Exhibit 10.17
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
AMENDMENT NO. 1, dated as of November 1, 2002 (this "Amendment"), to
and under the Credit and Guaranty Agreement, dated as of October 17, 2002, among
WellChoice, Inc., as Borrower and guarantor, Empire HealthChoice Assurance, Inc.
and Empire HealthChoice HMO, Inc., as Applicants, the Lenders party thereto, The
Bank of New York, as Issuing Bank, HSBC Bank USA and Wachovia Bank, National
Association, as Co-Syndication Agents, and The Bank of New York, as
Administrative Agent (the "Credit Agreement").
RECITALS
A. Capitalized terms used herein that are defined in the Credit
Agreement shall have the same meanings as therein defined.
B. The parties desire to amend the Credit Agreement to the extent set
forth herein subject to the terms and conditions hereof.
Accordingly, in consideration of the terms and conditions hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Section 1.1 of the Credit Agreement is hereby amended by amending
and restating subsection (g) of the definition of "Conversion Transactions" to
read as follows:
(g) the Borrower's registration statement with respect to the
initial public offering of its stock has been declared effective.
2. This Amendment shall not be effective until such time as the
Administrative Agent (or its counsel) shall have received from each of the Loan
Parties and Required Lenders either (i) a counterpart of this Amendment signed
on behalf of such Person or (ii) written evidence satisfactory to the
Administrative Agent (which may include facsimile transmission of a signed
signature page of this Amendment) that such Person has signed a counterpart of
this Amendment.
3. This Amendment may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of this
Amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
4. The Credit Agreement and the other Loan Documents shall in all other
respects remain in full force and effect, and no amendment, consent, waiver, or
other modification herein in respect of any term or condition of any Loan
Document shall be deemed to be an amendment, consent, waiver or other
modification in respect of any other term or condition of any Loan Document.
5. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES TO FOLLOW]
-2-
WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
WELLCHOICE, INC.
By:
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Name:
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Title:
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EMPIRE HEALTHCHOICE
ASSURANCE, INC.
By:
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Name:
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Title:
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EMPIRE HEALTHCHOICE HMO,
INC.
By:
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Name:
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Title:
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WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
THE BANK OF NEW YORK,
individually, as Issuing Bank and as
Administrative Agent
By:
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Name:
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Title:
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WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
HSBC BANK USA
By:
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Name:
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Title:
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WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands
Branch
By:
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Name:
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Title:
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WELLCHOICE, INC.
AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT
JPMORGAN CHASE BANK
By:
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Name:
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Title:
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