EXHIBIT 10.25
FIRST AMENDMENT AGREEMENT
FIRST AMENDMENT AGREEMENT, dated as of December 30, 1997 (the "First
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Amendment"), to the Receivables Loan and Security Agreement, dated as of
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December 5, 1996 (as the same may be amended, supplemented, modified or restated
in accordance with its terms, the "RLSA"), among HCFP Funding, Inc. as servicer
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(the "Servicer"), Wisconsin Circle Funding Corporation (the "Borrower"), Holland
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Limited Securitization, Inc. (the "Lender") and ING Baring (U.S.) Capital
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Markets, Inc. (the "Agent"). Capitalized terms used herein and not otherwise
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defined herein shall have the meanings attributed thereto in the RLSA.
WHEREAS, the Borrower has informed the Lender and the Agent of its desire
to amend the RLSA in order to, among other things, increase the Maximum
Borrowing Limit thereunder from $100,000,000 to $200,000,000; and
WHEREAS, the parties hereto have agreed to amend the RLSA on the terms and
subject to the conditions herein set forth in order to effect the foregoing.
NOW, THEREFORE, 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 RLSA
1.1 The cover page to the RLSA is hereby amended by deleting the amount
"$100,000,000" appearing in the first line thereof and substituting therefor the
amount "$200,000,000".
1.2 The definition of "Liquidity/Credit Enhancement Facility" appearing in
Section 1.01 of the RLSA is hereby deleted in its entirety and the following is
substituted therefor:
"Liquidity/Credit Enhancement Facility" means the Enhancement
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Agreement, dated as of December 5, 1996, among the Issuer, the financial
institutions party thereto as lenders and ING (U.S.) Capital Corporation, as the
enhancement agent and the Liquidity Agreement, dated as
of December 30, 1997, among the Issuer, the financial institutions party
thereto as lenders and ING (U.S.) Capital Corporation, as the liquidity
agent.
1.3 The definition of Minimum Overcollateralization Amount appearing
in Section 1.01 of the RLSA is hereby amended by deleting the decimal ".15"
appearing in the third line of such definition and substituting therefor the
decimal ".20".
1.4 The definition of "Insurer Limit" contained within the definition
of "Pledged Receivables Balance" appearing in Section 1.01 of the RLSA is hereby
amended by deleting such definition of Insurer Limit in its entirety and
substituting therefor the following:
"Insurer Limit" means the dollar amount by which the aggregate
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Adjusted Net Realizable Value of the Pledged Receivables related
to a single Insurer (other than a Blue Cross or Blue Shield
entity) exceeds the product of (i) without duplication, either
(a) the concentration limit percentage as described in Table A
below relating to the credit rating of such Insurer (published
by A.M. Best & Company) or (b) the concentration limit percentage
as described in Table B below relating to the credit rating of
such Insurer (published by S&P) and (ii) the sum of the Adjusted
Net Realizable Values of all Pledged Receivables which are
Eligible Receivables.
Table A (A.M. Best & Company):
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Relating Category Percentage
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A+ or higher 2.5%
less than A+ but greater than B 2.0%
B and below, unrated or uncategorized 1.0%
Table B (S&P):
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Rating Category Percentage
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A+ or higher 5.0%
1.5 The definition of "Blue Cross/Blue Shield Payor Limit"
contained within the definition of "Pledged Receivables Balance" appearing in
Section 1.01 of the RLSA is hereby amended by deleting the decimal "0.2"
appearing in the fourth line of the definition of Blue Cross/Blue Shield Payor
Limit and substituting therefor the decimal "0.075".
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1.6 The definition of "Modified Maximum Borrowing Limit" contained
within the definition of "Pledged Receivables Balance" appearing in Section 1.01
of the RLSA is hereby amended by deleting such definition of Modified Maximum
Borrowing Limit in its entirety and substituting therefor the following:
"Modified Maximum Borrowing Limit" means the dollar amount by which
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the sum of all Originator Commitment Amounts exceeds the sum of (x) HP
Equity plus (y) the Borrowing Limit.
1.7 The definition of "Required Overcollateralization Percentage"
appearing in Section 1.01 of the RLSA is hereby deleted in its entirety and the
following is substituted therefor:
"Required Overcollateralization Percentage" means 25%;
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provided, that at any time that (i) the face amount of outstanding
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commercial paper notes of the Lender issued to fund Loans hereunder
exceeds $100,000,000 and (ii) the combined STL and SDWW assets of
HealthCare Financial Partners, Inc. (the "Parent") on a consolidated
basis at any time exceed seventy five percent (75%) of the aggregate
amount of loans and/or advances by the Parent, or any subsidiary
thereof, which loans and/or advances are secured by Receivables
pledged pursuant to any financing agreement, then the Required
Overcollateralization Percentage shall be increased to 29%. For
purposes of this paragraph, "STL" shall mean secured term loan assets
principally secured by short term bridge first mortgages and "SDWW"
shall mean senior debt assets secured by subordinate liens in certain
assets of the Parent's borrowers.
1.8 Section 2.03 of the RLSA is hereby amended by deleting the amount
"$100,000,000" appearing in the fifth line thereof and substituting therefor the
amount "$200,000,000".
1.9 Section 7.01(n) of the RLSA is hereby deleted in its entirety
and the following is substituted therefor:
(n) (x) Funding has HP Equity of less than $50,000,000 at
any time and such HP Equity deficiency remains unremedied for more
than two Business Days after written notice thereof (containing a
description of steps to be taken to remedy such failure) shall have
been given by the Borrower to
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the Agent or (y) the Borrower shall have failed to provided the Agent
written notice of such deficiency on the Business Day following the
occurrence of such deficiency; or
SECTION 2. CONDITIONS TO EFFECTIVENESS
This First Amendment shall be effective upon the execution and delivery of
counterparts hereof by the parties signatory hereto and the fulfillment of the
following terms and conditions:
2.1 The Lender and the Agent shall have received and determined to be in
form and substance satisfactory to it (i) a certificate of the Borrower executed
by its Secretary dated as of a recent date and certifying (x) that attached
thereto is a true and complete copy of a resolution adopted by the Borrower
authorizing the execution, delivery and performance of this First Amendment and
certifying that such resolution has not been modified, rescinded or amended and
is in full force and effect and (y) as to the incumbency and specimen signature
of its Responsible Officer executing this First Amendment, and (ii) a
certificate of a Responsible Officer of each Loan Party as to the incumbency and
signature of the Secretary executing the foregoing certificate.
2.2 All representations and warranties contained in the RLSA or made in
writing to the Lender or the Agent in connection herewith or with the
transactions contemplated hereby shall be true and correct in all material
respects.
2.3 No unwaived Event of Termination or Event of Default nor any event
that but for notice or lapse of time or both would constitute an Event of
Termination or an Event of Default shall have occurred and be continuing.
2.4 The Agent shall have received a fully executed Fee Letter,
substantially in the form of Exhibit A hereto.
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2.5 The Agent shall have received the favorable written opinion of
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A., counsel for the Borrower,
substantially in the form of Exhibit B hereto.
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SECTION 3. MISCELLANEOUS
3.1 Each of the Borrower and the Servicer reaffirms and restates that the
representations and warranties set forth in Article IV of the RLSA and any other
representations and warranties made by the Borrower and/or the Servicer in the
RLSA shall be true and correct on the date hereof with the same force and effect
as if made on such date, except to the extent that such representations and
warranties speak specifically to an earlier date in which case they shall have
been true and correct on such date. In addition, each of
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the Borrower and the Servicer represents and warrants (which representations and
warranties shall survive the execution and delivery hereof) that (a) no unwaived
Event of Termination or Event of Default nor any event that but for notice or
lapse of time or both would constitute an Event of Termination or an Event of
Default shall have occurred and be continuing as of the date hereof nor would
any unwaived Event of Termination or Event of Default nor any event that but
for notice or lapse of time or both would constitute an Event of Termination or
an Event of Default shall have occurred and be continuing due to this First
Amendment becoming effective, (b) such Person has the corporate power and
authority to execute and deliver this First Amendment and has taken or caused to
be taken all necessary corporate actions to authorize the execution and delivery
of this First Amendment, and (c) no consent of any other person (including,
without limitation, shareholders or creditors of any such Person), and no action
of, or filing with any governmental or public body or authority is required to
authorize, or is otherwise required in connection with the execution and
performance of this First Amendment other than such that have been obtained.
3.2 Except as herein expressly amended, the RLSA is hereby ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with its terms.
3.3 The Borrower hereby agrees to pay all costs and expenses incurred by
the Lender in connection with this First Amendment including, without
limitation, the fees and expenses of Xxxx, Scholer, Fierman, Xxxx & Handler,
LLP, counsel to the Lender.
3.4 All references in the RLSA to "this Agreement" and "herein" and all
references to the RLSA in the documents executed in connection with the RLSA
shall mean the RLSA as amended hereby and as it may in the future be amended,
restated, supplemented or modified from time to time.
3.5 This First Amendment 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.
Delivery of an executed counterpart of a signature page to this First Amendment
by facsimile shall be effective as delivery of a manually executed counterpart
of this First Amendment.
3.6 THIS FIRST AMENDMENT 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.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first above written.
THE BORROWER: WISCONSIN CIRCLE FUNDING
CORPORATION
/s/
By: ________________________________
Title: Executive Vice President
THE SERVICER: HCFP FUNDING, INC.
/s/
By: ________________________________
Title: Executive Vice President
THE AGENT: ING BARING (U.S.) CAPITAL MARKETS,
INC.
/s/
By: ________________________________
Title:
THE LENDER: HOLLAND LIMITED SECURITIZATION, INC.
By: ING Baring (U.S.) Capital Markets,
Inc., as attorney-in-fact
/s/
By: ________________________________
Title:
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