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EXHIBIT 10.31
AMENDMENT NO. 1 AND WAIVER TO PARTICIPATION AGREEMENT
This AMENDMENT NO. 1 AND WAIVER TO PARTICIPATION AGREEMENT (this
"Amendment"), is entered into as of May 27, 1997, among XXXXXXX ENTERPRISES,
INC., a Delaware corporation, as the Representative, Construction Agent and
Parent Guarantor (in its capacity as Representative, the "Representative"; in
its capacity as Construction Agent, the "Construction Agent"; and, in its
capacity as Parent Guarantor, the "Parent Guarantor") and together with the
Guarantors listed on the signature page to the Guaranty (each a "Guarantor")
and the Structural Guarantors, the "Guarantors"); BMO LEASING (U.S.), INC., a
Delaware corporation, as a Lessor (together with any permitted successors and
assigns thereto, each a "Lessor" and collectively the "Lessors"); BMO LEASING
(U.S.), INC., as Agent Lessor for the Lessors (in such capacity, the "Agent
Lessor"); THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
("LTCB"), BANK OF MONTREAL, a Canadian banking organization ("BMO"), and the
other various financial institutions as are or may from time to time become
lenders (the "Lenders") under the Loan Agreement; LTCB as Administrative Agent
(in such capacity, the "Administrative Agent") for the Lenders and as Arranger
(in such capacity, the "Arranger"); and BMO, as Co-Arranger and Syndication
Agent (collectively, the "Parties").
R E C I T A L S:
A. The Parties entered into a Participation Agreement dated
as of March 21, 1997 (the "Participation Agreement"); and
B. The Parties desire to amend Section 3.4 and Appendix A to
the Participation Agreement and to waive a provision under Section 6.2(b) of
the Participation Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises made hereunder,
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions. Unless otherwise expressly defined herein,
all capitalized terms used herein and defined in Appendix A to the
Participation Agreement shall be used herein as so defined. Unless otherwise
expressly stated herein, all Section and Article references herein shall refer
to Sections and Articles of the Participation Agreement.
2. Amendment to "London Interbank Offered Rate". The term
"London Interbank Offered Rate" as contained in Appendix A of the Participation
Agreement is hereby amended in its entirety as follows:
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"London Interbank Offered Rate" means, as applicable to any
Eurodollar Loan, for the Interest Period of such Eurodollar Loan, the
rate per annum determined by the Administrative Agent on the basis of
the offered rate for deposits in Dollars of amounts equal or comparable
to the principal amount of such Eurodollar Loan offered for a term
comparable to such Interest Period, which rates appear on the Reuters
Screen LIBO Page as of 11:00 A.M., London time, two (2) Business Days
prior to the first day of such Interest Period, provided that (i) if
more than one such offered rate appears on the Reuters Screen LIBO Page,
the "London Interbank Offered Rate" will be the arithmetic average
(rounded upwards, if necessary, to the next higher 1/100th of it) of
such offered rates; (ii) if no such offered rates appear on such page,
the "London Interbank Offered Rate" for such Interest Period will be the
rate per annum quoted by the Administrative Agent's London Branch two
(2) Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered to leading banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of
such Eurodollar Loan; and (iii) with respect to an Interest Period of a
duration less than one month, the "London Interbank Offered Rate" for
such Interest Period will be the rate per annum quoted by the
Administrative Agent's London Branch two (2) Business Days prior to the
first day of such Interest Period, for deposits in Dollars offered to
the Administrative Agent for a period comparable to such Interest Period
in an amount comparable to the principal amount of such Eurodollar Loan.
3. Amendment to Section 3.4(a). The third sentence of
Section 3.4(a) of the Participation Agreement is hereby amended in its entirety
as follows:
"Such Loans and Lessor Amounts made with respect to each Advance (i) if
made on a day other than a Scheduled Payment Date or an Acquisition
Date, shall be Base Rate Loans/Lessor Amounts and (ii) if made on a
Scheduled Payment Date or an Acquisition Date, shall be Eurodollar
Loans/Lessor Amounts, and the duration of the initial Interest Period
with respect to such Advance shall begin on the proposed Acquisition
Date or Funding Date and end on the next succeeding Scheduled Payment
Date (the "Initial Interest Period")."
4. Waiver of As-Built Appraisal Delivery Requirement.
Effective as of the Effective Date, each of the Participants hereby waives the
delivery requirements of Section 6.2(b) of the Participation Agreement with
respect to the As-Built Appraisal for the Property located in Xxxx County,
Georgia and acquired pursuant to the Operative Documents on May 30, 1997 until
the earlier of (i) 30 days after the Effective Date and (ii) the next
succeeding Funding Date with respect to such Property. The failure to deliver
the As-Built Appraisal as provided in this Section 4 shall constitute a failure
by the Representative to observe and perform a covenant under the Participation
Agreement.
5. Effective Date. This Amendment shall be effective and the
Participation Agreement amended as of May 27, 1997 (the "Effective Date"), as
if entered into on such date.
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6. Effect of Amendment. The Parties agree that, except as
amended hereby or hereafter, the Participation Agreement and any and all other
agreements, documents, certificates and other instruments executed in
connection therewith shall remain in full force and effect in accordance with
their terms. Any reference to the Participation Agreement shall be deemed to
be a reference to the Participation Agreement as amended by this Amendment.
7. Counterparts. This Amendment may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX ENTERPRISES, INC., as
Representative, Construction Agent and
Parent Guarantor
By
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Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as Arranger,
Administrative Agent
and as a Lender
By
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Name:
Title:
BMO LEASING (U.S.),
INC., as Agent Lessor and as a Lessor
By
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Name:
Title:
BANK OF MONTREAL, as Co-Arranger and as a
Lender
By
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Name:
Title:
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VANTAGE HEALTHCARE CORPORATION, as Lessee
and Structural Guarantor
By
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Name:
Title:
XXXXXXXX HEALTH CARE, INC., as Lessee and
Structural Guarantor
By
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Name:
Title:
XXXXXXX SAVANA CAY MANOR, INC., as Lessee
and Structural Guarantor
By
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Name:
Title:
XXXXXXX ENTERPRISES - GEORGIA, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
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XXXXXXX ENTERPRISES - CALIFORNIA, INC., as
Lessee and Structural Guarantor
By
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Name:
Title:
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