture.
(2) The Trustee is making a drawing under the Letter of Credit with
respect to the payment of interest accrued on the Bonds in
accordance with Section 3.8 of the Indenture.
(3) The amount of interest on the Bonds which is due and payable (or
which has been declared to be due and payable) and with respect
to the payment of which the Trustee does not have available
amounts that pursuant to Section 4.1 of the Indenture are to be
applied to such payment prior to moneys drawn under the Letter of
Credit is $____________, and the amount of the draft accompanying
this Certificate does not exceed such amount of interest.
(4) The amount of the draft accompanying this Certificate does not
include any amount in respect of the interest on any Pledged
Bonds, does not exceed the amount available to be drawn under the
Letter of Credit in respect of payment of interest accrued on the
Bonds on or prior to their stated maturity date or to the
redemption date, as the case may be, and was computed in
accordance with the terms and conditions of the Bonds and the
Indenture.
[(5) The draft accompanying this certificate is the final draft to be
drawn under the Letter of Credit with respect to interest and,
upon the honoring of such draft, no Bonds shall remain
Outstanding (as defined in the Indenture), the Letter of Credit
will expire in accordance with its terms and the Trustee will
surrender the Letter of Credit to the Bank.]*
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ______ day of _______________.
FIRST CITIZENS BANK & TRUST COMPANY, as-Trustee
By: ___________________________________
[Name and Title]
______________
* To be used only upon stated or accelerated maturity or optional or
mandatory redemption of the Bonds as a whole.
EXHIBIT 3
CERTIFICATE FOR THE PAYMENT OF THAT PORTION OF
THE PURCHASE PRICE OF BONDS CORRESPONDING TO
PRINCIPAL OF THE ROBESON COUNTY INDUSTRIAL FACILITIES
AND POLLUTION CONTROL FINANCING AUTHORITY
TAX-EXEMPT ADJUSTABLE MODE
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(CULP, INC. PROJECT) SERIES 1997
The undersigned, a duly authorized officer of First-Citizens Bank-&
Trust Company (the "Trustee"), hereby certifies as follows to Wachovia Bank,
National Association (the "Bank") with reference to Irrevocable Letter of
Credit No. LC ___-______ (the "Letter of Credit") issued by the Bank in favor
of the Trustee. Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
(1) The Trustee is the Trustee under the Indenture.
(2) The Trustee is making a Tender Drawing under the Letter of Credit
pursuant to Section 3.8(a)(ii) of the Indenture with respect to
the purchase of Bonds corresponding to the principal of Bonds
tendered or deemed tendered pursuant to Section 2.6 of the
Indenture and not remarketed by the Remarketing Agent on or
before the date such Bonds are to be purchased.
(3) The amount of Purchase Price corresponding to principal of such
Bonds less the amount of monies on deposit in the Bond Purchase
Fund and available for the purchase of such Bonds as contemplated
in Section 2.6(g)(i) and (ii) of the Indenture is $____________
and the amount of the draft accompanying this Certificate does
not exceed such amount of principal.
(4) The amount of the draft accompanying this Certificate does not
exceed the amount available to be drawn under the Letter of
Credit in respect of the Purchase Price corresponding to
principal of such Bonds and was computed in accordance with the
terms and conditions of the Bonds and the Indenture.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ______ day of _______________.
FIRST CITIZENS BANK & TRUST COMPANY, as-Trustee
By: ___________________________________
[Name and Title]
P
EXHIBIT 4
CERTIFICATE FOR THE PAYMENT OF THAT PORTION OF
THE PURCHASE PRICE OF BONDS CORRESPONDING TO
INTEREST ON THE ROBESON COUNTY INDUSTRIAL FACILITIES
AND POLLUTION CONTROL FINANCING AUTHORITY
TAX-EXEMPT ADJUSTABLE MODE
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(CULP, INC. PROJECT) SERIES 1997
The undersigned, a duly authorized officer of First-Citizens Bank &
Trust Company (the "Trustee"), hereby certifies as follows to Wachovia Bank,
National Association (the "Bank") with reference to Irrevocable Letter of
Credit No. LC ___-______ (the "Letter of Credit") issued by the Bank in favor
of the Trustee. Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
(1) The Trustee is the Trustee under the Indenture.
(2) The Trustee is making a Tender Drawing under the Letter of Credit
pursuant to Section 3.8(a)(ii) of the Indenture simultaneously
herewith with respect to the purchase of Bonds corresponding to
principal on Bonds tendered or deemed tendered pursuant to
Section 2.6 of the Indenture and not remarketed by the
Remarketing Agent on or before the date such Bonds are to be
purchased.
(3) A portion of the Purchase Price of Bonds corresponding to
interest on such Bonds less the amount of monies on deposit in
the Bond Purchase Fund and available for the purchase of such
Bonds as contemplated in Section 2.6(g)(i) and (ii) of the
Indenture is $____________ and the amount of the draft
accompanying this Certificate does not exceed such amount of
interest.
(4) The amount of the draft accompanying this Certificate does not
exceed the amount available to be drawn under the Letter of
Credit in respect of the Purchase Price corresponding to interest
on such Bonds and was computed in accordance with the terms and
conditions of the Bonds and the Indenture.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ______ day of ______________, _____.
FIRST-CITIZENS BANK & TRUST COMPANY,
as Trustee
By: _______________________________
[Name and Title]
EXHIBIT 5
CERTIFICATE FOR THE PERMANENT
REDUCTION OF LETTER OF CREDIT AMOUNT
The undersigned, a duly authorized officer of First-Citizens Bank-&
Trust Company (the "Trustee"), hereby certifies as follows to Wachovia Bank,
National Association (the "Bank") with reference to Irrevocable Letter of
Credit No. LC ___-______ (the "Letter of Credit") issued by the Bank in favor
of the Trustee. Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
P
(1) The Trustee is the Trustee under the Indenture.
(2) The aggregate principal amount of the Bonds Outstanding (as
defined in the Indenture) has been reduced to $___________.
(3) The Letter of Credit Amount-Principal Component is hereby
correspondingly reduced to $___________.
(4) The Letter of Credit Amount-Interest Component is hereby reduced
to $____________ [calculated by multiplying the amount of the
principal amount in the last line of paragraph (2) hereof by 15%
and multiplying the product thereof by the quotient of 120
divided by 360] to reflect the amount of interest allocable to
the reduced amount of principal set forth in paragraph (3) hereof.
IN WITNESS WHEREOF, the Trustee has executed this Certificate as of the
______ day of _______________, ____.
FIRST-CITIZENS BANK & TRUST COMPANY,
as Trustee
By: _______________________________
[Name and Title]
EXHIBIT 6
INSTRUCTION TO TRANSFER
_______________, _____
Wachovia Bank, National Association
301 North Main Street
Winston-Salem, North Carolina 27150
Attention: International Department
Re: Irrevocable Letter of Credit No. LC ___-______
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
instructs you to transfer to:
___________________________________
(Name of Transferee)
___________________________________
(Address)
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeded the
undersigned as Trustee under the Indenture of Trust dated as of July 1, 1997,
between The Robeson County Industrial Facilities and Pollution Control
Financing Authority and First-Citizens Bank & Trust Company, as trustee.
By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee
until such transfer complies with the requirements of the Letter of Credit
pertaining to transfers.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of _____________, ___.
FIRST-CITIZENS BANK & TRUST COMPANY,
as Trustee
By: _______________________________
[Name and Title]