EXHIBIT 10(a)
CONFORMED COPY
$91,350,000
AMENDED AND RESTATED
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of February 28, 1995
among
NATIONAL MEDICAL ENTERPRISES, INC.,
as Account Party,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
THE BANK OF NEW YORK
BANKERS TRUST COMPANY and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
as Banks,
and
THE BANK OF NEW YORK
as Issuing Bank
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS
SECTION 1.01. Definitions................................ 3
SECTION 1.02. Certain Usages............................. 9
SECTION 1.03. Interpretation............................. 10
ARTICLE II. LETTER OF CREDIT FACILITY; PAYMENT
SECTION 2.01. The Letters of Credit...................... 10
ARTICLE III. FEES; PAYMENTS; COMPUTATIONS
SECTION 3.01. Fees....................................... 17
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Power; Authorization; Enforceable
Obligations................................ 19
SECTION 4.02. Incorporation By Reference................. 20
ARTICLE V. CONDITIONS PRECEDENT
SECTION 5.01. Conditions to Amendment and Restatement.... 20
SECTION 5.02. Conditions to Extensions of Letters of
Credit..................................... 23
ARTICLE VI. COVENANTS
SECTION 6.01. Incorporation By Reference................. 24
SECTION 6.02. Use of Proceeds, Ineligible Securities..... 25
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. Events of Default.......................... 25
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PAGE
ARTICLE VIII. THE ISSUING BANK
SECTION 8.01. Appointment and Authorization.............. 27
SECTION 8.02. Issuing Bank and Affiliates................ 28
SECTION 8.03. Action by Issuing Bank..................... 28
SECTION 8.04. Consultation with Experts.................. 28
SECTION 8.05. Liability of Issuing Bank.................. 28
SECTION 8.06. Indemnification............................ 29
SECTION 8.07. Credit Decision............................ 29
SECTION 8.08. Issuing Bank's Fee......................... 29
ARTICLE IX. THE COLLATERAL AGENT
SECTION 9.01. Appointment and Authorization.............. 30
SECTION 9.02. Collateral Agent and Affiliates............ 30
SECTION 9.03. Action by Collateral Agent................. 30
SECTION 9.04. Consultation with Experts.................. 30
SECTION 9.05. Liability of Collateral Agent.............. 30
................................................................. 31
SECTION 9.06. Successor Collateral Agent................. 31
ARTICLE X. CHANGE IN CIRCUMSTANCES
SECTION 10.01. Illegality................................. 31
SECTION 10.02. Taxes...................................... 32
SECTION 10.03. Capital Adequacy........................... 34
SECTION 10.04. Issuing Bank as Bank....................... 35
ARTICLE XI. MISCELLANEOUS
SECTION 11.01. Notices.................................... 35
SECTION 11.02. No Waivers................................. 35
SECTION 11.03. Expenses; Indemnification.................. 36
SECTION 11.04. Sharing of Set-Offs........................ 36
SECTION 11.05. Amendments and Waivers..................... 37
SECTION 11.06. Successors and Assigns..................... 38
SECTION 11.07. Collateral................................. 40
SECTION 11.08. Governing Law; Submission to Jurisdiction.. 40
SECTION 11.09. Counterparts; Integration.................. 40
SECTION 11.10. WAIVER OF JURY TRIAL....................... 41
ii
EXHIBIT A - FORM OF SERIES A LETTER OF CREDIT
EXHIBIT B - FORM OF SERIES B LETTER OF CREDIT
EXHIBIT C - AMENDMENT OF SERIES A LETTER OF CREDIT
EXHIBIT D - AMENDMENT OF SERIES B LETTER OF CREDIT
EXHIBIT E - SECURITIES PLEDGE AND SECURITY AGREEMENT
EXHIBIT F - OFFICER'S CERTIFICATE AS TO CONTINUED ACCURACY OF
REPRESENTATIONS AND NO DEFAULT
EXHIBIT G - OPINION OF SPECIAL COUNSEL TO THE COMPANY
EXHIBIT H - OPINION OF INTERNAL COUNSEL TO THE COMPANY
EXHIBIT I - OPINION OF SPECIAL CAYMAN ISLANDS COUNSEL TO
NME INTERNATIONAL (CAYMAN) LIMITED
iii
AMENDED AND RESTATED
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
AGREEMENT dated as of February 28, 1995 among NATIONAL MEDICAL
ENTERPRISES, INC., as account party (the "COMPANY"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, BANKERS TRUST COMPANY and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Banks, and THE BANK OF NEW YORK,
as the Issuing Bank.
BACKGROUND
On December 21, 1989, the Company, by and through its wholly owned
subsidiary NME Hospitals, Inc. ("HOSPITALS"), requested Metrocrest Hospital
Authority ("MHA") to refinance certain existing bonds of MHA, dated as of
August 1, 1982 (the "PRIOR BONDS"), issued pursuant to that certain Indenture
of Mortgage and Deed of Trust, dated as of August 1, 1982, providing for the
issuance of up to $68,000,000 in Prior Bonds, to finance the cost of the premium
paid to redeem the Prior Bonds, and to finance a portion of the cost of
acquiring, constructing, improving, maintaining and equipping certain hospital
facilities known as the RHD Memorial Medical Center and the Trinity Medical
Center owned by MHA and constructing a parking garage and medical office
building at the RHD Memorial Medical Center (the "PROJECT").
MHA elected to accomplish such financing and refinancing of the Prior
Bonds and financing of the Project through the issuance of the Bonds pursuant to
the terms of that certain Indenture of Mortgage and Deed of Trust, dated as of
December 1, 1989, as amended and restated pursuant to the Amended and Restated
Indenture of Mortgage and Deed of Trust, dated as of November 1, 1994 (as the
same may be further amended, modified or supplemented from time to time, the
"INDENTURE"). Hospitals and MHA entered into that certain Fourth Amendment
and Restatement of Lease Agreement, dated as of December 21, 1989, as amended
and restated pursuant to the Fifth Amendment and Restatement of Lease Agreement,
dated as of November 1, 1994 (as the same may be further amended, modified or
supplemented from time to time, the "LEASE AGREEMENT"), providing for the
lease by Hospitals of the RHD Memorial Medical Center and the Trinity Medical
Center, as described in the Lease Agreement. The interest of Hospitals in and
to the Lease Agreement has been assigned by Hospitals to NME Hospitals Dallas,
Inc. (a Delaware corporation wholly owned by Hospitals (the "LESSEE")). The
obligations of the Lessee under the Lease Agreement were
unconditionally guaranteed by the Company and Hospitals pursuant to the terms of
that certain Second Amendment and Restatement of Lease Guaranty, dated as of
December 21, 1989, as amended and restated pursuant to the Third Amendment and
Restatement of Lease Guaranty, dated as of November 1, 1994 (as the same may be
further amended, and the Guaranty of Lease Obligations of even date therewith as
each may be modified or supplemented from time to time, collectively the "LEASE
GUARANTY") executed by the Company and Hospitals. In connection with the
foregoing, the Company and The Sanwa Bank Limited, acting through its Dallas
agency ("Sanwa"), entered into that certain Letter of Credit and Reimbursement
Agreement, dated as of December 21, 1989 wherein Sanwa agreed to issue, upon the
terms and conditions set forth therein, its direct pay letters of credit (the
"SANWA LETTERS OF CREDIT") to provide for the payment of the Bonds.
MHA and Texas Commerce Bank National Association (as trustee under the
Indenture, the "TRUSTEE") have entered into the amendment and restatement of
the Indenture referred to above. Contemporaneously therewith, the Company
requested, and MHA consented to, the substitution of the Sanwa Letters of Credit
with the Letters of Credit (as hereinafter defined), which were issued by the
Issuing Bank under the $91,350,000 Letter of Credit and Reimbursement Agreement
dated as of November 1, 1994 among the Company as Account Party, the Banks and
the Issuing Bank (as amended prior to the Closing Date (as hereinafter defined),
the "ORIGINAL AGREEMENT") and the Company and Hospitals entered into the Third
Amendment and Restatement of Lease Guaranty to guarantee payment of the "Lease
Obligations" as defined therein.
Prior to the Closing Date, the Company will enter into a $2,300,000,000
Credit Agreement dated as of February 28, 1995 among the Company, the lenders
party thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America
National Trust and Savings Association, The Bank of New York and Bankers Trust
Company, as Arranging Agents, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (the "▇▇▇▇▇▇ Credit Agreement"). The Company has requested
that the Original Agreement be amended and restated in its entirety as provided
herein and that the Letters of Credit be amended to refer to this Agreement as
so amended and restated, and the Issuing Bank and the other Banks are willing to
do so, on the terms and conditions set forth herein;
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. DEFINITIONS.
The following terms, as used herein, have the following meanings:
"ACCURATE AND COMPLETE" means, when referring to any representation
and warranty, that such representation and warranty is true in all material
respects and that the Company, or MHA, as the case may be, has not failed to
disclose to the Banks in writing any fact which if not disclosed to the Banks
would make the facts actually stated materially misleading.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Issuing Bank and
submitted to the Issuing Bank, with a copy to the Company, duly completed by
such Bank.
"AFFILIATE" means, as to any Person, any Person directly or indirectly
controlling, controlled by or under common control with such Person, whether
through the ownership of voting securities, by contract or otherwise.
"AGREEMENT" means the Original Agreement as originally executed, as
amended and restated as set forth herein and as the same may be further amended,
restated, supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE" means, on any date, a rate of interest per annum
equal to the higher of (i) the BNY Rate in effect on such date or (ii) 1/2 of
1% plus the Federal Funds Rate in effect on such date.
"APPLICABLE CREDIT OFFICE" means, with respect to any Bank, its office
located at its address set forth in its Administrative Questionnaire or such
other office as such Bank may hereafter designate as its Applicable Credit
Office by notice to the Company and the Issuing Bank.
"ASSIGNEE" has the meaning set forth in Section 11.06(c).
"BANK" means each bank listed on the signature pages
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hereof, each Assignee which becomes a Bank pursuant to Section 11.06(c), and
their respective successors.
"BNY RATE" means a rate of interest per annum equal to the rate of
interest publicly announced from time to time in New York City by the Issuing
Bank as its prime commercial lending rate, such rate to be adjusted
automatically (without notice) on the effective date of any change in such
publicly announced rate.
"BOND DOCUMENT" has the meaning set forth in Section 7.01(g) hereof.
"BONDS" mean the Series A Bonds and the Series B Bonds (as hereinafter
described) authenticated and delivered under the Indenture and the Remarketing
Agreement and any additional bonds authenticated and issued under the Indenture
after the date hereof. The "SERIES A BONDS" shall mean the Bonds in the
aggregate principal amount on the date hereof of $68,600,000, maturing on August
1, 2007, the proceeds of which were used to redeem the Prior Bonds, to finance
the cost of the premium paid to redeem the Prior Bonds, and, to the extent of
any remaining Series A Bond proceeds, to pay the costs and expenses associated
with the issuance of the Bonds. The "SERIES B BONDS" shall mean the Bonds in
the maximum aggregate principal amount on the date hereof of $22,750,000,
maturing on August 1, 2008, the proceeds of which were used to finance a portion
of the Project and to pay any remaining costs and expenses associated with the
issuance of the Bonds that were not paid out of the Series A Bond proceeds.
"BUSINESS DAY" means any day other than (1) a Saturday or a Sunday or
(2) a legal holiday or the equivalent on which banking institutions generally
are authorized or required to close in New York, New York or in the city in
which is located (a) the principal corporate trust office of the Trustee, the
Tender Agent or the Remarketing Agent or (b) the office of the Issuing Bank or
of its agent at which drafts or claims for payment under the Letters of Credit
are to be presented, or (3) a day on which the New York Stock Exchange is
closed.
"CLOSING DATE" means the date this Agreement is amended and restated
in accordance with Section 5.01.
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"COLLATERAL AGENT" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in
its capacity as Collateral Agent under the Security Agreement, and its
successors in such capacity.
"COMMITMENT" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on Schedule I hereto as its Commitment, as such
Commitment may be reduced from time to time.
"COMPANY" means National Medical Enterprises, Inc., a Nevada
corporation, and its successors.
"DEFAULT" means any of the events specified in Article VII, whether or
not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"EVENT OF DEFAULT" means any of the events specified in Article VII,
PROVIDED that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"EXTENDED AMOUNT" has the meaning set forth in Section 2.01(c)
hereof.
"EXTENSION DATE" has the meaning set forth in Section 2.01(l) hereof.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, PROVIDED that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to The Bank
of New York on such day on such transactions as determined by the Issuing Bank.
"INDEMNITEE" has the meaning set forth in Section 11.03(b).
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"INDENTURE" has the meaning set forth in the Background section
hereof.
"INELIGIBLE SECURITIES" means securities which may not be underwritten
or dealt in by member banks of the Federal Reserve System under Section 16 of
the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
"ISSUING BANK" means The Bank of New York in its capacity as issuer of
the Letters of Credit and as agent for the Banks, and its successors in such
capacity.
"L/C BANK ACCOUNT" means GL Account 111115, Funds Transfer Area,
Attention: Standby Letter of Credit Department, Trefik A. Antonio, Ref: L/C Nos.
S00013638, S00013639, at The Bank of New York, ABA No. ▇▇▇▇▇▇▇▇▇.
"L/C PAYMENT" means any payment by the Issuing Bank under any of the
Letters of Credit.
"LEASE AGREEMENT" has the meaning set forth in the Background section
hereof.
"LEASE GUARANTY" has the meaning set forth in the Background section
hereof.
"LESSEE" has the meaning set forth in the Background section hereof.
"LETTER OF CREDIT FEE" means the LC Fee Rate (as defined in the ▇▇▇▇▇▇
Credit Agreement).
"LETTER OF CREDIT FRONTING FEE" means 25 basis points per annum.
"LETTERS OF CREDIT" means (i) prior to the closing on the Closing
Date, those two certain irrevocable direct pay letters of credit originally
issued by the Issuing Bank in favor of the Trustee for the account of the
Company under the Original Agreement, in the form of Exhibits A and B,
respectively, and (ii) after the closing on the Closing Date, said two letters
of credit as amended on the Closing Date by amendments substantially in the form
of Exhibit C and Exhibit D, respectively. Said letters of credit, as
originally issued and as amended from time to time, are herein referred to as
the "Series A L/C" and "Series ▇ ▇/C", respectively.
"MARGIN STOCK" has the meaning assigned to the term
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"margin stock" in subsection 221.2(h) of Regulation U of the Board of Governors
of the Federal Reserve System, as the same may be amended, supplemented or
modified from time to time.
"▇▇▇▇▇▇ CREDIT AGREEMENT" has the meaning set forth in the Background
section hereof.
"OBLIGATIONS" mean any and all of the debts, obligations and
liabilities of the Company provided for or arising under this Agreement
(including, without limitation the Reimbursement Obligations and the obligation
to pay interest thereon), whether now existing or hereafter arising, voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased, extinguished and
later increased, created or incurred.
"ORIGINAL AGREEMENT" has the meaning set forth in the Background
section hereof.
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARTICIPANT" has the meaning set forth in Section 11.06(b).
"PERSON" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture or
other entity or a government or any agency or political subdivision thereof.
"PRINCIPAL DRAWING" means a drawing (other than a Tender Drawing)
under either Letter of Credit in respect of the payment of the principal of the
Bonds.
"PRIOR BONDS" has the meaning set forth in the Background section
hereof.
"PROJECT" has the meaning set forth in the Background section hereof.
"PURCHASE DATE" has the meaning set forth in the Indenture.
"REIMBURSEMENT OBLIGATION" means any obligation of the Company to
reimburse the Issuing Bank for a drawing under a Letter of Credit or any portion
of any such obligation to which a Bank has become subrogated pursuant to Section
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2.01(e).
"REMARKETING AGENT" means the Remarketing Agent named as such under
the Indenture, until a substitute Remarketing Agent becomes such pursuant to and
in accordance with the terms of the Indenture, and thereafter "REMARKETING
AGENT" shall mean such successor or any further successor thereto.
"REMARKETING AGREEMENT" means the Remarketing Agreement dated as of
November 1, 1994, among the Remarketing Agent and the Company, as the same may
be amended, modified or supplemented from time to time.
"REQUIRED BANKS" means at any time (i) Banks having at least 51% of
the aggregate amount of the Commitments or (ii) if the Commitments shall have
been terminated, Banks holding unpaid Reimbursement Obligations that comprise at
least 51% of the aggregate unpaid principal amount of all the Reimbursement
Obligations outstanding at such time.
"SECTION 20 SUBSIDIARY" means a subsidiary of the bank holding company
controlling any Bank, which subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
"SECURED PARTIES" has the meaning set forth in the Security Agreement.
"SECURED OBLIGATIONS" has the meaning set forth in the Security
Agreement.
"SECURITIES PLEDGE AND SECURITY AGREEMENT" means the Securities Pledge
and Security Agreement dated as of November 1, 1994, among the Company, the
Trustee and the Issuing Bank, as originally executed in the form of Exhibit E
and as the same may be amended, restated, modified or supplemented from time to
time.
"SECURITY AGREEMENT" means a Security Agreement among the Company,
N.M.E. International (Cayman) Limited and the Collateral Agent, substantially in
the form of Exhibit B to the ▇▇▇▇▇▇ Credit Agreement, as such agreement may be
amended from time to time in accordance with the terms thereof.
"SERIES A L/C" has the meaning set forth in the definition of "Letters
of Credit".
"SERIES ▇ ▇/C" has the meaning set forth in the
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definition of "Letters of Credit".
"SUBSIDIARY" means any corporation of which more than 50% of the
outstanding shares of stock of each class having ordinary voting power (other
than stock having such power only by reason of the happening of a contingency)
is at the time owned by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries.
"TEMPORARY CASH INVESTMENTS" means any investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated at least A-1 by Standard & Poor's Ratings Group and at least P-1 by
▇▇▇▇▇'▇ Investors Service, Inc. or (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized under the laws of the United States
or any state thereof and has capital, surplus and undivided profits aggregating
at least $1,000,000,000, PROVIDED in each case that such investment matures
within 30 days from the date of acquisition thereof by the Issuing Bank.
"TENDER DRAWING" means a drawing under either Letter of Credit in
respect of the payment of the purchase price of Bonds purchased by the Tender
Agent (as defined in the Indenture) for the account of the Company pursuant to
the Indenture.
"TERMINATION DATE" means the date which is five Business Days prior to
the "Final Maturity Date" under and as defined in the ▇▇▇▇▇▇ Credit Agreement.
"TRUSTEE" has the meaning set forth in the Background section hereof.
"UNITES STATES" means the United States of America, including the
states thereof and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. CERTAIN USAGES.
The words "HEREOF", "HEREIN", and "HEREUNDER" and words of similar
import, when used in this Agreement shall refer to this Agreement as a whole,
including all Exhibits and Schedules hereto and not to any particular provision
of this Agreement.
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SECTION 1.03. INTERPRETATION.
All references in this Agreement to any other agreement or instrument
shall mean such other agreement or instrument as the same may be amended,
restated, extended, supplemented or otherwise modified from time to time.
ARTICLE II. LETTER OF CREDIT FACILITY; PAYMENT
SECTION 2.01. THE LETTERS OF CREDIT.
(a) LETTERS OF CREDIT ISSUED.
Prior to the date hereof, pursuant to the Original Agreement, the
Issuing Bank issued the Letters of Credit in favor of the Trustee for the
benefit of the holders of the Bonds and for the account of the Company, to
provide a source of funds for the payment of the principal or the purchase price
of the Bonds. On the Closing Date, the Letters of Credit shall be amended by
amendments in the forms of Exhibits C and D hereto, respectively. The Series A
L/C was issued in the original face amount of $68,600,000 (Sixty Eight Million
Six Hundred Thousand Dollars) as such amount may be decreased pursuant to
Section IV of the Series A L/C, and, except in connection with reinstatement as
hereinafter provided, will not be increased. The Series ▇ ▇/C was issued in the
original face amount of $22,750,000 (Twenty Two Million Seven Hundred Fifty
Thousand Dollars), as such amount may be decreased pursuant to Section D of
the Series ▇ ▇/C, and, except in connection with reinstatement as hereinafter
provided, will not be increased. All amounts disbursed by the Issuing Bank
pursuant to draws under the Letters of Credit shall be from the Issuing Bank's
own funds.
(b) REIMBURSEMENT OF L/C PAYMENTS; INTEREST ON PAST DUE AMOUNTS.
Except as provided in Section 2.01(c) hereof, the Company agrees that
following each L/C Payment it will immediately reimburse the Issuing Bank for
the full amount of such L/C Payment, such reimbursement to be made on the date
such L/C Payment is made. The Company agrees that it will pay to the Issuing
Bank on demand interest on the amount of any L/C Payment which is not paid when
due from and including the date such L/C Payment is due to but excluding the
date of payment thereof at a rate per annum equal to the lesser of (a) the
Alternate Base Rate plus 2%, and (b) the highest
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lawful rate in effect from time to time under applicable law. The obligation of
the Company to reimburse the Issuing Bank for any L/C Payment, and to pay
interest thereon, is and shall be absolute, irrevocable and unconditional under
any and all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which the Company may have against the
Trustee, the holder of any Bond, the Banks or any other Person.
(c) DEFERRAL OF PAYMENTS.
If any Bond is purchased with the proceeds of a Tender Drawing and such
Bond is not remarketed on the same day such Tender Drawing is made, the Company
will reimburse the Issuing Bank the amount of such Tender Drawing (the
"EXTENDED AMOUNT") on or before 2:00 p.m., New York City time, on the earlier
to occur of (i) the day such Bond is remarketed and (ii) the earlier of (a) the
thirtieth (30th) day following the day such Tender Drawing is made or (b) the
Termination Date, in either case notwithstanding the provisions of Section
2.01(b) hereof, but subject to the provisions of Article VII hereof. The
Extended Amount will bear interest from the date of such Tender Drawing at a per
annum rate equal to, subject to Section 2.01(b), the Alternate Base Rate, such
interest to be payable monthly in arrears on the last Business Day of each
calendar month.
(d) REMARKETING OF BONDS.
Subject to the terms hereof, the Issuing Bank hereby consents to the
remarketing of the Bonds and, provided that no Default or Event of Default shall
have occurred and be continuing, the periodic repurchase and remarketing thereof
pursuant to the terms of the Indenture and the Remarketing Agreement.
(e) PAYMENTS BY BANKS WITH RESPECT TO LETTERS OF CREDIT.
(i) Each Bank shall make available an amount equal to its ratable share
of any drawing under a Letter of Credit, which is not repaid to the Issuing Bank
by the Company as required by this Agreement in Federal or other funds
immediately available in New York City, to the Issuing Bank by 3:00 p.m (New
York City time) on the Business Day following the required date for payment of
such drawing by the Company, together with interest on such drawing to but
excluding the day such payment is due from such Bank at the Federal Funds Rate
for such day, at the Issuing Bank's
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address specified in or pursuant to Section 11.01; PROVIDED each Bank's
obligation shall be reduced by its pro rata share of any reimbursement
theretofore paid by the Company in respect of such drawing pursuant to Section
2.01(b) or (c). The Issuing Bank shall notify each Bank of the amount of such
Bank's obligation in respect of any drawing under a Letter of Credit not later
than 1:00 p.m. (New York City time) on the day such payment by such Bank is due.
Upon payment in full thereof, each Bank shall be subrogated to the rights of the
Issuing Bank against the Company to the extent of such Bank's pro rata share of
the related Reimbursement Obligation (including interest accrued thereon).
(ii) If any Bank fails to pay any amount required pursuant to subclause
(i) of this clause (a) on the date on which such payment is due, interest shall
accrue on such Bank's obligation to make such payment, for each day from and
including the date such payment becomes due to but excluding the date such Bank
makes such payment, whether before or after judgment, at a rate per annum equal
to (A) in the case of each day from and including the day such payment is due
through and including the first succeeding Business Day (and any intervening
days), the Federal Funds Rate for each such day as determined by the Issuing
Bank and (B) for each day thereafter, the sum of 2% plus the Base Rate for such
day. Any payment made by any Bank after 3:00 p.m., New York City time, on any
Business Day shall be deemed for purposes of the preceding sentence to have been
made on the next succeeding Business Day.
(iii) If the Company shall reimburse the Issuing Bank for any drawing
under a Letter of Credit after any Bank shall have made funds available to the
Issuing Bank with respect to such drawing in accordance with subclause (i) of
this clause (e), the Issuing Bank shall promptly upon receipt of such
reimbursement distribute to such Bank its pro rata share thereof, including
interest, to the extent received by the Issuing Bank.
(iv) The obligations of each Bank under this Section 2.01(e) shall be
absolute and unconditional under any and all circumstances, irrespective of any
set-off, counterclaim, or defense to payment which such Bank may have or have
had against the Issuing Bank, the beneficiary of any Letter of Credit, the
Company or any other Person and irrespective of any Default or Event of Default.
(f) PAYMENT UPON ACCELERATION. If the Issuing Bank
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directs the Company pursuant to Section 7.02(a) to make the payment required by
this clause (f), the Company shall pay to the Issuing Bank for application to
drawings under any then outstanding Letters of Credit an amount equal to the
aggregate amount which is then, or may thereafter (under any contingency)
become, available for drawing under such Letters of Credit. The Issuing Bank
shall invest any amount paid to it pursuant to the first sentence of this clause
(f) in Temporary Cash Investments. Any amount paid by the Company to the
Issuing Bank pursuant to the first sentence of this clause (f) with respect to a
Letter of Credit and not applied to a drawing thereunder (together with interest
or other income, to the extent received by the Issuing Bank on the related
Temporary Cash Investments) shall, as promptly as practicable after such Letter
of Credit expires or is fully drawn and all related Obligations (together with
all interest accrued thereon, whether or not allowed or allowable as a claim in
a proceeding referred to in clause (g) or (h) of Section 7.01) are paid, be
applied by the Issuing Bank to pay any other amounts then due and payable by the
Company hereunder. When all such amounts shall have been paid in full, the
Issuing Bank shall repay the remaining balance, if any, to the Company.
(g) INCREASED COST AND REDUCED RETURN. If, on or after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank or the Issuing Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any tax, reserve, special
deposit or similar requirement against or with respect to or measured by
reference to letters of credit or participations therein, and the result of any
of the foregoing is to increase the cost to such Bank or the Issuing Bank of
issuing or maintaining any Letter of Credit or any participation therein, or to
reduce any amount receivable by any Bank or the Issuing Bank under this Section
2.01 in respect of any Letter of Credit or any participation therein (which
increase in cost, or reduction in amount receivable, shall be the result of such
Bank's or the Issuing Bank's reasonable allocation of the aggregate of such
increases or reductions resulting from such event), then, within 15 days after
demand by such Bank or the Issuing Bank, the Company agrees to pay to such Bank
or the Issuing Bank,
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from time to time as specified by such Bank or the Issuing Bank, such additional
amounts as shall be sufficient to compensate such Bank or the Issuing Bank for
such increased cost or reduction. A certificate of such Bank or the Issuing
Bank submitted to the Company pursuant to this Section 2.01(g) and setting forth
the additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error.
(h) EXCULPATORY PROVISIONS. The Company's obligations under this
Section 2.01 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Company may have or have had against the Issuing Bank, any Bank, the beneficiary
of any Letter of Credit or any other Person. The Company assumes all risks of
the acts or omissions of any beneficiary of any Letter of Credit with respect to
its use of such Letter of Credit. The Company agrees that the Issuing Bank and
the Banks and their respective officers, directors, employees and agents shall
not be responsible for, and the obligations of each Bank to make payments (other
than obligations of such Bank resulting solely from the gross negligence or
willful misconduct of the Issuing Bank), and of the Company to reimburse the
Issuing Bank for drawings, pursuant to this Section shall not be excused or
affected by, among other things, (i) the use which may be made of any Letter of
Credit or any acts or omissions of either beneficiary or any transferee in
connection therewith; (ii) the validity, sufficiency or genuineness of documents
presented under any Letter of Credit or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii) payment by the Issuing Bank against
presentation of documents to the Issuing Bank which do not comply with the terms
of any Letter of Credit or (iv) any dispute between or among the Company, any of
its Subsidiaries, the beneficiary of any Letter of Credit or any other Person or
any claims or defenses whatsoever of the Company, any of its Subsidiaries or any
other Person against the beneficiary of any Letter of Credit. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Company agrees that
any action taken or omitted by the Issuing Bank or any Bank under or in
connection with any Letter of Credit and the related drafts and documents, if
done without willful misconduct or gross negligence, shall be binding upon the
Company and shall not place the Issuing Bank
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or any Bank under any liability to the Company.
(i) RELIANCE, ETC. To the extent not inconsistent with Section
2.01(h), the Issuing Bank shall be entitled to rely, and shall be fully
protected in relying upon advice and statements of legal counsel, independent
accountants and other experts selected by the Issuing Bank and upon any Letter
of Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
unless the beneficiary and the Company shall have notified the Issuing Bank that
such documents do not comply with the terms and conditions of such Letter of
Credit. The Issuing Bank shall be fully justified in refusing to take any
action requested of it under this Section 2.01 in respect of any Letter of
Credit unless it shall first have received such advice or concurrence of the
Required Banks as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take, or omitting or continuing to omit, any such action.
Notwithstanding any other provision of this Section 2.01, the Issuing Bank shall
in all cases be fully protected in acting, or in refraining from acting, under
this Section 2.01 in respect of any Letter of Credit in accordance with a
request of the Required Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Banks and all future holders
of participations in such Letter of Credit.
(j) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless each Bank and the Issuing Bank (the "LC INDEMNITEES") from
and against any and all claims and damages, losses, liabilities, costs or
expenses (including, without limitation, the reasonable fees and disbursements
of counsel) which any such LC Indemnitee may reasonably incur (or which may be
claimed against any such LC Indemnitee by any Person whatsoever) by reason of or
in connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit or any actual or proposed use of any
Letter of Credit, including any claims, damages, losses, liabilities, costs or
expenses which the Issuing Bank may incur by reason of or in connection with
- 15 -
the failure of any Bank to fulfill or comply with its obligations to the Issuing
Bank hereunder (but nothing herein contained shall affect any rights the Company
may have against any defaulting Bank); PROVIDED that the Company shall not be
required to indemnify any LC Indemnitee for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the Issuing Bank in
determining whether a request presented under any Letter of Credit complied with
the terms of such Letter of Credit or (ii) the Issuing Bank's failure to pay
under any Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit. Nothing in
this Section 2.01(j) is intended to limit the obligations of the Company under
any other provision of this Section 2.01.
(k) INDEMNIFICATION BY THE BANKS. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Issuing Bank, its affiliates and
their respective directors, officers, agents and employees (to the extent not
promptly reimbursed by the Company) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitee's gross negligence or
willful misconduct or the Issuing Bank's failure to pay under any Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit) that any such indemnitee may
suffer or incur in connection with this Section 2.01 or any action taken or
omitted by such indemnitee under this Section 2.01.
(l) EXTENSIONS OF LETTERS OF CREDIT. Subject to satisfaction of the
conditions set forth in Section 5.02, the Issuing Bank shall extend the expiry
date of the Letters of Credit for a period of one year from the then current
expiry date; PROVIDED that, the Issuing Bank shall have no obligation to
extend the expiry date of either Letter of Credit to a date after the
Termination Date, regardless of whether the conditions set forth in Section 5.02
have been satisfied. Each date on which the expiry date of either Letter of
Credit is extended is herein referred to as an "Extension Date".
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ARTICLE III. FEES; PAYMENTS; COMPUTATIONS
SECTION 3.01. FEES.
The Company agrees to pay to the Issuing Bank:
(a) LETTER OF CREDIT FEE. For the account of the Banks, the Letter
of Credit Fee multiplied by the average daily outstanding face amount of the
Series A L/C and the Series ▇ ▇/C during the period from and including January
1, 1995 to and including the Termination Date, payable quarterly in arrears on
the last Business Day of each March, June, September and December and on the
Termination Date.
(b) LETTER OF CREDIT FRONTING FEE. For the account of the Issuing
Bank, the Letter of Credit Fronting Fee multiplied by the sum of the face
amounts of the Series A L/C and the Series ▇ ▇/C for the period from April 6,
1995 through and including December 5, 1995, payable quarterly in arrears on the
last Business Day of each June, September and December during such period.
(c) DRAWING FEE. For the account of the Issuing Bank, a drawing
fee of $250 on each L/C Payment, payable at the time of each such L/C Payment.
(d) EXTENSION FEE. For the account of the Issuing Bank, an
extension fee of $500 per Letter of Credit, payable on each Extension Date
(other than the first Extension Date).
(e) AMENDMENT FEE. For the account of the Issuing Bank, an
amendment fee of $500 per Letter of Credit, payable on the date of effectiveness
of each amendment to such Letter of Credit (other than the amendment to be
entered into on the Closing Date).
Section 3.02. MANNER OF PAYMENTS.
(a) Each payment by the Company of a Reimbursement Obligation under
this Agreement shall be made by transferring the amount thereof in immediately
available Dollars to the Trustee for credit (i) to the Purchase Reimbursement
Fund (as such term is defined in the Indenture), in the case of reimbursement of
the amount of any Tender Drawing, or (ii) to the Credit Reimbursement Fund (as
such term is defined in the Indenture), in the case of reimbursement of the
amount of any Principal Drawing. All other payments payable by the Company
hereunder shall be paid to the Issuing Bank. All payments
- 17 -
payable by the Company hereunder shall be made not later than 2:00 p.m. (New
York City time) on the date on which such payment shall become due, in each case
without set-off or counterclaim and shall be free and clear of, and without
deduction for, any taxes, duties, levies, imposts or other charges of a similar
nature. Time is of the essence of this Agreement. If any payment due hereunder
shall be paid on the date when due, but following the time of day required
above, the Company shall pay to the Issuing Bank, on demand, as an additional
fee hereunder, an amount equal to the Federal Funds Rate for such day plus 1%,
multiplied by the amount of such payment, divided by 360.
(b) The Issuing Bank shall have the right to determine the order in
which amounts paid by the Company are applied to the amounts then due and
payable hereunder, regardless of any application designated by the Company. The
Company agrees to pay any interest or other amounts due under this Agreement to
the Issuing Bank at the L/C Bank Account or such other account as may be
designated by the Issuing Bank.
Section 3.03. EXTENSION OF PAYMENTS.
If any payment under this Agreement shall become due on a day which is
not a Business Day, the due date thereof shall be extended to the next following
day which is a Business Day, and such extension shall be taken into account in
computing the amount of any interest or fees then due and payable hereunder.
Section 3.04. COMPUTING OF INTEREST AND FEES.
All interest and fees payable under this Agreement shall be computed on
the basis of a year of 360 days for the actual number of days elapsed.
Section 3.05. GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Issuing Bank will promptly distribute to each Bank its ratable
share of each payment received by the Issuing Bank for the account of the Banks.
Whenever any payment shall be due on a day which is not a Business Day, the
date for payment thereof, except as otherwise expressly provided herein, shall
be extended to the next succeeding Business Day. If the date for any payment is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
- 18 -
(b) Unless the Issuing Bank shall have received notice from the
Company prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full, the Issuing Bank may assume
that the Company has made such payment in full to the Issuing Bank on such date
and the Issuing Bank may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Company shall not have so made such
payment, each Bank shall repay to the Issuing Bank forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank to but excluding the date
such Bank repays such amount to the Issuing Bank, at a rate per annum equal to
(A) in the case of each day from and including the day such payment is due
through and including the first succeeding Business Day (and any intervening
days), the Federal Funds Rate for each such day as determined by the Issuing
Bank and (B) for each day thereafter, the sum of 2% plus the Alternate Base Rate
for such day. Any payment made by any Bank after 3:00 p.m., New York City time,
on any Business Day shall be deemed for purposes of the preceding sentence to
have been made on the next succeeding Business Day.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Issuing Bank to enter into this
Agreement and to extend the credit herein provided for, the Company hereby
represents and warrants to each Bank and the Issuing Bank that:
SECTION 4.01. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
(a) The Company has the corporate power, authority and legal right to
make, deliver and perform this Agreement, the Security Agreement and the
Securities Pledge and Security Agreement, to cause the Letters of Credit to be
issued under the Original Agreement and incur the related Reimbursement
Obligations and to enter into any amendments to the Letters of Credit and any
extensions of the expiry thereof, and has taken all necessary corporate action
to authorize the issuance of the Letters of Credit, the incurrence of the
related Reimbursement Obligations and the execution, delivery and performance of
this Agreement, the Security Agreement and the Securities Pledge and Security
Agreement.
- 19 -
(b) No consent of any other Person (including without limitation
stockholders and creditors of the Company), and no authorization of, notice to,
or other act by or in respect of the Company by any governmental authority,
agency or instrumentality is required in connection with the issuance, amendment
or extension of the Letters of Credit or the execution, delivery, performance,
validity or enforceability of this Agreement, the Security Agreement and the
Securities Pledge and Security Agreement.
(c) Each of this Agreement, the Security Agreement and the Securities
Pledge and Security Agreement has been duly executed and delivered on behalf of
the Company and constitutes a legal, valid and binding agreement or obligation
of the Company enforceable against the Company in accordance with its terms.
SECTION 4.02. INCORPORATION BY REFERENCE.
Each of the representations made by the Company in Sections 4.04 through
4.17 of the ▇▇▇▇▇▇ Credit Agreement is true and correct. Defined terms used in
Sections 4.04 through 4.17 of the ▇▇▇▇▇▇ Credit Agreement have the meanings
assigned to such terms in the ▇▇▇▇▇▇ Credit Agreement, except that, for purposes
of this Agreement, the term "Financing Documents" shall include this Agreement,
the Lease Guaranty and the Letters of Credit.
ARTICLE V. CONDITIONS PRECEDENT
SECTION 5.01. CONDITIONS TO AMENDMENT AND RESTATEMENT.
The Original Agreement shall not be amended and restated as provided
herein until the date (the "CLOSING DATE") on which all of the following
conditions have been satisfied (or waived, in accordance with Section 11.05):
(a) The Issuing Bank shall have received counterparts hereof signed by
each of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, the Issuing Bank shall have received,
in form satisfactory to it, telegraphic, telex, facsimile or other written
confirmation from such party of execution of a counterpart hereof by such
party).
(b) The Issuing Bank shall have received a copy of the Security
Agreement and the Securities Pledge and Security
- 20 -
Agreement, in each case signed by all parties thereto.
(c) The Issuing Bank shall have received a copy of the ▇▇▇▇▇▇ Credit
Agreement in the form signed by all parties thereto.
(d) The Issuing Bank shall have received, with an original counterpart
for each Bank, a certificate dated the Closing Date, substantially in the form
of Exhibit F, executed by an Executive Vice President, a Senior Vice President
or the Treasurer of the Company.
(e) The Issuing Bank shall have received, with an original counterpart
for each Bank, a certificate executed by a duly authorized officer of the
Company and dated the Closing Date certifying that no material adverse change
has occurred in the financial condition, results of operations or business of
the Combined Companies (as such term is defined in the ▇▇▇▇▇▇ Credit Agreement),
taken as a whole, since November 30, 1994.
(f) The Issuing Bank shall have received, with an original counterpart
for each Bank, an opinion of special counsel for the Company, dated the Closing
Date and addressed to the Issuing Bank and the Banks, substantially in the form
of Exhibit G and covering such other matters incident to the transactions
contemplated by this Agreement as the Issuing Bank or any Bank shall reasonably
request.
(g) The Issuing Bank shall have received, with an original counterpart
for each Bank, an opinion of internal counsel for the Company, dated the Closing
Date and addressed to the Issuing Bank and the Banks, substantially in the form
of Exhibit H and covering such other matters incident to the transactions
contemplated by this Agreement as the Issuing Bank or any Bank shall reasonably
request.
(h) The Issuing Bank shall have received, with an original counterpart
for each Bank, an opinion from special Cayman Islands counsel to N.M.E.
International (Cayman) Limited, dated the Closing Date and addressed to the
Issuing Bank and the Banks, substantially in the form of Exhibit I and covering
such other matters incident to the transactions contemplated by this Agreement
as the Issuing Bank or any Bank shall reasonably request.
(i) The Issuing Bank shall have received, with an original counterpart
for each Bank, a certificate of the Sec-
- 21 -
retary of the Company, dated the Closing Date, as to the articles of
incorporation and bylaws of the Company, no amendments thereto, the adoption by
the board of directors of the Company of the resolutions with respect to the
transactions contemplated hereby and the incumbency and signature of each
officer of the Company authorized to sign this Agreement, the Security Agreement
and the Securities Pledge and Security Agreement and each certificate or other
document to be delivered pursuant to this Agreement, together with evidence of
the incumbency of such Secretary.
(j) The Issuing Bank shall have received, with a copy for each Bank, a
copy (in form and substance satisfactory to the Issuing Bank) of the resolutions
of the board of directors of the Company authorizing the execution, delivery and
performance of this Agreement and the Security Agreement and the incurrence of
the obligations hereunder and thereunder, certified to be in full force and
effect without modification by the Secretary of the Company on the Closing Date.
(k) The Issuing Bank shall have received, with an original counterpart
for each Bank, a true copy of any consent or approval of any Person which may be
required in connection with the transactions contemplated by this Agreement,
including, without limitation, any consent required under the Overdraft Facility
Agreement and the Advance Account Agreement (as such terms are defined in the
▇▇▇▇▇▇ Credit Agreement).
(l) The Company shall have paid all expenses payable by the Company on
or before the Closing Date pursuant to Section 11.03 of this Agreement.
(m) The Issuing Bank shall have received a written acknowledgment of
the Lessee and the Company to the effect that (i) each such party consents to
the execution, delivery and performance of this Agreement and all documents,
instruments and agreements relating hereto or delivered herewith, (ii) the Lease
Agreement is and, immediately after the execution and delivery hereof shall be,
in full force and effect, enforceable against the Lessee in accordance with its
terms, (iii) all consents necessary to the enforceability of this Agreement and
exercise of the rights of the Issuing Bank and the Banks hereunder in connection
with the Lease Agreement have been obtained, (iv) the obligations of the Lessee
under the Lease Agreement are absolute and not subject to defenses, offsets or
counterclaims except as, and only to the extent,
- 22 -
provided for in the Lease Agreement, and (v) on and after the date hereof all
references to the "Reimbursement Agreement" in the Lease Agreement shall be to
this Agreement as the same may from time to time be amended, restated,
supplemented, extended or otherwise modified.
(n) The Closing Date (as defined in the ▇▇▇▇▇▇ Credit Agreement) shall
have occurred.
(o) The Issuing Bank shall have received an amendment to the Series A
L/C, substantially in the form of Exhibit C and an amendment to the Series B
L/C, substantially in the form of Exhibit D, in each case signed by the parties
thereto.
(p) The Issuing Bank shall have received a notice from the Company
requesting an extension of the current expiry date of the Letters of Credit.
(q) The Issuing Bank shall have received all documents the Issuing
Bank may reasonably request relating to the existence of the Company, the
corporate authority for and the validity of this Agreement, the Security
Agreement and the Securities Pledge and Security Agreement, and any other
matters relevant hereto, all in form and substance satisfactory to the Issuing
Bank.
On the Closing Date the Original Agreement will be automatically amended
and restated in its entirety to read as set forth herein. On and after the
Closing Date the rights and obligations of the parties hereto shall be governed
by this Agreement; PROVIDED that the rights and obligations of the parties
hereto with respect to the period prior to the Closing Date shall continue to be
governed by the provisions of the Original Agreement. The Issuing Bank shall
promptly notify the Company and the Banks of the amendment and restatement of
this Agreement, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 5.02. CONDITIONS TO EXTENSIONS OF LETTERS OF CREDIT.
The obligation of the Issuing Bank to extend the Letters of Credit on
any Extension Date and of the Banks to participate in the Letters of Credit
thereafter is subject to the satisfaction of the following conditions:
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(a) the fact that the Issuing Bank shall have received a notice from the
Company requesting such extension not more than 90 or less than 30 days prior to
the then current expiry date of the Letters of Credit;
(b) the fact that the representations and warranties made by the
Company in this Agreement, the Security Agreement and the Securities Pledge and
Security Agreement or which are contained in any certificate, document or
financial or other statement furnished at any time hereunder or in connection
herewith, will be true and correct on and as of the date of extension of the
Letters of Credit as if made on and as of such date (except that representations
and warranties made with respect to specified dates or periods will be true and
correct as of such specified dates or for such specified periods, as the case
may be); and
(c) the fact that no Default or Event of Default will have occurred
and be continuing on the date of extension of such Letters of Credit before or
after giving effect thereto.
Each extension of the Letters of Credit hereunder shall constitute a
representation and warranty by the Company hereunder as of the date of such
extension that the conditions in clauses (a), (b) and (c) of this Section have
been satisfied.
ARTICLE VI. COVENANTS
SECTION 6.01. INCORPORATION BY REFERENCE.
The Company agrees that, so long as any Commitment remains in effect,
any amount remains available for drawing under any Letter of Credit or any
amount is owing to any Bank or the Issuing Bank hereunder, the Company shall
observe and perform each of its covenants and undertakings set forth in Article
V of the ▇▇▇▇▇▇ Credit Agreement and such covenants and undertakings are hereby
incorporated herein by reference. Defined terms used in Article V of the ▇▇▇▇▇▇
Credit Agreement have the meanings assigned such terms in the ▇▇▇▇▇▇ Credit
Agreement; PROVIDED that for purposes of this Section 6.01 (i) the term
"Lenders" shall mean the Banks, (ii) the term "Financing Documents" shall
include this Agreement, the Lease Guaranty and the Letters of Credit, (iii) the
term "Required Lenders" shall mean the Required Banks, (iv) the term "Default"
shall mean a Default as such term is defined herein, and (v) the term
"Administrative Agent" shall mean
- 24 -
the Issuing Bank.
SECTION 6.02. USE OF PROCEEDS, INELIGIBLE SECURITIES.
The Company shall not, directly or indirectly, use any portion of the
proceeds of the Loans (i) knowingly to purchase Ineligible Securities from a
Section 20 Subsidiary during any period in which such Section 20 Subsidiary
makes a market in such Ineligible Securities, (ii) knowingly to purchase during
the underwriting or placement period Ineligible Securities being underwritten or
privately placed by a Section 20 Subsidiary, or (iii) to make payments of
principal or interest on Ineligible Securities underwritten or privately placed
by a Section 20 Subsidiary and issued by or for the benefit of the Company or
any Affiliate of the Company.
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT.
Upon the occurrence of any of the following Events of Default:
(a) The Company shall fail to pay when due any Reimbursement
Obligation, or shall fail to pay any interest on any Reimbursement Obligation,
any fee payable hereunder or any other amount payable hereunder within three
Business Days after such interest, fee or other amount becomes due; or
(b) Any representation or warranty made or deemed made by the Company
in this Agreement, the Security Agreement and the Securities Pledge and
Security Agreement or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any
agreement or covenant contained in Article VI hereof, Section 4(b) or 5 of the
Security Agreement or Section 8 of the Securities Pledge and Security
Agreement; or
(d) The Company shall default in the observance or
- 25 -
performance of any other agreement or covenant contained in this Agreement,
the Security Agreement or the Securities Pledge and Security Agreement, and
such default shall not have been remedied within 30 days; or
(e) An Event of Default under and as defined in the ▇▇▇▇▇▇ Credit
Agreement shall have occurred and be continuing; or
(f) Any representation or warranty made or deemed made by the Company
in this Agreement, the Remarketing Agreement, the Lease Guaranty, the
Indenture or any certificate, financial statement or other document delivered
pursuant hereto or thereto shall not be Accurate and Complete on any date as
of which made or deemed made; or
(g) Any "Default" or "Event of Default" (as such terms are defined in
the Bond Documents) shall occur and be continuing under the Bonds, the
Indenture, the Lease Agreement, or the Lease Guaranty, or any material breach
shall occur and be continuing under the Remarketing Agreement or any other
document or instrument executed in connection herewith or therewith
(collectively, the "BOND DOCUMENTS" and individually, a "BOND DOCUMENT");
or any party to any Bond Document shall default in the payment when due of any
principal, interest, rental or other amount due thereunder beyond the period
of grace, if any, provided in the applicable Bond Document; or default in the
observance or performance by any party thereto of any other agreement, term or
condition contained in any Bond Document, if such event is continuing and the
effect of such event is to cause, or to permit any other party thereto, or any
holder of debt or obligations evidenced or secured by such Bond Document (or a
trustee on its behalf) to cause, the principal, interest, rental or other
amounts due under such Bond Document to become due prior to its stated
maturity or date of payment; or
(h) The Lease Agreement, the Lease Guaranty, or the Indenture shall
(i) be amended, modified, or otherwise changed, or any default or event of
default thereunder shall be waived, without the prior written consent of the
Required Banks, or (ii) shall terminate, either by its terms or by the act of
any party thereto.
Section 7.02. DEFAULT REMEDIES.
(a) MANDATORY PAYMENT. If an Event of Default has
- 26 -
occurred and is continuing, upon request of the Required Banks, the Issuing Bank
shall direct the Company to make the payment to the Issuing Bank provided for in
Section 2.01(f) hereof.
(b) REFUSE TO REINSTATE. If, prior to 9:00 a.m., New York City
time, on any Purchase Date for any Bond, an Event of Default or Default has
occurred and is continuing, the Issuing Bank may give notice to the Trustee
that, as a consequence of such Event of Default or Default, the Issuing Bank
will not reinstate the Series A L/C or the Series ▇ ▇/C in the amount of any
draw or draws made thereunder on such Purchase Date, and the Issuing Bank may
instruct the Remarketing Agent by notice, a copy of which shall be promptly
delivered to the Company, to cease remarketing and selling Bonds from and after
the date such notice is received by the Remarketing Agent and until the Issuing
Bank shall have rescinded such instruction in writing. The Issuing Bank agrees
that if, after giving notice to the Trustee that it will not reinstate either
Letter of Credit in the amount of a draw or draws hereunder, or after giving
instruction pursuant hereto to cease remarketing the Bonds as the result of the
occurrence of an Event of Default or Default, such Event of Default or Default
is no longer in existence and no other Event of Default or Default shall have
occurred and be continuing, the Issuing Bank shall cause each Letter of Credit
to be reinstated in the amount of any such draws, and will give the Trustee and
the Remarketing Agent notice thereof and shall rescind its instructions to cease
remarketing the Bonds.
(c) REMEDIES IN GENERAL. The foregoing rights and remedies are in
addition to all other rights and remedies which the Issuing Bank or the Banks
may have as a matter of law or otherwise.
ARTICLE VIII. THE ISSUING BANK
SECTION 8.01. APPOINTMENT AND AUTHORIZATION.
Each Bank irrevocably appoints and authorizes the Issuing Bank (i) to
take such action as agent on its behalf and to exercise such powers under this
Agreement, the Security Agreement and the Securities Pledge and Security
Agreement as are delegated to the Issuing Bank by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto, (ii) to
execute and deliver
- 27 -
the Securities Pledge and Security Agreement and (iii) to issue the Letters of
Credit, and to enter into any amendments thereto or extensions thereof in
accordance with the terms set forth in this Agreement.
SECTION 8.02. ISSUING BANK AND AFFILIATES.
The Bank of New York shall have the same rights and powers under this
Agreement, the Security Agreement and the Securities Pledge and Security
Agreement as any other Bank and may exercise or refrain from exercising the same
as though it were not the Issuing Bank, and The Bank of New York and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Company or any Subsidiary or Affiliate of the Company
as if it were not the Issuing Bank hereunder.
SECTION 8.03. ACTION BY ISSUING BANK.
The obligations of the Issuing Bank under this Agreement and the
Securities Pledge and Security Agreement are only those expressly set forth
herein and therein. Without limiting the generality of the foregoing, the
Issuing Bank shall not be required to take any action with respect to any
Default, except as expressly provided in Section 7.02.
SECTION 8.04. CONSULTATION WITH EXPERTS.
The Issuing Bank may consult with legal counsel (who may be counsel for
the Company), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 8.05. LIABILITY OF ISSUING BANK.
Neither the Issuing Bank nor any of its Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Issuing Bank nor any of its
Affiliates nor any of their respective directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(i) any statement, warranty or representation made in connection with this
Agreement; (ii) the performance or
- 28 -
observance of any of the covenants or agreements of the Company; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered to the Issuing Bank; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Security Agreement, the
Securities Pledge and Security Agreement, or any other instrument or writing
furnished in connection herewith. The Issuing Bank shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
SECTION 8.06. INDEMNIFICATION.
Each Bank shall, ratably in accordance with its Commitment, indemnify
the Issuing Bank, its affiliates and their respective directors, officers,
agents and employees (to the extent not promptly reimbursed by the Company)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such indemnitees may suffer or
incur in connection with this Agreement, the Security Agreement or the
Securities Pledge and Security Agreement or any action taken or omitted by such
indemnitees hereunder or thereunder.
SECTION 8.07. CREDIT DECISION.
Each Bank acknowledges that it has, independently and without reliance
upon the Issuing Bank or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon the Issuing Bank or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
any action under this Agreement.
SECTION 8.08. ISSUING BANK'S FEE.
The Company shall pay to the Issuing Bank for its own account fees in
the amounts and at the times previously agreed upon between the Company and the
Issuing Bank.
- 29 -
ARTICLE IX. THE COLLATERAL AGENT
SECTION 9.01. APPOINTMENT AND AUTHORIZATION.
Each Bank irrevocably appoints and authorizes the Collateral Agent to
take such action as agent on its behalf and to exercise such powers under the
Security Agreement as are delegated to the Collateral Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 9.02. COLLATERAL AGENT AND AFFILIATES.
▇▇▇▇▇▇ Guaranty Trust Company of New York shall have the same rights and
powers under this Agreement, the Security Agreement and the Securities Pledge
and Security Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Collateral Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Company or
any Subsidiary or Affiliate of the Company as if it were not the Collateral
Agent under the Security Agreement.
SECTION 9.03. ACTION BY COLLATERAL AGENT.
The obligations of the Collateral Agent under the Security Agreement are
only those expressly set forth therein. Without limiting the generality of the
foregoing, the Collateral Agent shall not be required to take any action with
respect to any Default, except as expressly provided in Section 14(a) of the
Security Agreement.
SECTION 9.04. CONSULTATION WITH EXPERTS.
The Collateral Agent may consult with legal counsel (who may be counsel
for the Company), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 9.05. LIABILITY OF COLLATERAL AGENT.
Neither the Collateral Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection with the Security Agreement (i)
with the
- 30 -
consent or at the request of the Required Lenders or the Required Secured
Parties (as such terms are defined in the Security Agreement) or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the
Collateral Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any Letter of Credit
issued hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company; (iii) the satisfaction of any condition specified in
Article V; or (iv) the validity, effectiveness or genuineness of this Agreement,
the Securities Pledge and Security Agreement, the Security Agreement or any
other instrument or writing furnished in connection herewith. The Collateral
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed by it to be genuine
or to be signed by the proper party or parties.
SECTION 9.06. SUCCESSOR COLLATERAL AGENT.
The Collateral Agent may resign, and a successor Collateral Agent may be
appointed at any time as provided in Section 14 of the Security Agreement.
After any retiring Collateral Agent's resignation under the Security Agreement
as Collateral Agent, the provisions of this Article shall inure to the benefit
of the Collateral Agent as to any actions taken or omitted to be taken by it
while it was Collateral Agent.
ARTICLE X. CHANGE IN CIRCUMSTANCES
SECTION 10.01. ILLEGALITY.
If, on or after the date of this Agreement, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall in the reasonable opinion of
counsel to the Issuing Bank, make it
- 31 -
unlawful or impossible for the Issuing Bank to issue or maintain any portion of
the Letters of Credit or to make L/C Payments, then the Issuing Bank may
instruct the Company and the Remarketing Agent to cease remarketing the Bonds.
If individual employees of the Issuing Bank with knowledge of this Section 10.01
become aware of pending legislation, or executive or administrative action,
which such employees know will cause the issuance or maintenance of any portion
of the Letters of Credit, or the making of L/C Payments, to become unlawful, the
Issuing Bank will promptly notify the Company of such pending matter;
PROVIDED, however, the Issuing Bank will have no liability, and is hereby
fully and completely released from any liability or damage, for failure to
comply with this sentence.
SECTION 10.02. TAXES.
(a) For purposes of this Section 10.02, the following terms have the
following meanings:
"TAXES" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Company pursuant to this Agreement and all liabilities with respect thereto,
EXCLUDING (i) in the case of each Bank, taxes imposed on its income, and
franchise or similar taxes imposed on it, by a jurisdiction under the laws of
which such Bank is organized or in which its principal executive office is
located or, in the case of each Bank, in which its Applicable Credit Office is
located and (ii) in the case of each Bank, any United States withholding tax
imposed on such payments but only to the extent that such Bank is subject to
United States withholding tax at the time such Bank first becomes a party to
this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or from the execution or
delivery of, or otherwise with respect to, this Agreement.
(b) Any and all payments by the Company to or for the account of any
Bank or the Issuing Bank hereunder shall be made without deduction for any Taxes
or Other Taxes; PROVIDED that, if the Company shall be required by law to
deduct any Taxes or Other Taxes from any such payments, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to ad-
- 32 -
ditional sums payable under this Section 10.02) such Bank or the Issuing Bank
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Company shall make such deductions,
(iii) the Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Company shall furnish to the Issuing Bank, at its address referred to in Section
11.01, the original or a certified copy of a receipt evidencing payment thereof.
(c) The Company agrees to indemnify each Bank and the Issuing Bank for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 11.02) paid by such Bank or the Issuing Bank (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be paid within 15
days after such Bank or the Issuing Bank (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date on which it becomes a Bank, and from time
to time thereafter if requested in writing by the Company (but only so long as
such Bank remains lawfully able to do so), shall provide the Company and the
Issuing Bank with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts such Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank has failed to provide
the Company and the Issuing Bank with the appropriate form pursuant to Section
10.02(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which such form originally was required to
be provided), such Bank shall not be entitled to indemnification under Section
10.02(b) or (c) with respect to Taxes imposed by the United States; PROVIDED
that if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes
- 33 -
because of its failure to deliver a form required hereunder, the Company shall
take such steps as such Bank shall reasonably request to assist such Bank to
recover such Taxes.
(f) If the Company is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 10.02, then such Bank will change
the jurisdiction of its Applicable Credit Office if, in the judgment of such
Bank, such change (i) will eliminate or reduce any such additional payment which
may thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
SECTION 10.03. CAPITAL ADEQUACY.
(a) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Issuing Bank), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(b) Each Bank will promptly notify the Company and the Issuing Bank of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Credit Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
- 34 -
SECTION 10.04. ISSUING BANK AS BANK.
For all purposes of Article X, the term "Bank" shall include the Issuing
Bank.
ARTICLE XI. MISCELLANEOUS
SECTION 11.01. NOTICES.
All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party: (x) in the case of the
Company or the Issuing Bank, at its address, facsimile number or telex number
set forth on the signature pages hereof, (y) in the case of any Bank, at its
address, facsimile number or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Issuing Bank and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Issuing
Bank under Article II or Article VII shall not be effective until received.
SECTION 11.02. NO WAIVERS.
No failure or delay by the Issuing Bank or any Bank in exercising any
right, power or privilege hereunder or under the Securities Pledge and Security
Agreement or any other document or agreement delivered in connection herewith or
therewith shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
- 35 -
SECTION 11.03. EXPENSES; INDEMNIFICATION.
(a) The Company shall pay (i) all out-of-pocket expenses of the
Issuing Bank, including fees and disbursements of counsel, in connection with
the preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Issuing Bank and each Bank, including (without duplication) the fees and
disbursements of counsel and the allocated cost of internal counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Issuing Bank, each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, claims, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or the Letters of Credit
or any actual or proposed use of the proceeds of drawings under the Letters of
Credit; PROVIDED that no Indemnitee shall have the right to be indemnified
hereunder for such Indemnitee's own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
SECTION 11.04. SHARING OF SET-OFFS.
Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Reimbursement
Obligation held by it which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Reimbursement Obligation held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Reimbursement Obligations held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Reimbursement Obligations
held
- 36 -
by the Banks shall be shared by the Banks pro rata; PROVIDED that nothing in
this Section shall impair the right of any Bank to exercise any right of set-off
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Company other than its indebtedness
hereunder. The Company agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in a Reimbursement
Obligation, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Company in the amount of such participation.
SECTION 11.05. AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Company,
the Required Banks and the Issuing Bank; PROVIDED that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase or decrease any
Commitment of any Bank (except for a ratable decrease in the corresponding
Commitments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Reimbursement Obligation, any
interest thereon or any fees hereunder, (iii) postpone the date fixed for any
payment of any Reimbursement Obligation or any fees hereunder or for the
expiration of any Letter of Credit or the termination of any Commitment, (iv)
release any Bonds from the lien of the Securities Pledge and Security Agreement,
(v) waive any condition specified in Section 5.01, (vi) waive any provision
hereof requiring payments to the Banks to be made ratably or (vii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
Reimbursement Obligations, or the number of Banks, which shall be required for
the Banks or any of them to take any action under this Section or any other
provision of this Agreement; PROVIDED that (x) no amendment or waiver which
would change any of the material obligations of the Issuing Bank (solely in its
capacity as issuer of the Letters of Credit) to the Trustee or would change the
obligations of the Issuing Bank under the last sentence of Section 11.06(c)
shall be effective unless (1) at least 30 days prior written notice of such
amendment or waiver shall have been provided to ▇▇▇▇▇'▇ Investors Service, Inc.
and Standard and Poor's Ratings Group or (2) the Issuing Bank shall have
received the written confirmation from ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard and Poor's Ratings Group
- 37 -
that such amendment or waiver will not result in a withdrawal or reduction in
the rating of the Bonds and (y) no amendment or waiver (including without
limitation any such amendment or waiver described in clause (b) below) shall be
effective unless a copy of such amendment or waiver substantially in the form to
be entered into by the parties hereto shall have been provided to the Trustee at
least five Business Days prior to the effectiveness of such amendment or waiver
(unless the Trustee shall have expressly waived such requirement).
(b) Any amendment or waiver of any provision of Articles IV and V (or
any related definition) of the ▇▇▇▇▇▇ Credit Agreement shall be effective for
purposes of Articles IV and VI of this Agreement if signed by the Company and
the Required Banks hereunder in their respective capacities as "Lenders" under
the ▇▇▇▇▇▇ Credit Agreement.
SECTION 11.06. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Company may not assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment
or any or all of its Reimbursement Obligations. In the event of any such grant
by a Bank of a participating interest to a Participant, whether or not upon
notice to the Company and the Issuing Bank, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Company and the
Issuing Bank shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, the
Security Agreement and the Securities Pledge and Security Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company under this Agreement, the Security
Agreement and the Securities Pledge and Security Agreement including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement, the Security Agreement or the Securities Pledge and
Security Agreement; PROVIDED that such participation agreement may provide
that
- 38 -
such Bank will not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii), (iii) or (iv) of Section 11.05(a)
without the consent of the Participant. The Company agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article X with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent to
an initial Commitment of not less than $10,000,000) of all of its rights and
obligations under this Agreement and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit J hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Issuing Bank (but without
the Company's consent); PROVIDED that no such consent shall be required if (i)
the Assignee is an Affiliate of the transferor Bank and is of a credit quality
equal to or better than the credit quality of the transferor Bank or (ii) the
Assignee was a Bank immediately prior to such assignment. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. In connection with any such assignment,
the transferor Bank shall pay to the Issuing Bank an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States or a state thereof, it shall
deliver to the Company and the Issuing Bank certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 10.02. Notwithstanding the foregoing, the Issuing Bank shall not
assign any of its rights or obligations hereunder unless (i) it shall have
provided at least 30 days prior written notice to ▇▇▇▇▇'▇ Investors Service,
Inc. and Standard and Poor's Ratings Group or (ii) it shall have received
written
- 39 -
confirmation from ▇▇▇▇▇'▇ Investors Service, Inc. and Standard and Poor's
Ratings Group that the credit rating assigned to the Bonds by ▇▇▇▇▇'▇ Investors
Service, Inc. and Standard and Poor's Ratings Group, respectively, will not be
reduced or withdrawn as a result of such assignment.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 10.02 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Company's prior written consent or by
reason of the provisions of Section 10.02 requiring such Bank to designate a
different Applicable Credit Office under certain circumstances or at a time when
the circumstances giving rise to such greater payment did not exist.
SECTION 11.07. COLLATERAL.
Each of the Banks represents to the Issuing Bank and each of the other
Banks that it in good faith is not relying upon any Margin Stock as collateral
in the extension or maintenance of the credit provided for in this Agreement.
SECTION 11.08. GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE COMPANY HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
SECURITY AGREEMENT, THE SECURITIES PLEDGE AND SECURITY AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
SECTION 11.09. COUNTERPARTS; INTEGRATION.
This Agreement may be signed in any number of coun-
- 40 -
terparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
constitutes the entire agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, oral or written,
relating to the subject matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE ISSUING BANK AND THE BANKS HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- 41 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date and
year first above written.
NATIONAL MEDICAL ENTERPRISES, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
- 42 -
BANKERS TRUST COMPANY
By: /S/ ▇▇▇▇ ▇▇ ▇▇▇▇▇
----------------------------
Title: Assistant Vice President
THE BANK OF NEW YORK, as a Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Vice President
THE BANK OF NEW YORK, as Issuing Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: SBLC Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
- 43 -
EXHIBIT A
FORM OF SERIES A LETTER OF CREDIT
OUR REFERENCE NO.: DATE:
S00031638 December 6, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Bank National
Association, Trustee
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
Account No. 60730-00
Ladies and Gentlemen:
I. At the request and for the account of National Medical Enterprises, Inc.
(the "COMPANY"), The Bank of New York (the "BANK") hereby irrevocably
establishes in favor of Texas Commerce Bank National Association (the
"TRUSTEE") for the benefit of the holders of the Series A Bonds referred to
below, this direct pay Series A Letter of Credit in an aggregate amount of US
$68,600,000 (SIXTY EIGHT MILLION SIX HUNDRED THOUSAND) AND 00/100 U.S. DOLLARS)
(as adjusted pursuant to paragraphs 4 and 5 hereof, the "STATED AMOUNT"),
available from time to time in respect of the face amount of Series A 1989 Bonds
in the aggregate principal amount of $68,600,000 (the "SERIES A BONDS") issued
by the Metrocrest Hospital Authority ("MHA") pursuant to and in accordance
with the Amended and Restated Indenture of Mortgage and Deed of Trust dated as
of November 1, 1994 (the "INDENTURE") executed by MHA in favor of the Trustee.
II. Funds under this Letter of Credit are available to
(i) the Trustee, with respect to a drawing made for the payment of
the principal, at maturity, by redemption, upon acceleration under Section 10.02
of the Indenture or otherwise, of the Series A Bonds (a "PRINCIPAL DRAWING"),
against the sight draft(s) of the Trustee, accompanied by a written certificate
purportedly signed by an authorized officer of the Trustee in the form of Annex
I attached hereto, appropriately completed; and
(ii) the Trustee, with respect to the payment of the
purchase price of the Series A Bonds purchased by the Tender Agent (as such term
is defined in the Indenture) for the account of the Company pursuant to Section
7.01 of the Indenture (a "TENDER DRAWING"), against the sight draft(s) of the
Trustee, accompanied by a written certificate purportedly signed by an
authorized officer of the Trustee in the form of Annex II attached hereto,
appropriately completed. In connection with any Tender Drawing, Series A Bonds
in aggregate principal amount equal to the amount of the sight draft presented
by the Trustee in respect of any such drawing shall be delivered by the Trustee
to the Bank or its agent or designee as promptly as practicable, and in any
event within three (3) days, after any such Tender Drawing if, prior to such
delivery, such Series A Bonds have not been resold by the Remarketing Agent (as
such term is defined in the Indenture).
Drafts drawn under this Letter of Credit shall state on their face "Drawn
under The Bank of New York Irrevocable Letter of Credit No. S00031638 dated
December 6, 1994". Presentation of each draft and certificate required
hereunder must be made at the Bank's office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Standby Letter of Credit Dept., Floor
8 East, not later than April 5, 1995 (the "FINAL EXPIRATION DATE").
All drawings under this Letter of Credit shall be paid only with funds of
the Bank and not from any payments made by the Company to the Bank.
III. The Bank hereby agrees that all drafts drawn under and in compliance with
the terms of this Letter of Credit will be duly honored by the Bank upon
delivery of the documents, as specified, if presented at such office on or
before the Final Expiration Date, unless this Letter of Credit is terminated
earlier as provided in paragraph 9 hereof. If a drawing in respect of payment
is made hereunder at or prior to 10:00 a.m., New York City time, on a Business
Day, and provided that such drawing and the documents presented in connection
therewith conform to the terms and conditions hereof, payment shall be made of
the amount specified, in immediately available funds, not later than the close
of business on such Business Day. If a drawing is made after 10:00 a.m., New
York City time, on a Business Day, and provided that such drawing and the
documents presented in connection therewith conform to the terms and conditions
hereof, payment shall be made of the amount specified not later than 12:00 noon,
New York City time, on the next succeeding Business Day. Payment under this
Letter of Credit to the Trustee shall be transferred by fed wire transfer to
Account ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
- ▇ -
▇▇▇▇▇ Commerce Bank - Houston, ABA #1130-00609, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
For purposes of this Letter of Credit, "BUSINESS DAY" shall mean any day other
than (i) a Saturday or Sunday or (ii) a legal holiday or the equivalent on which
banking institutions are generally authorized or required to close in New York,
New York or in the city in which is located (a) the principal corporate trust
office of the Trustee, the Tender Agent (as defined in the Indenture) or the
principal office of the Remarketing Agent (as defined in the Indenture) or (b)
the office of the Issuing Bank or of its agent at which drafts or claims for
payment under the Letter of Credit are to be presented, or (iii) a day on which
the New York Stock Exchange is closed.
IV. Multiple drawings may be made hereunder, provided that, subject to
paragraph 5 hereof, each drawing honored by the Bank hereunder shall PRO
TANTO reduce the amount available under this Letter of Credit. Payments made
in respect of any drawing (whether or not complying with the terms of this
Letter of Credit) which have been deposited in any account specified in
paragraph 3 hereof (or which have been received by the Trustee in another
account specified by the recipient for such payment) shall automatically reduce
the amount which the Trustee may draw hereunder, notwithstanding any acts or
omissions, whether authorized or unauthorized, of the Trustee, or any officer,
director, employee or agent of the Trustee in connection with any drawing
hereunder or the proceeds thereof or otherwise in connection with this Letter of
Credit.
V. Upon payment by the Bank of a Tender Drawing on any Purchase Date (as
defined in the Indenture) for the purchase by the Company of any Series A Bond
or Bonds, the amount available under this Letter of Credit shall be
automatically reinstated, in the amount of such payment and as to such Series A
Bond or Bonds, unless (i) prior to 9:00 a.m., New York City time, on such
Purchase Date, the Trustee and the Remarketing Agent receive telephonic notice
from the Bank, confirmed in writing at any time on the same day, that a Default
or Event of Default (as such terms are defined in the Reimbursement Agreement)
has occurred and is continuing under the Letter of Credit and Reimbursement
Agreement, dated as of November 1, 1994, among the Company, the banks party
thereto and the Bank, as issuing bank and agent (the "REIMBURSEMENT
AGREEMENT"), that the Remarketing Agent is to cease remarketing the Bonds and
that the Letter of Credit will not be reinstated except as provided in Section
7.04B of the Indenture; or (ii) on any such date, there is in effect one or more
letters of credit, or similar facilities providing credit and liquidity support,
accepted by the Trustee before such date in substitution for this Letter of
Credit.
- 3 -
VI. Only the Trustee may make a drawing under this Letter of Credit. Upon
payment to the Trustee, as provided in paragraph 3 hereof, of the amount
specified in any sight draft(s) drawn hereunder, the Bank shall be fully
discharged of the Bank's obligation under this Letter of Credit with respect to
such sight draft(s), and the Bank shall not thereafter be obligated to make any
further payments under this Letter of Credit in respect of such sight draft(s)
to the Trustee or any other person who makes or who may have made to the Trustee
a demand for payment of principal of, redemption price of, or Purchase Price (as
such term is defined in the Indenture) of, any Series A Bond.
VII. This Letter of Credit may not be drawn against for payment of principal
of, redemption price of, or Purchase Price of any Series A Bond which is owned
by MHA, the Company, NME Hospitals, the Corporation or any Guarantor (as such
terms are defined in the Indenture).
VIII. This Letter of Credit is effective immediately and shall expire at 5:00
p.m., New York City time, on the Final Expiration Date, unless terminated
earlier pursuant to Section 9 or unless the Final Expiration Date is extended by
the Bank by delivering to the Trustee a Notice of Extension in the form of Annex
IV hereto. The Bank may deliver to the Trustee a new Letter of Credit in
exchange herefor, or an amendment hereto, to reflect any such extension.
IX. This Letter of Credit shall automatically terminate, and shall be
delivered to the Bank for cancellation, upon the earliest to occur of the
following events:
(i) the payment by the Bank of the final drawing available to be made
hereunder which is not subject to reinstatement;
(ii) the Bank's receipt of a certificate purportedly signed by a duly
authorized officer of the Trustee and a duly authorized officer
of the Company stating that:
"The undersigned, ______________________, a duly authorized
officer of Texas Commerce Bank National Association, and
_______________, a duly authorized officer of National
Medical Enterprises, Inc., state that no Series A Bonds
remain Outstanding under the Indenture and (ii) upon
receipt by The Bank of New York of this Certificate, The
Bank of New York Irrevocable
- 4 -
Letter of Credit No. S00031638 shall terminate.";
(iii) 5:00 p.m., New York City time, on the Final Expiration Date, as
the same may be extended from time to time.
X. This Letter of Credit, unless otherwise expressly stated, is subject to
the terms and provisions of the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication 500 (the
"UNIFORM CUSTOMS"), including the provisions thereof providing that parties
may expressly agree to terms and provisions other than as provided in the
Uniform Customs, and, to the extent not inconsistent with the Uniform Customs,
shall be governed by the laws of the State of New York, including without
limitation, Article 5 of the Uniform Commercial Code as in effect in the State
of New York. Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to the Bank at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Manager, Standby Letter of Credit Dept., Floor 8 East, specifically referring
thereon to "The Bank of New York Irrevocable Letter of Credit No. S00031638".
XI. This Letter of Credit is transferable in its entirety (but not in part) to
any transferee who has succeeded to the Trustee under the Indenture. Transfer
of the available drawing(s) under this Letter of Credit to any such transferee
shall be effected by the presentation to the Bank of this original Letter of
Credit and any amendments for endorsement thereof on such transfer accompanied
by a transfer letter in the form attached hereto as Annex III purportedly signed
by an authorized officer of the Trustee and an authorized officer of such
transferee.
XII. This Letter of Credit sets forth in full the Bank's 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 Series A Bonds), except only the
certificate(s), sight draft(s), Notice(s) of Extension and transfer letter(s)
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificate(s), sight draft(s), Notice(s) of Extension and transfer letter(s).
XIII. The Bank has no responsibility for determining (a) the genuineness of
any documents or certificates presented in accordance herewith or (b) the
authority of any officers or
- 5 -
purported officers who execute and deliver such documents or certificates.
Very truly yours,
Authorized Signature
- 6 -
ANNEX I TO
SERIES A LETTER OF CREDIT
CERTIFICATE FOR PRINCIPAL DRAWING
The undersigned, Texas Commerce Bank National Association (the
"TRUSTEE"), hereby certifies to The Bank of New York (the "BANK"), with
reference to Irrevocable Letter of Credit No. S00031638 (the "LETTER OF
CREDIT") issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Amended and Restated
Indenture of Mortgage and Deed of Trust dated as of November 1, 1994 (the
"INDENTURE"), executed by the Metrocrest Hospital Authority in favor of the
Trustee.
(2) The Trustee is making a drawing under the Letter of Credit with
respect to the payment of the principal of certain Series A Bonds pursuant to
Section 4.01 of the Indenture.
(3) The principal amount of the Series A Bonds in respect of which
this draw is made is $_______________, and the amount of the sight draft
accompanying this Certificate does not exceed such amount.
(4) The amount of the sight draft accompanying this Certificate,
together with the aggregate of all prior payments made pursuant to Principal
Drawings under the Letter of Credit does not exceed $68,600,000.00.
(5) The amount of the sight draft accompanying this Certificate was
computed in accordance with the terms and conditions of the Series A Bonds and
the Indenture and does not exceed the amount available on the date hereof to be
drawn under the Letter of Credit in respect of the Series A Bonds.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ___ day of ___________, 19__.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, TRUSTEE
By:____________________________
Title: ________________________
2
ANNEX II TO
SERIES A LETTER OF CREDIT
CERTIFICATE FOR TENDER DRAWING
The undersigned, Texas Commerce Bank National Association (the
"TRUSTEE"), hereby certifies to The Bank of New York (the "BANK"), with
reference to Irrevocable Letter of Credit No. S00031638 (the "LETTER OF
CREDIT") issued by the Bank in favor of the Trustee, as trustee under the
Amended and Restated Indenture of Mortgage and Deed of Trust dated as of
November 1, 1994 (the "INDENTURE") executed by the Metrocrest Hospital
Authority in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture.
(2) The Trustee is making a drawing in the amount of $_______________
under the Letter of Credit to pay the Purchase Price of Series A Bonds purchased
for the account of the Company pursuant to Section 4.04 of the Indenture and
will cause to be delivered to the Bank, pursuant to that certain Securities
Pledge and Security Agreement, dated as of November 1, 1994, within three (3)
days after the date of this Certificate, Series A Bonds having an aggregate face
amount equal to $_____________ if such Bonds are not resold by the Remarketing
Agent prior to that time.
(3) The amount of the sight draft accompanying this Certificate does
not exceed the amount of the Purchase Price that is due and payable on the date
the draft accompanying this Certificate is payable with respect to such Series A
Bonds to holders thereof other than MHA or the Company.
(4) The amount of the sight draft accompanying this Certificate was
computed in accordance with the terms and conditions of the Series A Bonds and
the Indenture and does not exceed the amount available on the date hereof to be
drawn under the Letter of Credit in respect of the Purchase Price of Series A
Bonds purchased by the Tender Agent pursuant to Section 7.01 of the Indenture.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
- 1 -
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ___ day of ___________, 19___.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, TRUSTEE
By:____________________________
Title: ________________________
- 2 -
ANNEX III TO
SERIES A LETTER OF CREDIT
______________, 19__
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager,
Standby Letter of Credit Dept.
Floor 8 East
Re: The Bank of New York
Irrevocable Letter of Credit
No. S00031638 (the "LETTER OF CREDIT")
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to the following institution (the "TRANSFEREE"), which has succeeded
to us as Trustee under the Amended and Restated Indenture of Mortgage and Deed
of Trust dated as of November 1, 1994, from the Metrocrest Hospital Authority in
favor of the undersigned, all rights of the beneficiary to draw under the Letter
of Credit in its entirety.
(Name of Transferee)
(Address)
By this transfer, all rights of the undersigned beneficiary in the Letter
of Credit are transferred to the Transferee, and the Transferee shall have the
sole rights as beneficiary of the Letter of Credit, including sole rights
relating to any amendments, whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are to be advised
direct to the Transferee without necessity of any consent of or notice to us.
The Transferee hereby directs the Bank to make all payments of drafts
drawn by the Transferee under the Letter of Credit to account number ________ at
___________________________.
- 1 -
The advice of such Letter of Credit is returned herewith, and the Trustee
asks the Bank to endorse the transfer on the reverse thereof, and forward the
Letter of Credit to the Transferee with the Bank's customary notice of transfer.
Very truly yours,
SIGNATURE AUTHENTICATED _____________________, Trustee
_________________________
(Bank) By: __________________________
Title: _______________________
_________________________
(Authorized Signature)
SIGNATURE AUTHENTICATED _______________________________
By: ____________________________
Title: _________________________
_________________________ Transferee
(Bank)
_________________________
(Authorized Signature)
ANNEX IV TO
SERIES A LETTER OF CREDIT
NOTICE OF EXTENSION
OF LETTER OF CREDIT NO. S00031638
________________, 19__
_____________________________, Trustee
_____________________________
_____________________________
_____________________________
National Medical Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: The Bank of New York
Irrevocable Letter of Credit
No. S00031638 (the "LETTER OF CREDIT")
Ladies and Gentlemen:
The Final Expiration Date of the above-captioned Letter of Credit has been
extended from ____________, 19__, to ____________, 19__.
Very truly yours,
THE BANK OF NEW YORK
By: _______________________
Name: _____________________
Title: ____________________
EXHIBIT B
FORM OF SERIES B LETTER OF CREDIT
OUR REFERENCE NO.: DATE:
S00031639 December 6, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Bank National
Association, Trustee
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
Account No. 60730-00
Ladies and Gentlemen:
A. At the request and for the account of National Medical Enterprises,
Inc. (the "COMPANY"), The Bank of New York (the "BANK") hereby irrevocably
establishes in favor of Texas Commerce Bank National Association (the
"TRUSTEE") for the benefit of the holders of the Series B Bonds referred to
below, this direct pay Series B Letter of Credit in an aggregate amount of US
$22,750,000 (TWENTY TWO MILLION SEVEN HUNDRED FIFTY THOUSAND) AND 00/100 U.S.
DOLLARS (as adjusted pursuant to paragraphs 4 and 5 hereof, the "STATED
AMOUNT"), available from time to time in respect of the face amount of Series B
1989 Bonds in the aggregate principal amount of $22,750,000 (the "SERIES B
BONDS") issued by the Metrocrest Hospital Authority ("MHA") pursuant to and
in accordance with the Amended and Restated Indenture of Mortgage and Deed of
Trust dated as of November 1, 1994 (the "INDENTURE") executed by MHA in favor
of the Trustee.
B. Funds under this Letter of Credit are available to:
1. the Trustee, with respect to a drawing made for the payment of
the principal, at maturity, by redemption, upon acceleration under Section 10.02
of the Indenture or otherwise, of the Series B Bonds (a "PRINCIPAL DRAWING"),
against the sight draft(s) of the Trustee, accompanied by a written certificate
purportedly signed by an authorized officer of the Trustee in the form of Annex
I attached hereto, appropriately completed; and the Trustee, with respect to the
payment of the purchase price of the Series B Bonds purchased by the Tender
Agent (as such term is
defined in the Indenture) for the account of the Company pursuant to Section
7.01 of the Indenture (a "TENDER DRAWING"), against the sight draft(s) of the
Trustee, accompanied by a written certificate purportedly signed by an
authorized officer of the Trustee in the form of Annex II attached hereto,
appropriately completed. In connection with any Tender Drawing, Series B Bonds
in aggregate principal amount equal to the amount of the sight draft presented
by the Trustee in respect of any such drawing shall be delivered by the Trustee
to the Bank or its agent or designee as promptly as practicable, and in any
event within three (3) days, after any such Tender Drawing if, prior to such
delivery, such Series B Bonds have not been resold by the Remarketing Agent (as
such term is defined in the Indenture).
Drafts drawn under this Letter of Credit shall state on their face "Drawn
under The Bank of New York Irrevocable Letter of Credit No. S00031639 dated
December 6, 1994". Presentation of each draft and certificate required
hereunder must be made at the Bank's office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Standby Letter of Credit Dept.,
Floor 8 East, not later than April 5, 1995 (the "FINAL EXPIRATION DATE").
All drawings under this Letter of Credit shall be paid only with funds of
the Bank and not from any payments made by the Company to the Bank.
C. The Bank hereby agrees that all drafts drawn under and in compliance
with the terms of this Letter of Credit will be duly honored by the Bank upon
delivery of the documents, as specified, if presented at such office on or
before the Final Expiration Date, unless this Letter of Credit is terminated
earlier as provided in paragraph 9 hereof. If a drawing in respect of payment
is made hereunder at or prior to 10:00 a.m., New York City time, on a Business
Day, and provided that such drawing and the documents presented in connection
therewith conform to the terms and conditions hereof, payment shall be made of
the amount specified, in immediately available funds, not later than the close
of business on such Business Day. If a drawing is made after 10:00 a.m., New
York City time, on a Business Day, and provided that such drawing and the
documents presented in connection therewith conform to the terms and conditions
hereof, payment shall be made of the amount specified not later than 12:00 noon,
New York City time, on the next succeeding Business Day. Payment under this
Letter of Credit to the Trustee shall be transferred by fed wire transfer to
Account No. 7001109635800, at Texas Commerce Bank - Houston, ABA #1130-00609,
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. For purposes of this Letter of Credit,
2
"BUSINESS DAY" shall mean any day other than (i) a Saturday or Sunday or (ii)
a legal holiday or the equivalent on which banking institutions are generally
authorized or required to close in New York, New York or in the city in which is
located (a) the principal corporate trust office of the Trustee, the Tender
Agent (as defined in the Indenture) or the principal offices of the Remarketing
Agent (as defined in the Indenture) or (b) the office of the Issuing Bank or of
its agent at which drafts or claims for payment under the Letter of Credit are
to be presented, or (iii) a day on which the New York Stock Exchange is closed.
D. Multiple drawings may be made hereunder, provided that, subject to
paragraph 5 hereof, each drawing honored by the Bank hereunder shall PRO TANTO
reduce the amount available under this Letter of Credit. Payments made in
respect of any drawing (whether or not complying with the terms of this Letter
of Credit) which have been deposited in any account specified in paragraph 3
hereof (or which have been received by the Trustee in another account specified
by the recipient for such payment) shall automatically reduce the amount which
the Trustee may draw hereunder, notwithstanding any acts or omissions, whether
authorized or unauthorized, of the Trustee, or any officer, director, employee
or agent of the Trustee in connection with any drawing hereunder or the proceeds
thereof or otherwise in connection with this Letter of Credit.
E. Upon payment by the Bank of a Tender Drawing on any Purchase Date (as
defined in the Indenture) for the purchase by the Company of any Series B Bond
or Bonds, the amount available under this Letter of Credit shall be
automatically reinstated, in the amount of such payment and as to such Series B
Bond or Bonds, unless (i) prior to 9:00 a.m., New York City time, on such
Purchase Date, the Trustee and the Remarketing Agent receive telephonic notice
from the Bank, confirmed in writing at any time on the same day, that a Default
or Event of Default (as such terms are defined in the Reimbursement Agreement)
has occurred and is continuing under the Letter of Credit and Reimbursement
Agreement dated as of November 1, 1994, among the Company, the banks party
thereto and the Bank, as issuing bank and agent (the "REIMBURSEMENT
AGREEMENT"), that the Remarketing Agent is to cease remarketing the bonds and
that the Letter of Credit will not be reinstated except as provided in Section
7.04 B. of the Indenture; or (ii) on any such date, there is in effect one or
more letters of credit, or similar facilities providing credit and liquidity
support, accepted by the Trustee before such date in substitution for this
Letter of Credit.
F. Only the Trustee may make a drawing under this Letter of
3
Credit. Upon payment to the Trustee, as provided in paragraph 3 hereof, of the
amount specified in any sight draft(s) drawn hereunder, the Bank shall be fully
discharged of the Bank's obligation under this Letter of Credit with respect to
such sight draft(s), and the Bank shall not thereafter be obligated to make any
further payments under this Letter of Credit in respect of such sight draft(s)
to the Trustee or any other person who makes or who may have made to the Trustee
a demand for payment of principal of, redemption price of, or Purchase Price (as
such term is defined in the Remarketing Agreement) of, any Series B Bond.
G. This Letter of Credit may not be drawn against for payment of principal
of, redemption price of, or Purchase Price of any Series B Bond which is owned
by MHA, the Company, NME Hospitals, the Corporation or any Guarantor (as such
terms are defined in the Indenture).
H. This Letter of Credit is effective immediately and shall expire at 5:00
p.m., New York City time, on the Final Expiration Date, unless terminated
earlier pursuant to Section 9 or unless the Final Expiration Date is extended by
the Bank by delivering to the Trustee a Notice of Extension in the form of Annex
IV hereto. The Bank may deliver to the Trustee a new Letter of Credit in
exchange herefor, or an amendment hereto, to reflect any such extension.
I. This Letter of Credit shall automatically terminate, and shall be
delivered to the Bank for cancellation, upon the earliest to occur of the
following events:
J. the payment by the Bank of the final drawing available to be made
hereunder which is not subject to reinstatement;
(ii) the Bank's receipt of a certificate purportedly signed by a duly
authorized officer of the Trustee and a duly authorized officer
of the Company stating that:
"The undersigned, _________________, a duly authorized officer of
Texas Commerce Bank National Association, and __________, a duly
authorized officer of National Medical Enterprises, Inc., state that no
Series B Bonds remain Outstanding under the Indenture and (ii) upon
receipt by The Bank of New York of this Certificate, The Bank of New
York Irrevocable Letter of Credit No. S00031639 shall terminate.";
4
(iii) 5:00 p.m., New York City time, on the Final Expiration Date, as
the same may be extended from time to time.
K. This Letter of Credit, unless otherwise expressly stated, is subject to
the terms and provisions of the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication 500 (the
"UNIFORM CUSTOMS"), including the provisions thereof providing that parties
may expressly agree to terms and provisions other than as provided in the
Uniform Customs, and, to the extent not inconsistent with the Uniform Customs,
shall be governed by the laws of the State of New York, including without
limitation, Article 5 of the Uniform Commercial Code as in effect in the State
of New York. Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to the Bank at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Manager, Standby Letter of Credit Dept., Floor 8 East, specifically referring
thereon to "The Bank of New York Irrevocable Letter of Credit No. S00031639".
L. This Letter of Credit is transferable in its entirety (but not in part)
to any transferee who has succeeded to the Trustee under the Indenture.
Transfer of the available drawing(s) under this Letter of Credit to any such
transferee shall be effected by the presentation to the Bank of this original
Letter of Credit and any amendments for endorsement thereof on such transfer
accompanied by a transfer letter in the form attached hereto as Annex III
purportedly signed by an authorized officer of the Trustee and an authorized
officer of such transferee.
M. This Letter of Credit sets forth in full the Bank's 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 Series B Bonds), except only the
certificate(s), sight draft(s), Notice(s) of Extension and transfer letter(s)
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificate(s), sight draft(s), Notice(s) of Extension and transfer letter(s).
N. The Bank has no responsibility for determining (a) the genuineness of
any documents or certificates presented in accordance herewith or (b) the
authority of any officers or purported officers who execute and deliver such
documents or certificates.
5
Very truly yours,
__________________________
Authorized Signature
6
ANNEX I TO
SERIES B LETTER OF CREDIT
CERTIFICATE FOR PRINCIPAL DRAWING
The undersigned, Texas Commerce Bank National Association (the
"TRUSTEE"), hereby certifies to The Bank of New York (the "BANK"), with
reference to Irrevocable Letter of Credit No. S00031639 (the "LETTER OF
CREDIT") issued by the Bank in favor of the Trustee, that:
O. The Trustee is the Trustee under the Amended and Restated Indenture of
Mortgage and Deed of Trust dated as of November 1, 1994 (the "INDENTURE"),
executed by the Metrocrest Hospital Authority in favor of the Trustee.
P. The Trustee is making a drawing under the Letter of Credit with respect
to the payment of the principal of certain Series B Bonds pursuant to Section
4.01 of the Indenture.
Q. The principal amount of the Series B Bonds in respect of which this
draw is made is $___________, and the amount of the sight draft accompanying
this Certificate does not exceed such amount.
R. The amount of the sight draft accompanying this Certificate, together
with the aggregate of all prior payments made pursuant to Principal Drawings
under the Letter of Credit does not exceed $22,750,000.
S. The amount of the sight draft accompanying this Certificate was
computed in accordance with the terms and conditions of the Series B Bonds and
the Indenture and does not exceed the amount available on the date hereof to be
drawn under the Letter of Credit in respect of the Series B Bonds.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of _____________, 199_.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, TRUSTEE
By:_____________________________
Title:__________________________
2
ANNEX II TO
SERIES B LETTER OF CREDIT
CERTIFICATE FOR TENDER DRAWING
The undersigned, Texas Commerce Bank National Association (the
"TRUSTEE"), hereby certifies to The Bank of New York (the "BANK"), with
reference to Irrevocable Letter of Credit No. S00031639 (the "LETTER OF
CREDIT") issued by the Bank in favor of the Trustee, as trustee under the
Amended and Restated Indenture of Mortgage and Deed of Trust dated as of
November 1, 1994 (the "INDENTURE") executed by the Metrocrest Hospital
Authority in favor of the Trustee, that:
T. The Trustee is the Trustee under the Indenture.
U. The Trustee is making a drawing in the amount of $____________ under
the Letter of Credit to pay the Purchase Price of Series B Bonds purchased for
the account of the Company pursuant to Section 4.04 of the Indenture and will
cause to be delivered to the Bank, pursuant to that certain Securities Pledge
and Security Agreement, dated as of November 1, 1994, within three (3) days
after the date of this Certificate, Series B Bonds having an aggregate face
amount equal to $____________ if such Bonds are not resold by the Remarketing
Agent prior to that time.
V. The amount of the sight draft accompanying this Certificate does not
exceed the amount of the Purchase Price that is due and payable on the date the
draft accompanying this Certificate is payable with respect to such Series B
Bonds to holders thereof other than MHA or the Company.
W. The amount of the sight draft accompanying this Certificate was
computed in accordance with the terms and conditions of the Series B Bonds and
the Indenture and does not exceed the amount available on the date hereof to be
drawn under the Letter of Credit in respect of the Purchase Price of Series B
Bonds purchased by the Tender Agent pursuant to Section 7.01 of the Indenture.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of _____________, 19__.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, TRUSTEE
By:____________________________
Title:_________________________
2
ANNEX III TO
SERIES B LETTER OF CREDIT
_______________________, 19__
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager,
Standby Letter of Credit Dept.
Floor 8 East
Re: The Bank of New York
Irrevocable Letter of Credit
No. S00031639 (the "LETTER OF CREDIT")
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to the following institution (the "TRANSFEREE"), which has succeeded
to us as Trustee under the Amended and Restated Indenture of Mortgage and Deed
of Trust dated as of November 1, 1994, from the Metrocrest Hospital Authority in
favor of the undersigned, all rights of the beneficiary to draw under the Letter
of Credit in its entirety.
(Name of Transferee)
(Address)
By this transfer, all rights of the undersigned beneficiary in the Letter
of Credit are transferred to the Transferee, and the Transferee shall have the
sole rights as beneficiary of the Letter of Credit, including sole rights
relating to any amendments, whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are to be advised
direct to the Transferee without necessity of any consent of or notice to us.
The Transferee hereby directs the Bank to make all payments of drafts
drawn by the Transferee under the Letter of Credit to account number
_____________ at ____________________.
The advice of such Letter of Credit is returned herewith,
and the Trustee asks the Bank to endorse the transfer on the reverse thereof,
and forward the Letter of Credit to the Transferee with the Bank's customary
notice of transfer.
Very truly yours,
SIGNATURE AUTHENTICATED ____________________, Trustee
________________________ By:__________________________
(Bank) Title:_______________________
________________________
(Authorized Signature)
SIGNATURE AUTHENTICATED _____________________________
By:__________________________
Title:_______________________
Transferee
________________________
(Bank)
________________________
(Authorized Signature)
2
ANNEX IV TO
SERIES B LETTER OF CREDIT
NOTICE OF EXTENSION
OF LETTER OF CREDIT NO. S00031639
______________________, 19___
_______________________, Trustee
_______________________
_______________________
_______________________
National Medical Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: The Bank of New York
Irrevocable Letter of Credit
No. S00031639 (the "LETTER OF CREDIT")
Gentlemen:
The Final Expiration Date of the above-captioned Letter of Credit has been
extended from ___________________, 19___, to ______________________, 19__.
Very truly yours,
THE BANK OF NEW YORK
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT C
AMENDMENT OF SERIES A LETTER OF CREDIT
Reference is made to Irrevocable Letter of Credit No. S00031638 (the
"Series A L/C") issued by The Bank of New York in favor of Texas Commerce Bank
National Association, Trustee.
1. The definition of "Reimbursement Agreement" in paragraph V of the
Series A L/C is amended by deleting the following words:
Letter of Credit and Reimbursement Agreement, dated as of November 1,
1994, among the Company, the banks party thereto and the Bank, as issuing
bank and agent (the "Reimbursement Agreement")
and substituting the following words:
Amended and Restated Letter of Credit and Reimbursement Agreement, dated
as of February 28, 1995, among the Company, the banks party thereto and
the Bank, as issuing bank and agent (as amended from time to time, the
"Reimbursement Agreement")
IN WITNESS WHEREOF the undersigned have signed this Amendment as of
March 1, 1995.
THE BANK OF NEW YORK
By: ______________________
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, Trustee
By: ______________________
Title:
EXHIBIT D
AMENDMENT OF SERIES B LETTER OF CREDIT
Reference is made to Irrevocable Letter of Credit No. S00031639 (the
"Series ▇ ▇/C") issued by The Bank of New York in favor of Texas Commerce Bank
National Association, Trustee.
1. The definition of "Reimbursement Agreement" in paragraph V of the
Series ▇ ▇/C is amended by deleting the following words:
Letter of Credit and Reimbursement Agreement, dated as of November 1,
1994, among the Company, the banks party thereto and the Bank, as issuing
bank and agent (the "Reimbursement Agreement")
and substituting the following words:
Amended and Restated Letter of Credit and Reimbursement Agreement, dated
as of February 28, 1995, among the Company, the banks party thereto and
the Bank, as issuing bank and agent (as amended from time to time, the
"Reimbursement Agreement")
IN WITNESS WHEREOF the undersigned have signed this Amendment as of
March 1, 1995.
THE BANK OF NEW YORK
By: ______________________
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, Trustee
By: ______________________
Title:
2
EXHIBIT E
SECURITIES PLEDGE AND SECURITY AGREEMENT
This SECURITIES PLEDGE AND SECURITY AGREEMENT, dated as of November 1,
1994 ("AGREEMENT"), is made by and among National Medical Enterprises, Inc., a
Nevada corporation (the "PLEDGOR"), Texas Commerce Bank National Association,
as Trustee and as Bond Registrar ("REGISTRAR") under the Indenture
(hereinafter defined) and The Bank of New York, as Issuing Bank under and as
defined in the Reimbursement Agreement (hereinafter defined), on behalf of
itself and the Banks.
PRELIMINARY STATEMENTS:
WHEREAS, the Metrocrest Hospital Authority (the "ISSUER") has agreed
with the Pledgor to issue its first-mortgage hospital revenue bonds, Series
1989A and Series ▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇"), under the Indenture of Mortgage and Deed
of Trust, dated as of December 1, 1989, as amended and restated pursuant to the
Amended and Restated Indenture of Mortgage and Deed of Trust, dated as of
November 1, 1994 (as amended, modified or supplemented from time to time, the
"INDENTURE"), between the Issuer and Texas Commerce Bank National Association,
as Trustee (the "TRUSTEE"); and
WHEREAS, in connection with the issuance of the Bonds the Pledgor has
entered into a Letter of Credit and Reimbursement Agreement dated as of November
1, 1994 (as amended, modified or supplemented from time to time, the
"REIMBURSEMENT AGREEMENT") with certain banks and The Bank of New York, as
Issuing Bank and Agent, pursuant to which the Issuing Bank has agreed to issue
its letters of credit (the "LETTERS OF CREDIT") which may be used, among other
things, to pay the Purchase Price (as such term is defined in the Indenture) of
Bonds that are purchased by the Pledgor pursuant to certain provisions of the
Indenture and the Remarketing Agreement, dated November 1, 1994 (as amended,
modified or supplemented from time to time, the "REMARKETING AGREEMENT") among
the Pledgor, NME Hospitals, Inc., the Trustee, Texas Commerce Bank National
Association, as Tender Agent (the "TENDER AGENT") and Merrill, Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated, as Remarketing Agent (the "REMARKETING
Agent");
WHEREAS, it is a condition precedent to the obligation of the Issuing Bank
to issue the Letters of Credit under the Reimbursement Agreement that the
Pledgor shall have entered into this Agreement, and it is a condition precedent
to the
effectiveness of the Reimbursement Agreement that the Pledgor shall have entered
into this Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein and in
order to induce the Issuing Bank to issue the Letters of Credit, the Pledgor,
the Trustee, the Registrar and the Issuing Bank hereby agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Reimbursement Agreement
and not otherwise defined herein shall have the respective meanings provided for
in the Reimbursement Agreement.
SECTION 2. PLEDGE. The Pledgor hereby pledges and grants to the
Issuing Bank for the benefit of the Issuing Bank and the Banks a security
interest in the following (the "PLEDGED COLLATERAL"):
(a) all of the right, interest and title of the Pledgor in and to the
Bonds and the certificates representing the Bonds, whether now owned or
hereafter acquired;
(b) all proceeds of any and all of the foregoing Pledged Collateral;
and
(c) all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing.
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest and lien
granted by this Agreement secures the payment and performance of all debt,
liabilities and obligations of the Pledgor to the Issuing Bank and the Banks,
fixed or contingent, joint or several, now existing or hereafter arising,
including but not limited to all obligations under and debt evidenced by the
Reimbursement Agreement, and all obligations of the Pledgor to the Issuing Bank
and the Banks now or hereafter existing under this Agreement and any other
agreement or document executed in connection herewith or in connection with the
Reimbursement Agreement (all such obligations and liabilities of the Pledgor
being the "OBLIGATIONS").
SECTION 4. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing any Pledged Collateral which is not
remarketed pursuant to the Remarketing Agreement within three (3) days following
the day on which such Pledged Collateral is acquired by the Tender Agent for the
account of the Company under the Indenture, shall be
2
delivered by the Trustee to and held by or on behalf of the Issuing Bank
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by instruments of transfer or assignment duly executed in blank,
all in form and substance satisfactory to the Issuing Bank. The Issuing Bank
shall have the right at any time after an Event of Default or any event that,
with or without the passage of time or giving of notice (or both), would
constitute an Event of Default (as hereinafter defined) shall have occurred and
be continuing, (i) to transfer to or register in the name of the Issuing Bank or
any of its nominees any or all of the Pledged Collateral, and (ii) to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations, and the
Registrar under the Indenture, agrees to so register the Pledged Collateral on
written demand by the Issuing Bank.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
a. To the best of its knowledge, the Bonds have been duly authorized
and validly issued.
b. The Pledgor has not granted a security interest or lien in or on
any of the Pledged Collateral, except for the security interest created by this
Agreement.
c. The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid first priority security interest in the Pledged Collateral,
securing the payment of the Obligations, which will be perfected by the delivery
of possession of the Pledged Collateral (either actual or constructive
possession) to the Issuing Bank or its bailee.
d. No consent by any other Person and no authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is, to the best knowledge of Pledgor, required either (i) for
the pledge hereunder by the Pledgor of the Pledged Collateral or for the
execution, delivery or performance of this Agreement by the Pledgor, (ii) for
the perfection or maintenance of the security interest created hereby (including
the first priority nature of such security interest), or (iii) for the exercise
of the voting or other rights provided for in this Agreement or the remedies
hereunder in respect of the Pledged Collateral (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally).
3
e. The Pledgor has, independently and without reliance upon the
Issuing Agent or the Banks and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement.
SECTION 6. FURTHER ASSURANCES. The Pledgor agrees that at any time and
from time to time, at its own expense, the Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary, or that the Issuing Bank may reasonably request in good faith,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Issuing Bank to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
SECTION 7. VOTING RIGHTS; DIVIDEND; ETC.
a. So long as no Event of Default (as such term is defined in the
Reimbursement Agreement) shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement or the
Reimbursement Agreement; provided, however, that the Pledgor shall not exercise
or refrain from exercising any such right if, in the Issuing Bank's reasonable
judgment, such action would cause a material adverse change in the value of such
Pledged Collateral.
(ii) The Pledgor shall be entitled to receive and retain any and
all payments paid in respect of the Pledged Collateral owned by it, provided,
however, that any and all
(A) payments paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any such Pledged
Collateral, and
(B) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any such Pledged
Collateral,
shall be, and shall be forthwith delivered to the Issuing Bank to hold as,
Pledged Collateral hereunder and shall, if received by the Pledgor, be received
in trust for the benefit of the Issuing Bank, be segregated from the other
property or funds of the
4
Pledgor, and be forthwith delivered to the Issuing Bank as Pledged Collateral
hereunder in the same form as so received (with any necessary endorsement or
assignment).
(iii) The Issuing Bank shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all proxies and other instruments as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights which it is entitled to exercise pursuant
to paragraph (i) above and to receive the interest payments which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default (as such term is defined in the Reimbursement Agreement):
(i) All rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to
Section 7(a)(i) hereof and to receive the payments which it would otherwise be
authorized to receive and retain pursuant to Section 7(a)(ii) hereof shall
cease, and all such rights shall thereupon become vested in the Issuing Bank who
shall thereupon have the sole right to exercise such voting and other consensual
rights and to receive and hold as Pledged Collateral hereunder such payments.
(ii) All payments which are received by the Pledgor contrary to
the provisions of paragraph (i) of this Section 7(b) shall be received in trust
for the benefit of the Issuing Bank, shall be segregated from other funds of the
Pledgor, and be forthwith paid over to the Issuing Bank as Pledged Collateral
hereunder in the same form as so received (with any necessary endorsement or
assignment).
SECTION 8. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will
not (i) sell or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral, except pursuant to the Remarketing Agreement, or (ii)
create or permit to exist any lien upon or with respect to any such Pledged
Collateral, except for the security interest under this Agreement.
SECTION 9. ISSUING BANK APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Issuing Bank the Pledgor's attorney-in-fact, with full authority in
the place and stead of the Pledgor and in the name of the Pledgor or otherwise,
at any time upon the occurrence and during the continuance of any Event of
5
Default, to take any action and to execute any instrument which the Issuing Bank
reasonably may deem necessary to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and collect all instruments
made payable to the Pledgor representing any interest payment or other
distribution in respect of the Pledged Collateral owned by it or any part
thereof and to give full discharge for the same.
SECTION 10. ISSUING BANK MAY PERFORM. If the Pledgor fails to perform
any agreement contained herein, the Issuing Bank may itself perform, or cause
performance of, such agreement, and the reasonable expenses of the Issuing Bank
incurred in connection therewith shall be payable by the Pledgor under Section
14 hereof.
SECTION 11. ISSUING BANK'S DUTIES. The powers conferred on the Issuing
Bank hereunder are solely to protect its interest in the Pledged Collateral and
shall not impose any duty upon it to exercise any such powers. The Issuing Bank
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which the Issuing
Bank accords its own property, it being understood that except for the safe
custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Issuing Bank shall not have any
responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, tenders or other matters relative to any Pledged
Collateral, whether or not the Issuing Bank has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any parties with respect to any Pledged Collateral.
SECTION 12. REMEDIES UPON DEFAULT. If any Event of Default (as such
term is defined in the Reimbursement Agreement) shall have occurred and be
continuing:
(a) The Issuing Bank may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "Code") in effect in the State of
New York at that time, and the Issuing Bank may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
the Issuing Bank's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as shall be commercially reasonable.
6
The Pledgor agrees that, to the extent notice of sale shall be required by law,
at least ten days' written notice to the Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Issuing Bank shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. The Issuing Bank may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by the Issuing Bank as Pledged Collateral and all
cash proceeds received by the Issuing Bank in respect of any sale of, collection
from, or other realization upon, all or any part of the Pledged Collateral may,
in the discretion of the Issuing Bank, be held by the Issuing Bank as collateral
for, and/or then or at any time thereafter applied (after payment of any amounts
payable to the Issuing Bank pursuant to Section 14 hereof) in whole or in part
by the Issuing Bank against all or any part of the Obligations. Any surplus of
such cash or cash proceeds held by the Issuing Bank and remaining after payment
in full of all the Obligations shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION 13. REGISTRATION RIGHTS. If the Issuing Bank shall determine
to exercise its right to sell all or any of the Pledged Collateral pursuant to
Section 12 hereof, and shall determine in good faith that it is necessary or
advisable to register such Pledged Collateral under the provisions of the
Securities Act of 1933, as from time to time amended ("Securities Act") in order
to sell such Pledged Collateral in foreclosure of the security interest of the
Issuing Bank, the Pledgor agrees that, upon the reasonable request of the
Issuing Bank, the Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Pledged
Collateral contemplated to be sold and the directors and officers thereof to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the opinion of
the Issuing Bank, advisable to register such Pledged Collateral under the
provisions of the Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the opinion of the
Issuing Bank, are necessary or advisable, all in conformity with
7
the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Pledged Collateral under the
state securities or "Blue Sky" laws of the required states and to obtain all
necessary governmental approvals for the sale of the Pledged Collateral, as
requested by the Issuing Bank;
(c) cause each such issuer to make available to its security holders,
as soon as practicable, an earning statement which will satisfy the provisions
of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof valid
and binding and in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages which would be suffered by the Issuing Bank by reason of the failure by
the Pledgor to perform any of the covenants contained in this Section and,
consequently, agrees that, if the Pledgor shall fail to perform any of such
covenants, it shall pay, as liquidated damages and not as a penalty, an amount
equal to the value of the Pledged Collateral on the date the Issuing Bank shall
demand compliance with this Section.
SECTION 14. INDEMNITY AND EXPENSES. The Pledgor agrees to indemnify
each of the Issuing Bank, each Bank and the Trustee from and against any and all
claims, losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Issuing Bank's, such Bank's or the
Trustee's, as the case may be, gross negligence or willful misconduct.
SECTION 15. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Pledgor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Issuing Bank, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 16. ADDRESSES FOR NOTICES. Unless otherwise provided herein,
all notices, requests, consents, demands and
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other communications to any party hereto shall be in writing and shall be
mailed, certified mail with return receipt requested, postage prepaid, or
telegraphed, cabled, telexed, telecopied or otherwise physically delivered to
its respective address as set forth in the Reimbursement Agreement, or the
Indenture or, as to any party, to such other address as may be designated by it
in written notice to all other parties. All notices, requests, consents and
demands hereunder will be effective, if addressed to the Issuing Bank or the
Pledgor or the Trustee as aforesaid, when mailed by certified mail, postage
prepaid, return receipt requested, or upon delivery if telegraphed, cabled,
telexed, telecopied or otherwise physically delivered, addressed as aforesaid.
SECTION 17. CONTINUING SECURITY INTEREST; RELEASE. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) remain in full force and effect until payment in full of the Obligations,
(ii) be binding upon the Pledgor, its successors and assigns, and (iii) inure,
together with the rights and remedies hereunder, to the benefit of the Issuing
Bank and its respective successors, transferees and assigns; provided however,
notwithstanding the foregoing, the security interest granted herein in any Bond
now owned or hereafter acquired by the Pledgor shall be deemed released with
respect to such Bond if, after it is acquired by the Pledgor, it is sold by the
Remarketing Agent pursuant to the Remarketing Agreement. Upon the payment in
full of the Obligations and the termination and expiration of the Letters of
Credit, the Pledgor shall be entitled to the return, upon its request and at its
expense, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 18. SECURITY INTEREST ABSOLUTE. All rights of the Issuing Bank
and security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective, to the extent permitted by
applicable law, of:
(a) any lack of validity or enforceability of the Reimbursement
Agreement, any other document or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Reimbursement
Agreement, or any other document;
9
(c) any taking, exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other disposition
of any collateral for all or any part of the Obligation or any other
assets of the Pledgor or any Subsidiary of the Pledgor;
(e) any change, restructuring or termination of the corporate
structure or existence of the Pledgor or any Subsidiary of the Pledgor; or
(f) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Pledgor or a third party
pledgor (except for payment of the Obligations in full).
SECTION 19. ACTIONS BY ISSUING BANK.
(a) The Pledgor specifically waives any notice of the creation,
advancement, existence, extension or renewal of, or of any indulgence with
respect to, the Obligations or any part thereof, and of nonpayment thereof or
default thereon, and waives demand, protest, presentment and notice of demand,
protest and presentment with respect to the Obligations, and waives notice of
the amount of the Obligations outstanding at any time, and agrees that the
maturity of the Obligations, and any part thereof, may be accelerated, extended
or renewed by the Issuing Bank or other Persons entitled thereto in its or their
discretion or as may be agreed without notice to or consent by the Pledgor.
(b) The execution and delivery of this Agreement in no manner shall
impair or affect any other security (by endorsement or otherwise) for the
payment of the Obligations and no security taken hereafter as security for
payment of the Obligations shall impair in any manner or affect this Agreement,
all such present and further additional security to be considered as cumulative
security. Any of the collateral for, or any obligor on, any of the Obligations
may be released without altering, varying or diminishing in any way the force,
effect, lien, security interest, or charge of this Agreement as to the Pledged
Collateral not expressly released, and this Agreement shall continue as a
security interest and charge on all of the Pledged Collateral not expressly
released until all the Obligations secured hereby have been paid in full.
10
SECTION 20. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 21. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same agreement.
SECTION 22. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR, THE REGISTRAR
AND THE ISSUING BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, each of the Pledgor, the Trustee, and the Issuing Bank
have caused this Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
NATIONAL MEDICAL ENTERPRISES, INC.
By: ________________________
Its: ________________________
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IN WITNESS WHEREOF, each of the Pledgor, the Trustee, and the Issuing Bank
have caused this Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, AS TRUSTEE AND
AS REGISTRAR
By: ________________________
Its: ________________________
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IN WITNESS WHEREOF, each of the Pledgor, the Trustee, and the Issuing Bank
have caused this Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
THE BANK OF NEW YORK, AS ISSUING BANK
By: ________________________
Its: ________________________
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EXHIBIT F
OFFICER'S CERTIFICATE
AS TO CONTINUED ACCURACY OF
REPRESENTATIONS AND NO DEFAULT
Pursuant to Section 5.01(d) of the Amended and Restated Letter of
Credit and Reimbursement Agreement dated as of February 28, 1995 among National
Medical Enterprises, Inc. (the "Company"), the Banks party thereto and The Bank
of New York, as Issuing Bank and Agent (as the same may be amended from time to
time, the "Agreement"), the undersigned Executive Vice President, Senior Vice
President, Treasurer or Assistant Treasurer of the Company hereby certifies as
follows:
1. The representations and warranties of the Company set forth or
incorporated by reference in the Agreement or which are
contained in any certificate, document or financial or other
statement furnished in connection with the Agreement are true
and correct on and as of the date hereof with the same effect
as if made on the date hereof;
2. Immediately after the Agreement becomes effective, no Default
or Event of Default (both as defined in the Agreement) will
have occurred and be continuing under the Agreement.
Dated: ____________, 1995
NATIONAL MEDICAL ENTERPRISES, INC., a Nevada
corporation
By:_____________________________
Title:
EXHIBIT I
[Closing Date]
To: Bank of America NT&SA
Bankers Trust Company
▇▇▇▇▇▇ Guaranty Trust
Company of New York and
The Bank of New York,
Re: Amended and Restated Credit and Reimbursement Agreement dated as of
February 28, 1995 among National Medical Enterprises, Inc., the
Banks and the Issuing Bank
Ladies and Gentlemen:
We have acted as special counsel to N.M.E. International (Cayman)
Limited, a Cayman Islands company ("NME (Cayman)"). Reference is made to the
Security Agreement dated as of February 28, 1995 (the "Security Agreement")
among National Medical Enterprises, Inc. NME (Cayman) and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Collateral Agent. Terms defined in the Security
Agreement and not otherwise defined herein are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
(1) NME (Cayman) is a validly existing company in good standing
under the law of the Cayman Islands, with requisite corporate power and legal
right (i) to own and operate its properties and conduct its business as now
conducted and (ii) to execute and deliver, and perform its obligations under,
the Security Agreement as Collateral Agent pursuant to which NME (Cayman) will
pledge the Westminster stock to NME's Banks, including, without limitation, to
pledge the Westminster stock owned by it to secure the Secured Obligations (as
defined in the Security Agreement);
(2) The execution and delivery of the Security Agreement by NME
(Cayman), and performance of its obligations thereunder (including, without
limitation, the pledge of the Westminster stock owned by it to secure the
Secured Obligations), has been duly authorized by all necessary corporate action
on the part of NME (Cayman) and, upon execution of the Security Agreement by
officers of NME (Cayman) then incumbent, the Security Agreement will have been
duly executed by NME (Cayman);
(3) No consents, approvals or authorizations by, or filings or
recordings with, any governmental authority in the Cayman Islands is necessary
to be obtained or made in connection with the execution and delivery by NME
(Cayman) of the Security Agreement, or performance of its obligations
thereunder, including, without limitation, the pledge by NME (Cayman) of the
Westminster stock owned by it to secure the Secured Obligations;
(4) The execution and delivery by NME (Cayman) of the Security
Agreement, and performance of its obligations thereunder (including, without
limitation, the pledge by NME (Cayman) of the Westminster stock owned by it to
secure the Secured Obligations), does not violate any law, rule or regulation of
the Cayman Islands or any Cayman Islands governmental or judicial order or
decree of which we are aware to which NME (Cayman) is subject.
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EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee") and THE BANK OF NEW YORK, as Issuing
Bank (the "Issuing Bank").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement relates to the
Amended and Restated Reimbursement Agreement dated as of February 28, 1995 among
National Medical Enterprises, Inc., as Account Party, Bank of America National
Trust and Savings Association, The Bank of New York, Bankers Trust Company and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Banks, and The Bank of New York,
as Issuing Bank (as amended from time to time, the "Agreement");
WHEREAS, as provided under the Agreement, the Assignor has a
Commitment in an aggregate amount not to exceed $__________ to participate in
the Letters of Credit issued thereunder;
WHEREAS, as of the date hereof Reimbursement Obligations in an
amount equal to $_______________ are outstanding under the Agreement;
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Agreement in respect of a pro-rata portion of
its Commitment in an amount equal to $_______________ (the "Assigned Amount"),
and the Assignee proposes to accept such assignment of such rights and assume
the corresponding obligations from the Assignor;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties
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hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Agreement with respect
to its Commitment to the extent of the Assigned Amount, and the Assignee hereby
accepts such assignment from the Assignor and assumes all of the obligations of
the Assignor under the Agreement to the extent of the Assigned Amount, including
the purchase from the Assignor of a pro-rata portion of the Reimbursement
Obligations outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Company and the Issuing Bank and the
payment of the amounts specified in Section 3 required to be paid on the date
hereof (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Agreement with a
Commitment in an aggregate amount equal to the Assigned Amount and a
corresponding portion of Reimbursement Obligations, (ii) the Commitment of the
Assignor shall, as of the date hereof, be correspondingly reduced and the
Assignor released from its obligations under the Agreement to the extent such
obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them. It
is understood that fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Agreement which is for the account of
the other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. CONSENT OF THE ISSUING BANK. This Agreement is
conditioned upon the consent of the Issuing Banks pursuant to Section 11.06(c)
of the Agreement.
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SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of the Company,
the existence or value of the Collateral or the validity and enforceability of
the obligations of the Company in respect of any Financing Document. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
5
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By___________________
Title:
[ASSIGNEE]
By___________________
Title:
The undersigned consents to the foregoing assignment:
THE BANK OF NEW YORK,
as Issuing Bank
By____________________
Title:
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SCHEDULE I
LIST OF COMMITMENTS
BANK COMMITMENT
---- ----------
The Bank of New York $22,837,500
Bank of America National
Trust and Savings Association 22,837,500
Bankers Trust Company 22,837,500
▇▇▇▇▇▇ Guaranty Trust
Company of New York 22,837,500
-----------
TOTAL $91,350,000
-----------
-----------
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