IRREVOCABLE LETTER OF CREDIT
NO. 930300
April 16, 1997
Manufacturers and Traders
Trust Company, as Trustee
One M&T Plaza
Buffalo, New York 14203
Attention: Corporate Trust Department
Ladies and Gentlemen:
At the request and for the account of our customer, Berry
Plastics Corporation, a Delaware corporation (the "COMPANY"), we (the
"BANK") hereby issue in your favor our Irrevocable Letter of Credit No.
930300 in the amount of $5,226,028 (the "STATED AMOUNT"), effective
immediately and expiring at 5 p.m. (Dallas, Texas time) at our office on
January 20, 2002 (the "EXPIRATION DATE"). This Letter of Credit is
issued to you as trustee (the "TRUSTEE") under the Trust Indenture, dated
as of April 1, 1991 (the "INDENTURE"), between the City of Henderson,
Nevada Public Improvement Trust (the "ISSUER") and you, pursuant to which
$5,000,000 in aggregate principal amount of the Issuer's Variable Rate
Demand Refunding Bonds (Berry Plastics Corporation Project), Series 1991
(the "BONDS") are outstanding.
We hereby irrevocably authorize you to draw on us, in an
aggregate amount not to exceed the Stated Amount of the Letter of Credit
set forth above, and in accordance with the terms and conditions and
subject to the reductions in an amount as hereinafter set forth, the
following amounts by presentation to us of one or more of your sight
drafts referring thereon to the number of this Letter of Credit, together
with one or more of the following certificates duly completed by you and
purportedly signed by you (any such sight draft accompanied by any such
certificate being a "DRAFT"):
1. ANNEX A - Certificate for Drawing in Connection with the
Payment of up to 110 Days' Interest on the Variable Rate Demand
Refunding Bonds (Berry Plastics Corporation Project), Series 1991
("INTEREST DRAFT DRAWING") - in a single drawing (subject to the
reinstatement provisions contained in the next following paragraph)
(such draft accompanied by such certificate being your ("INTEREST
DRAFT") in an amount not exceeding $226,028;
2. ANNEX B - Certificate for Drawing in Connection with the
Payment of Purchase Price of (Including the Principal of and up to
110 Days' Interest on) the Variable Rate Demand Refunding Bonds
(Berry Plastics Corporation Project), Series 1991 in Support of a
Tender Pursuant to Section 114 of the Indenture ("TENDER DRAFT
DRAWING") - in one or more drawings (any such draft accompanied by
such certificate being your "TENDER DRAFT"), in an aggregate amount
not exceeding $5,226,028 (subject to reinstatement as provided in
this Letter of Credit);
3. ANNEX C - Certificate for Drawing in Connection with the
Payment of Principal of and up to 110 Days' Interest on the Variable
Rate Demand Refunding Bonds (Berry Plastics Corporation Project),
Series 1991 upon a Partial Redemption ("PARTIAL REDEMPTION DRAFT
DRAWING") - in one or more drawings (any such draft accompanied by
such certificate being your "PARTIAL REDEMPTION DRAFT"), in an
aggregate amount not exceeding $5,226,028; and
4. ANNEX D - Certificate for Drawing in Connection with the
Payment of Principal of and up to 110 Days' Interest on the Variable
Rate Demand Refunding Bonds (Berry Plastic Corporation Project),
Series 191, upon Stated and Accelerated Maturity, Purchase of All of
the Bonds or Optional or Mandatory Redemption as a Whole ("FINAL
DRAFT DRAWING") - in a single drawing (such draft accompanied by
such certificate being your "FINAL DRAFT"), in an amount not
exceeding $5,226,028.
If you shall draw on us by your Interest Draft under CLAUSE (1)
of the preceding paragraph and we shall not have sent to you within ten
calendar days from the date of such drawing a written notice from us to
the effect that an Event of Default has occurred under the Financing and
Security Agreement dated as of January 21, 1997 (as from time to time in
effect, the "Reimbursement Agreement"), between the Company and the Bank,
and that such amount, and your right to draw on us by an Interest Draft,
will not be reinstated, your right to draw on us in a single drawing by
your Interest Draft under CLAUSE (1) shall be automatically reinstated
and, effective the 11th calendar day from the date of such drawing, you
shall again be authorized to draw on us by your Interest Draft in
accordance with said CLAUSE (1) and the other terms and conditions
referred to or set forth in the immediately preceding paragraph; and this
automatic reinstatement of your right to draw on us by your Interest
Draft shall be applicable to each successive drawing by your Interest
Draft under CLAUSE (1) of the immediately preceding paragraph so long as
this Letter of Credit shall not have terminated as set forth below.
To the extent that Bonds are redeemed and paid with funds not
drawn under this Letter of Credit, the amount of this Letter of Credit
shall be decreased upon our receipt of your written and completed
certificate signed by you in substantially the form of ANNEX E attached
hereto (relating to a mandatory or optional redemption of less than all
of the Bonds outstanding), by an amount equal to the amount stated in
such certificate, and the amounts available to be drawn by you by any
subsequent Interest Draft, Tender Draft, Partial Redemption Draft or
Final Draft shall be decreased upon our receipt of such certificate, to
the amounts stated in such certificate.
Upon our honoring any Tender Draft presented by you hereunder,
the amount of this Letter of Credit and the amounts available to be drawn
hereunder by you by any subsequent Tender Draft, Partial Redemption Draft
and Final Draft shall be automatically decreased by an amount
corresponding to the amount of such Tender Draft. The amount of this
Letter of Credit and the amounts from time to time available to be drawn
by you hereunder by any Tender Draft, Partial Redemption Draft or Final
Draft shall be increased when and to the extent, but only when and to the
extent, that we have given you written notice that we have either (a)
been reimbursed by the Company or by you on behalf of the Company for any
amount drawn hereunder by any Tender Draft, or (b) received Pledged Bonds
(as defined in the Pledge Agreement dated as of April __, 1997, among the
Company, the Bank, you and the Remarketing Agent identified therein) in
aggregate principal amount equal to the principal amount of Bonds
purchased with the proceeds of such Tender Draft. Any amount received by
us from or on behalf of the Company in reimbursement of amounts drawn
hereunder shall, if accompanied by your completed and signed certificate
in substantially the form of ANNEX F attached hereto, be applied to the
extent of the amount indicated therein to reimburse us for amounts drawn
hereunder by your Tender Drafts.
Upon your honoring any Partial Redemption Draft presented by
you hereunder, the amount of this Letter of Credit and the amounts
available to be drawn by you hereunder by any subsequent Partial
Redemption Draft, Tender Draft or Final Draft shall be automatically and
permanently decreased by an amount corresponding to the principal amount
of Bonds to be redeemed and paid with the proceeds of such Partial
Redemption Draft (the "Principal Component Reduction"), plus an amount
that is equal to 110 days' interest on such Principal Component
Reduction, calculated at an assumed rate of 15% per annum and on the
basis of a 365-day year (the "Interest Component Reduction"). In
addition, the amount available to be drawn by you hereunder by any
subsequent Interest Draft will be automatically and permanently decreased
by the Interest Component Reduction.
Each Draft presented under this Letter of Credit shall refer
thereon to the number of this Letter of Credit and shall be dated the
date of its presentation, and shall be drawn and presented at our office
located at NationsBank of Texas, N.A., 901 Main Street, Dallas, Texas
75202, Attention: Mona Davis (or at any other office that may be
designated by us in writing at least three Banking Days prior to the date
on which a drawing is made hereunder), with a copy to NationsBank
Business Credit, 100 South Charles Street, 4th Floor, Baltimore, Maryland
21201, Attention: Vickie L. Tillman (or telecopied to (410) 576-2958),
it being understood that providing such a copy shall not constitute a
condition of drawing. Each Draft may be presented only on a Banking Day.
If we receive any of your Drafts at such office, all in strict conformity
with the terms and conditions of this Letter of Credit, not later than
11:00 a.m. (Dallas, Texas time) on a Banking Day prior to the
termination hereof, we will honor the same no later than 2:00 p.m.
(Dallas, Texas time) on the same day in immediately available funds in
accordance with your payment instructions. If we receive any of your
Drafts at such office, all in strict conformity with the terms and
conditions of this Letter of Credit, after 11:00 a.m. (Dallas, Texas
time) on a Banking Day prior to the termination hereof, we will honor the
same in immediately available funds no later than 2:00 p.m. (Dallas,
Texas time) on the next succeeding Banking Day in accordance with your
payment instruments. The term "Banking Day" means any day of the year
other than a Saturday, Sunday, legal holiday or a day on which banking
institutions in Dallas, Texas or in Buffalo, New York, are authorized or
required to close.
The Drafts you are required to submit to us may be submitted to
us in the form of a facsimile copy by telecopier to the Bank, Attention:
Mona Davis, telecopier no.: (214) 508-3928, with prior telephone notice
to such office at telephone no.: (214) 508-3153 (or at such other office
and telecopier and telephone numbers as we may designate to you in
writing), with a copy to NationsBank Business Credit, 100 South Charles
Street, 4th Floor, Baltimore, Maryland 21201, Attention: Vickie L.
Tillman (or telecopied to (410) 576-2958), it being understood that
providing such a copy shall not constitute a condition of drawing. By
acceptance of this Letter of Credit, you agree to send the same day the
originals of all telecopied Drafts to us, prominently marked to indicate
that they are originals of telecopied Drafts, by overnight courier for
next day delivery to our designated address for presentation of Drafts.
By paying you an amount demanded in accordance with this Letter
of Credit, we make no representation as to the correctness of the amount
demanded or your calculations and representations on the certificates
required of you by this Letter of Credit.
This Letter of Credit shall automatically expire on the
earliest to occur of (i) our honoring your Final Draft presented
hereunder, (ii) 15 days after the date on which we receive written notice
from you that the Bonds have been converted to a "Fixed Interest Rate"
within the meaning of the Indenture, (iii) the date on which we receive
written notice from you that an alternate letter of credit or other
credit facility has been substituted for this Letter of Credit in
accordance with the Indenture, (iv) the date on which we receive written
notice from you that there are no longer any Bonds "Outstanding" within
the meaning of the Indenture, (v) upon receipt by us of written notice
from the Company and the holders of all of the Bonds that are
"Outstanding" within the meaning of the Indenture that they are
exercising their option to terminate the Letter of Credit pursuant to
Section 111(c) of the Indenture, on the earlier of the date specified in
such notice and 15 days after we receive such written notice, together
with your certification that such holders constitute the holders of all
Outstanding Bonds, and (iv) the Expiration Date.
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, the
Reimbursement Agreement), except only the Annexes and Drafts referred to
herein; and any such reference shall not be deemed to incorporate herein
by reference any document, instrument or agreement except for such
Annexes and Drafts.
This Letter of Credit is transferable any number of times in
full but not in part. Transfer may be made to any entity whom you or any
transferee hereunder designate as a successor trustee under the Indenture
who is acceptable to us, provided that our acceptance of a successor
trustee shall not be unreasonably withheld and provided further that we
will promptly advise you of our acceptance or disapproval. Transfer of
the available drawing under this Letter of Credit to such transferee
shall be effected by the presentation to us of this Letter of Credit
accompanied by your instruction to transfer in the form of Annex G
attached to this Letter of Credit, and the payment of (x) $2,000 as a
transfer fee and (y) the Bank's costs and expenses incurred in connection
with such transfer. Upon presentation and payment, we shall forthwith
effect a transfer of this Letter of Credit to your designated transferee.
This Letter of Credit shall be governed by the laws of the
State of Maryland, including the Uniform Commercial Code as in effect in
the State of Maryland, except that Articles 16 and 20(b) of the Uniform
Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, shall govern
solely with respect to the presentation of Drafts by telecopy
transmission. Communications to us with respect to this Letter of Credit
other than presentations of Drafts and certificates hereunder shall be in
writing and shall be addressed to us at NationsBank Business Credit, 100
South Charles Street, 4th Floor, Baltimore, Maryland 21201, Attention:
Vickie L. Tillman (or telecopied to (410) 576-2958), with a copy to us
at NationsBank of Texas, N.A., 901 Main Street, Dallas, Texas 75202,
Attention: Mona Davis (or telecopied to (214) 508-3928), specifically
referring to the number of this Letter of Credit. Communications to you
with respect to this Letter of Credit shall be in writing and shall be
addressed to you at your address set forth above, specifically referring
to the number of this Letter of Credit and the Bonds.
Very truly yours,
NATIONSBANK, N.A.
By:
Name:
Title:
ANNEX A
INTEREST DRAFT DRAWING
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No. _____________
(the "Letter of Credit", the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by the Bank
in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The Trustee is making a drawing under the Letter of Credit
with respect to a payment of interest on the Bonds, which payment is
due on [PAYMENT DUE DATE]. None of the Bonds in respect of which
this drawing will be used to pay interest is held of record by the
Company or by the undersigned for the account of the Company.
3. [THE INTEREST DRAFT ACCOMPANYING THIS CERTIFICATE IS THE
FIRST INTEREST DRAFT PRESENTED BY THE TRUSTEE UNDER THE LETTER OF
CREDIT.] [OR] [THE INTEREST DRAFT LAST PRESENTED BY THE TRUSTEE
UNDER THE LETTER OF CREDIT WAS HONORED AND PAID BY THE BANK ON
________________, 19___, AND THE TRUSTEE HAS NOT RECEIVED A NOTICE
FROM THE BANK THAT AN EVENT OF DEFAULT HAS OCCURRED UNDER THE
REIMBURSEMENT AGREEMENT.]
4. The amount of the Interest Draft accompanying this
Certificate is $__________________. It was computed in compliance
with the terms and conditions of the Bonds and the Indenture, and
does not include any amount of interest which is included in any
Tender Draft, Partial Redemption Draft or Final Draft presented on
or prior to the date of this Certificate.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX B
TENDER DRAFT DRAWING
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No.
________________ (the "Letter of Credit", the terms defined therein and
not otherwise defined herein being used herein as therein defined) issued
by the Bank in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The Trustee is making a drawing under the Letter of Credit
with respect to the payment, upon an optional tender of all or less
than all of the Bonds which are Outstanding (as defined in the
Indenture), of the purchase price of (including the unpaid
principal amount of, and up to 110 days' accrued and unpaid
interest on) the Bonds to be purchased as a result of such tender
pursuant to the terms of Section 114 of the Indenture (other than
Bonds, or $ ______________ portions thereof, presently held of
record by the Company or by the Trustee for the account of the
Company), which payment is due on [payment due date].
3. The amount of the Tender Draft accompanying this
Certificate is equal to the sum of (i) $_______________ being drawn
in respect of the payment of the portion of the purchase price equal
to the unpaid principal of the Bonds being purchased and (ii)
$______________ being drawn in respect of the payment of the portion
of the purchase price equal to the accrued and unpaid interest on
such Bonds, and does not include any amount of interest which is
included in any Interest Draft, Partial Redemption Draft or Final
Draft presented on or prior to the date of this Certificate.
4. The amount of the Tender Draft accompanying this
Certificate was computed in compliance with the terms and conditions
of the Bonds and the Indenture and does not exceed the amount
available to be drawn by the Trustee under the Letter of Credit.
The Trustee acknowledges that, pursuant to the terms of the
Letter of Credit, upon the Bank's honoring of the Tender Draft
accompanying this Certificate, the amount of the Letter of Credit and the
amounts available to be drawn by the Trustee thereunder by any subsequent
Tender Draft, Partial Redemption Draft or Final Draft are automatically
decreased by an amount equal to the amount of such Tender Draft, subject
to reinstatement as provided in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX C
PARTIAL REDEMPTION DRAFT DRAWING
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No.
________________ (the "Letter of Credit", the terms defined therein and
not otherwise defined herein being used herein as therein defined) issued
by the Bank in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The Trustee is making a drawing under the Letter of Credit
with respect to the payment, upon a mandatory or optional redemption
of less than all of the Bonds which are Outstanding (as defined in
the Indenture) pursuant to the BOND FORM APPENDIX to the Indenture,
of the unpaid principal amount of, and up to 110 days' accrued and
unpaid interest on, Bonds to be redeemed.
3. The amount of the Partial Redemption Draft accompanying
this Certificate is equal to the sum of (i) $________________ being
drawn in respect of the payment of unpaid principal of Bonds to be
redeemed and (ii) $_______________ being drawn in respect of the
payment of up to 110 days' accrued and unpaid interest on such
Bonds, and does not include any amount of interest on the Bonds
which is included in any Interest Draft, Tender Draft or Final Draft
presented on or prior to the date of this Certificate.
4. The amount of the Partial Redemption Draft accompanying
this Certificate was computed in accordance with the terms and
conditions of the Bonds and the Indenture and does not exceed the
amount available to be drawn under the Letter of Credit.
5. This Certificate and the Partial Redemption Draft it
accompanies are dated, and are being presented to the Bank on, the
date on which the unpaid principal amount of, and accrued and unpaid
interest on, Bonds to be redeemed are due and payable under the
Indenture upon redemption of less than all of the Bonds which are
Outstanding (as defined in the Indenture).
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX D
FINAL DRAFT DRAWING
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No.
_________________ (the "Letter of Credit", the terms defined therein and
not otherwise defined herein being used herein as therein defined) issued
by the Bank in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The Trustee is making a drawing under the Letter of Credit
with respect to the payment, either as stated maturity, upon
acceleration, upon purchase of all of the Bonds pursuant to a
conversion to a fixed interest rate under Section 101 of the
Indenture or a mandatory purchase of all of the Bonds under Section
115 of the Indenture, or as a result of an optional or mandatory
redemption of all of the Bonds pursuant to the BOND FORM APPENDIX of
the Indenture, of the unpaid principal amount of, and up to 110
days' accrued and unpaid interest on, all of the Bonds which are
"Outstanding" within the meaning of the Indenture, which payment is
due on [payment due date].
3. The amount of the Final Draft accompanying this Certificate
is equal to the sum of (i) $__________ being drawn in respect of the
payment of unpaid principal of Bonds, and (ii) $__________ being
drawn in respect of the payment of up to 110 days' accrued and
unpaid interest on such Bonds, and does not include any amount of
interest on the Bonds which is included in any Interest Draft,
Tender Draft or Partial Redemption Draft presented on or prior to
the date of this Certificate.
4. The amount of the Final Draft accompanying this Certificate
was computed in accordance with the terms and conditions of the
Bonds and the Indenture and does not exceed the amount available to
be drawn by the Trustee under the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX E
CERTIFICATE FOR REDUCTION
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No.
_____________________ (the "Letter of Credit", the terms defined therein
and not otherwise defined herein being used herein as therein defined)
issued by the Bank in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The Trustee hereby notifies you that on or prior to the
date hereof $_____________________ principal amount of the Bonds
have been redeemed and paid pursuant to the Indenture. Such
redemption and payment was not effected with the proceeds of amounts
drawn under the Letter of Credit.
3. Following the redemption and payment referred to in
paragraph (2) above, the aggregate principal amount of all of the
Bonds which are "Outstanding" within the meaning of the Indenture is
$_____________________.
4. The maximum amount of interest, computed in accordance with
the terms and conditions of the Bonds and the Indenture, which could
accrue on the Bonds referred to in paragraph (3) above in any period
of 110 days is $_____________________.
5. The amount available to be drawn by the Trustee under the
Letter of Credit by any Interest Draft is reduced to
$_____________________ (such amount being equal to the amount
specified in paragraph (4) above) upon receipt by the Bank of this
Certificate.
6. The amount available to be drawn by the Trustee under the
Letter of Credit by any Tender Draft is reduced to
$_____________________ (such amount being equal to the sum of the
amounts specified in paragraphs (3) and (4) above) upon receipt by
the Bank of this Certificate.
7. The amount available to be drawn by the Trustee under the
Letter of Credit by any Partial Redemption Draft is reduced to
$_______________ (such amount being equal to the sum of the amounts
specified in paragraphs (3) and (4) above) upon receipt by the Bank
of this Certificate.
8. The amount available to be drawn by the Trustee under the
Letter of Credit by its Final Draft is reduced to $_______________
(such amount being equal to the sum of the amounts specified in
paragraphs (3) and (4) above) upon receipt by the Bank of this
Certificate.
9. The amount of the Letter of Credit is reduced to
$_______________ (such amount being equal to the sum of the amounts
specified in paragraphs (3) and (4) above) upon receipt by the Bank
of this Certificate.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX F
CERTIFICATE FOR REINSTATEMENT
The undersigned, a duly authorized officer of the undersigned
Trustee (the "Trustee"), hereby certifies to NationsBank, N.A. (the
"Bank"), with reference to Irrevocable Letter of Credit No.
_______________ (the "Letter of Credit", the terms defined therein and
not otherwise defined herein being used herein as therein defined) issued
by the Bank in favor of the Trustee, as follows:
1. The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
2. The amount of $___________ paid to you today by the Company
or by the Trustee on behalf of the Company is a payment made to
reimburse you or, pursuant to Sections 2.04 and 2.05 of the
Reimbursement Agreement for amounts drawn under the Letter of Credit
by Tender Drafts.
3. Of the amount referred to in paragraph (2), $___________
represents the aggregate principal amount of Bonds resold on behalf
of the Company.
4. Of the amount referred to in paragraph (2), $___________
represents accrued and unpaid interest on Bonds.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of __________________, 19___.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)
ANNEX G
INSTRUCTION TO TRANSFER
____________________, 19__
NationsBank of Texas, N.A.
901 Main Street
Dallas, Texas 75202
Attention: Mona Davis
Re: IRREVOCABLE LETTER OF CREDIT NO.
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
[Name of Transferee]
[Address]
all rights of the undersigned beneficiary to draw under the above-
captioned Letter of Credit (the "Letter of Credit"). The transferee has
succeeded the undersigned as Trustee under the Indenture (as defined in
the Letter of Credit).
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 accordance with UCP 500 sub Article 48(d), the undersigned
beneficiary hereby waives the right to refuse to allow you to advise
amendments to the Letter of Credit directly to the transferee.
Therefore, the transferee shall have the sole rights as beneficiary to
the Letter of Credit, including the sole right relating to any amendments
thereto whether now existing or hereafter made. All amendments are to be
advised directly to the transferee.
The Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you transfer
the Letter of Credit to our transferee or that, if so requested by the
transferee, you issue a new irrevocable letter of credit in favor of the
transferee with provisions consistent with the Letter of Credit.
Very truly yours,
MANUFACTURERS AND TRADERS TRUST COMPANY,
as predecessor Trustee
By:
[Name and Title]
cc: NationsBank Business Credit
100 South Charles Street
4th Floor
Baltimore, Maryland 21201
Attention: Vickie L. Tillman
(Telecopier No. (410) 576-2958)