WAIVER AND AMENDMENT AGREEMENT WAIVER AND AMENDMENT AGREEMENT, dated as of
April 14, 1997 among Daiwa Healthco-2 LLC, a Delaware limited liability company
(the "Lender"), CCA Funding LLC, a Delaware limited liability company (the
"Borrower") and Community Care of America, Inc., a Delaware corporation (the
"CCA").
The Borrower, the Lender and CCA have entered into a Loan and Security
Agreement, dated as of December 23, 1996 (as the same may be amended, modified,
restated or supplemented, the "Loan Agreement") pursuant to which the Lender
makes revolving Loans to the Borrower secured by healthcare receivables.
Capitalized terms used but not defined herein shall have the meanings given such
terms in the Loan Agreement.
The Borrower has requested that the Lender waiver certain provisions of the
Loan Agreement and amend certain provisions of the Loan Agreement.
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and subject to the fulfillment of the conditions set forth below,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE LOAN AGREEMENT.
1.1 Clause (i) of Section 1.05(a) is amended in its entirety to read as
follows:
"(i) beginning March 10, 1997, on the Basic Borrowing Amount (or
any lesser principal amount outstanding from time to time), at an
interest rate per annum equal to the LIBO Rate for the Interest
Period in effect for such Revolving Advance plus a margin equal
to 2.25% which margin shall increase by 0.50% on April 1, 1997
and on the first Business Day of each month thereafter that this
clause (a) is applicable, and"
1.2 Clause (ii) of Section 1.05(a) is amended by deleting the phrase
"during the Special Period," where it appears therein.
1.3 Clause SECOND of Section 2.02 of the Loan Agreement is hereby amended
in its entirety to read as follows: "SECOND, to the Lender, (i) an amount in
cash equal to the payment, if any, of principal on the Revolving Loan up to the
Basic Borrowing Amount due and payable on such Funding Date, until such amount
has been paid in full and (ii) an amount in cash equal to the payment, if any,
of principal on the Revolving Loan in excess of the Basic Borrowing Amount until
such amount has been paid in full;"
1.4 The definition of "Special Period"
contained in Exhibit I is amended by deleting the phrase "the three month
anniversary of the Initial Funding Date" and inserting in its place the date
"April 1, 1996".SECTION 2. WAIVERS2.1 CCA has removed a Provider under the
Healthcare Receivables Purchase and Transfer Agreement, dated as of December 23,
1196 (as amended, modified, supplemented or restated, the "RPA") among CCA, each
of the Providers named therein and the Borrower. Such removal (the "Prohibited
Removal") constitutes an Event of Termination pursuant to Section
5.19(b)(iii)(x) and (y) of the RPA and an Event of Default under Clause (d) of
Exhibit V of the Loan Agreement. Subject to the fulfillment of the conditions
set forth below, the Lender hereby waives the Event of Default under the Loan
Agreement caused by the Prohibited Removal.2.2 the Borrower is in violation of
clause(j)(ix) of Exhibit IV of the Loan Agreement, the violation of which has
resulted in an Event of Default. The Lender hereby waives such Event of Default
solely for the 1996 fiscal year of the Borrower, provided that each of the
Borrower and CCA allow an agent of the Lender to conduct an audit of books and
records of CCA and the Borrower, in scope and substance necessary to reach the
conclusions that would otherwise have been covered by the certificate required
under clause(j)(ix) of Exhibit IV to the Loan Agreement. Should the Lender, in
its sole discretion, determine that CCA or the Borrower has not allowed the
Lender's agent access to its books and records or is otherwise not cooperating
with the audit, the waiver contained in this Section 2.2 shall be null and void
and the Event of Default described herein shall be reinstated. SECTION 3.
CONDITIONS PRECEDENT This Amendment Agreement (the "Agreement") shall be
effective upon the execution and delivery of counterparts hereof by the parties
listed below and the fulfillment of the following conditions.3.1 All
representations and warranties contained in this Agreement or otherwise made in
writing to the Lender in connection herewith shall be true and correct in all
material respects. 3.2 No unwaived event shall have occurred and be continuing
which constitutes a Default or an Event of Default. 3.3 The Primary Servicer
shall have issued a Warrant To Purchase Common Stock of Community Care of
America, Inc. in the form of Exhibit A attached hereto. 3.4 Integrated Health
Services shall have executed a Guaranty in favor of the Lender in the form of
Exhibit B attached hereto. SECTION 4. MISCELLANEOUS 4.1 Each of the Borrower and
CCA reaffirms and restates the representations and warranties set forth in the
Loan Agreement and the RPA, and all such representations and warranties shall be
true and correct on the date hereof with the same force and effect as if made on
such date. Each of the Borrower and CCA represents and warrants as to itself
(which representations and warranties shall survive the execution and delivery
hereof) to the Agent that: (a) No consent of any person, including, without
limitation, shareholders, members or creditors of the Borrower or CCA, and no
action of, or filing with any
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governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution, delivery and performance of
this Agreement; (b) This Agreement has been duly executed and delivered by
a duly authorized officer on behalf of each of the Borrower and CCA, and
constitutes the legal, valid and binding obligations of each, enforceable in
accordance with its terms, except as enforcement thereof may be subject to the
effect of any applicable (i) bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law); and (c) The execution, delivery and
performance of this Agreement will not violate any law, statute or regulation
applicable to the Borrower or CCA, or any order or decree of any court or
governmental instrumentality applicable to such company, or conflict with, or
result in the breach of, or constitute a default under any contractual
obligation of such company. 4.2 Except as herein expressly amended, the Loan
Agreement and the other Documents are each ratified and confirmed in all
respects and shall remain in full force and effect in accordance with their
respective terms. 4.3 Except as specifically set forth herein, nothing herein
contained shall constitute a waiver or be deemed to be a waiver, of any
existing Defaults or Events of Default or of any Events of Termination under
the RPA and the Lender reserves all rights and remedies granted to it by the
Loan Agreement and the other Documents, by law and otherwise. 4.4 All
references to the Loan Agreement in any Document shall mean the Loan
Agreement as amended hereby. 4.5 This Agreement may be executed by the
parties hereto individually or in combination, in one or more counterparts,
each of which shall be an original and all of which shall constitute one and
the same agreement. A facsimile signature page shall constitute an original
for the purposes hereof. 4.6 THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written. DAIWA HEALTHCO-2 LLC By: DAIWA SECURITIES
AMERICA, Its Manager By: Xxxxx Xxxx Vice President COMMUNITY CARE OF AMERICA,
INC. By: Name: Title: CCA FUNDING LLC By: Name: Title:
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