AMENDMENT NO. 2 TO REIMBURSEMENT AGREEMENT
AMENDMENT No. 2 dated as of January 30, 1997 to the Amended and
Restated Letter of Credit and Reimbursement Agreement dated as of February 28,
1995, as heretofore amended (as so amended, the "Reimbursement Agreement"),
among XXXXX HEALTHCARE CORPORATION, as account party, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Banks, and THE BANK OF NEW YORK, as Issuing Bank.
WHEREAS, the Reimbursement Agreement incorporates by reference, or
otherwise refers to, certain provisions of the 1996 Credit Agreement (as defined
therein);
WHEREAS, the 1996 Credit Agreement is to be replaced by a new credit
agreement (the "1997 Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Reimbursement
Agreement so that it refers to the relevant provisions of the 1997 Credit
Agreement rather than the 1996 Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS, REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Reimbursement
Agreement has the meaning assigned to such term in the Reimbursement Agreement.
Each reference to "hereof", "hereunder", "herein", and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Reimbursement Agreement shall, after this Agreement
becomes effective, refer to the Reimbursement Agreement as amended hereby.
SECTION 2. AMENDMENT OF DEFINITIONS. The definitions in Section
1.01 of the Reimbursement Agreement are amended as follows:
(a) The definition of "Letter of Credit Fee Rate" is deleted and
replaced by the following definition:
"Letter of Credit Fee Rate" means a rate per annum equal to the
LC Fee Rate determined in accordance with the Pricing Schedule
attached to the 1997 Credit Agreement.
(b) The following new definitions are added immediately after the
definition of "1996 Credit Agreement":
"1997 Closing Date" means the "Closing Date", as such term is
defined in the 1997 Credit Agreement.
"1997 Credit Agreement" means the Credit Agreement dated as of
January 30, 1997 among the Company, the Lenders, Managing Agents and
Co-Agents party thereto, The Bank of New York and The Bank of Nova
Scotia, as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, and Xxxxxx Guaranty Trust
Company of New York as Administrative Agent, as such agreement may be
amended from time to time.
(c) The definition of "Termination Date" is amended to read as
follows:
"Termination Date" means the date which is five Business Days
prior to the "Termination Date" under and as defined in the 1997
Credit Agreement.
SECTION 3. LETTER OF CREDIT FEE. Section 3.01(a) of the
Reimbursement Agreement is amended to read as follows:
(a) LETTER OF CREDIT FEE. For the account of the Banks, a letter of
credit fee calculated for each day at the Letter of Credit Fee Rate for
such day on the aggregate outstanding face amount of the Series A L/C and
the Series X X/C on such day. Such letter of credit fee shall accrue from
and including the 1997 Closing Date to and including the Termination Date
and shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December and on the Termination Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Section 4.03 of the
Reimbursement Agreement is amended to read as follows:
SECTION 4.03 REPRESENTATIONS TO BE UPDATED. In connection with any
extension of the Letters of Credit after the 1997 Closing Date, the Company will
update the following representations and warranties as provided in Section
5.02(b) hereof:
(i) the representations and warranties made by the Company in
Section 4.01 of this Agreement;
(ii) the representations and warranties made by the Company in
Sections 4.04 through 4.14 of the 1997 Credit Agreement (defined terms
used therein having the meanings assigned to such terms in the 1997
Credit Agreement except that, for purposes of this Agreement, (A) the
term "Financing Documents" shall include this Agreement, the Lease
Guaranty and the Letters of Credit and (B) the terms "this Agreement"
and "hereby" contained in Section 4.12 thereof shall include this
Agreement);
(iii) the representations and warranties made by the Company
in the Securities Pledge and Security Agreement; and
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(iv) any other representations and warranties made by the Company
in any certificate, document or financial or other statement furnished
at any time hereunder or in connection herewith.
SECTION 5. CONDITIONS TO EXTENSIONS OF LETTERS OF CREDIT. Section
5.02(b) of the Reimbursement Agreement is amended to read as follows:
(b) the fact that each of the representations and warranties
referred to in Section 4.03 hereof 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 date may be); and
SECTION 6. INCORPORATION OF COVENANTS BY REFERENCE. Section 6.01
of the Reimbursement Agreement is amended to read as follows:
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 5 of the 1997 Credit Agreement
and such covenants and undertakings are hereby incorporated herein by reference.
Defined terms used in Article 5 of the 1997 Credit Agreement have the meanings
assigned such terms in the 1997 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 the Issuing Bank.
SECTION 7. CROSS DEFAULT. Section 7.01(e) of the Reimbursement
Agreement is amended to read as follows:
(e) An Event of Default under and as defined in the 1997 Credit
Agreement shall have occurred and be continuing; or
SECTION 8. AMENDMENTS AND WAIVERS. Section 11.05(B) of the
Reimbursement Agreement is amended to read as follows:
(B) Any amendment or waiver of any provision of Articles 4 and 5 (or
any related definition) of the 1997 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 1997 Credit Agreement.
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SECTION 9. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 10. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The
Company represents and warrants that, on the 1997 Closing Date, the
representations and warranties made by the Company in Section 4.03 of the
Reimbursement Agreement are true in all material respects, and no Default has
occurred and is continuing.
SECTION 11. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effective as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective and binding on the parties
hereto when:
(i) the Issuing Bank shall have received from each of the Company,
the Banks and the Issuing Bank either a counterpart hereof signed by such
party or telex, facsimile or other written confirmation satisfactory to it
that such party has signed a counterpart hereof;
(ii) the Issuing Bank shall have received a xxx of the 1997 Credit
Agreement in the form signed by all the parties thereto and the 1997 Credit
Agreement shall have become effective; and
(iii) the Company shall have paid to the Issuing Bank (A) all fees
accrued for the account of the Banks to but excluding the 1997 Closing Date
pursuant to Section 3.01(a) of the Reimbursement Agreement and (B) all
Reimbursement Obligations and other amounts (if any) due and payable to the
Issuing Bank on or before the 1997 Closing Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the date and year
first above written.
XXXXX HEALTHCARE CORPORATION
By: /S/ XXXXX X. XXXXX
-----------------------------------
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /S/ XXXXX X. XXXXXXX
-----------------------------------
Title: Managing Director
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /S/ XXXXX X. XXXXX
-----------------------------------
Title: Vice President
THE BANK OF NEW YORK, as a Bank
By: /S/ XXXX X. XXXXX
-----------------------------------
Title: Vice President
THE BANK OF NEW YORK, as Issuing Bank
By: /S/ XXXX X. XXXXX
-----------------------------------
Title: Vice President
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SCHEDULE I
LIST OF COMMITMENTS
AS OF 1997 CLOSING DATE
BANK COMMITMENT
---- ----------
The Bank of New York $28,983,333.34
Bank of America National Trust and 28,983,333.33
Savings Association
Xxxxxx Guaranty Trust Company of New York 28,983,333.33
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TOTAL $86,950,000.00
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