EXHIBIT 10.2
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1, dated as of October __, 2001 (this "Amendment"), to
the Loan and Security Agreement, dated as of April 6, 2001 (as amended,
restated, modified or supplemented from time to time in accordance with its
terms, the "LSA") between ATC FUNDING, LLC, a limited liability company
organized under the laws of the State of Delaware, as borrower (together with
its successors and assigns, the "Borrower"), and HFG HEALTHCO-4 LLC, a limited
liability company organized under the laws of the State of Delaware (together
with its successors and assigns, the "Lender").
1. Defined Terms. Unless otherwise specifically defined herein, all
capitalized terms used herein shall have the meanings ascribed to such terms in
the LSA.
2. Amendment. Subject to the conditions as to effectiveness set forth
in Paragraph 4 of this Amendment, the amount "$25,000,000" appearing in Section
1.02(a) of the LSA is hereby deleted and replaced by the amount "$27,500,000".
3. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants as of the date hereof as follows (which representations
and warranties shall survive the execution and delivery of this Amendment):
(1) All representations and warranties made by the Borrower in
Article III of the LSA and each of the other Documents are true and correct in
all material respects as of the date hereof with the same force and effect as if
made on such date (except to the extent that any such representation or warranty
relates expressly to an earlier date).
(2) The Borrower has the requisite power to execute, deliver
and carry out the terms and provisions of this Amendment.
(3) This Amendment has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Borrower, and is
enforceable in accordance with its terms subject (i) as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights generally,
from time to time in effect, and (ii) to general principles of equity.
(4) No event has occurred and is continuing which constitutes
or would constitute a Default or an Event of Default under the LSA.
4. Effective Date. This Amendment shall become effective on the date
when the Lender shall have received (i) a counterpart of this Amendment, duly
executed and delivered on behalf of the Borrower, (ii) certified copies of
resolutions of the managers of the Borrower approving this Amendment, and (iii)
a fee in the amount of $25,000, in cash, which is due and payable to the Lender
pursuant to Section 1.02(d) of the LSA.
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5. Continued Effectiveness. Nothing herein shall be deemed to be a
waiver of any covenant, or agreement contained in, or any Default or Event of
Default under the LSA and each of the parties hereto agrees that, as amended by
this Amendment, all of the covenants and agreements and other provisions
contained in the LSA and the other Documents shall remain in full force and
effect from and after the date of this Amendment.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (OTHER THAN THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER: ATC FUNDING, LLC
By: /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: CFO, Sr. V.P. of Finance
LENDER: HFG HEALTHCO-4 LLC
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Operating Officer
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