Third Amendment dated October 15, 2004, to Credit and Guaranty Agreement...



 Exhibit 10.36 
  
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  
 AMENDMENT NO. 3, dated as of October 15, 2004 (this “Amendment”), to the Credit and Guaranty Agreement,
dated as of October 17, 2002, among WellChoice, Inc., as Borrower and guarantor thereunder, 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 (as amended, supplemented or otherwise modified, the “Credit and Guaranty Agreement”). 
  
 RECITALS 
  
 A. Terms defined in the Credit and Guaranty Agreement are used herein with the same meanings. 
  
 B. The Borrower has requested that the Administrative Agent agree to amend
the Credit and Guaranty Agreement as described below, and the Administrative Agent is willing to so agree subject to the terms and conditions contained in this Amendment. 
  
 Accordingly, in consideration of the Recitals and the covenants, conditions and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Borrower and the Administrative Agent hereby agree as follows: 
  
 1. The defined term “Maturity Date” contained in Section 1.1 of the Credit and Guaranty Agreement is hereby
amended by replacing the date “October 15, 2004” with the date “October 14, 2005”. 
  
 2. Section 3.3(b) of the Credit and Guaranty Agreement is hereby amended by replacing the percentage “0.150%” with the percentage
“0.125%”. 
  
 3. The table in the definition of
“Applicable Margin” contained in Section 1.1 of the Credit Agreement is amended in its entirety to read as follows: 
  

							
	 Applicable Financial Strength Rating

	  	ABR Margin

	 	 	Eurodollar
and LC Fee
Margin

	 
	 3 BBB+
	  	0.000	%	 	0.875	%
	 BBB
	  	0.000	%	 	1.000	%
	 < BBB or no rating
	  	0.7500	%	 	2.000	%

  
 4. Paragraphs 1
through 3 above shall not be effective until such time, if any, as each of the following conditions shall have been satisfied: 
  
 (a) the Administrative Agent (or its counsel) shall have received from each of the Loan Parties and the 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;

  
 (b) the Administrative Agent shall have
received a certificate signed by the Secretary or an Assistant Secretary of the Borrower, attaching a true and complete copy of the resolutions (or excerpts thereof) of its Board of Directors and of all documents, if any, evidencing other corporate
action (in form and substance satisfactory to the Administrative Agent) taken by it to authorize the transactions contemplated hereby; and 
  
 (c) the Administrative Agent shall have received all fees and other amounts, if any, payable by the Loan Parties under the Loan Documents
or otherwise in connection with this Amendment that are due on or before the date hereof. 
  
 5. Each of the Loan Parties hereby (i) reaffirms and admits, on and as of the date hereof and, in addition, immediately after giving effect to paragraphs 1 through 3 above, the validity and enforceability of each Loan
Document to which it is party and its obligations thereunder, and agrees and admits that, on and as of the date hereof and, in addition, immediately after giving effect to paragraphs 1 through 3 above, it has and shall have no defense to or offset
against any such obligation and (ii) represents and warrants that, on and as of the date hereof and, in addition, immediately after giving effect to paragraphs 1 through 3 above, (a) it is and shall be in compliance with all of the terms, covenants
and conditions of each Loan Document to which it is a party, (b) there exists and shall exist no Default or Event of Default and (c) the representations and warranties made by it in each Loan Document are and shall be true and correct. 

 
 6. 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 but one contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart of this Amendment. 
  
 7. Each Loan Document shall in all other respects remain in full force and effect, and no amendment, supplement, consent, waiver or other modification
herein in respect of any term or condition of any Loan Document shall be deemed to be an amendment, supplement, consent, waiver or other modification in respect of any other term or condition of any Loan Document. 
  
 8. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. 
  
 [Signature pages follow]

  

 2 








 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  
 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. 
  

			
	 WELLCHOICE, INC.

		
	By:	 	 /s/ John W. Remshard

	 Name:
	 	 John W. Remshard

	 Title:
	 	 SVP & Chief Financial Officer

	
	 EMPIRE HEALTHCHOICE ASSURANCE, INC.

		
	By:	 	 /s/ John W. Remshard

	 Name:
	 	 John W. Remshard

	 Title:
	 	 SVP & Chief Financial Officer

	
	 EMPIRE HEALTHCHOICE HMO, INC.

		
	By:	 	 /s/ John W. Remshard

	 Name:
	 	 John W. Remshard

	 Title:
	 	 SVP & Chief Financial Officer



  









 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  

			
	 THE BANK OF NEW YORK,
 individually, as Issuing Bank and as
 Administrative Agent

		
	By:	 	 /s/ Patrick Vatel

	 Name:
	 	 Patrick Vatel

	 Title:
	 	 Vice President



  









 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  

			
	CONSENTED AND AGREED TO:
	
	HSBC BANK USA
		
	By:	 	 /s/ Steven Broad

	 Name:
	 	 Steven Broad

	 Title:
	 	 First Vice President


  









 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  

			
	CONSENTED AND AGREED TO:
	
	WACHOVIA BANK, NATIONAL ASSOCIATION
		
	By:	 	 /s/ Kimberly Shaffer

	 Name:
	 	 Kimberly Shaffer

	 Title:
	 	 Director


  









 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  

			
	CONSENTED AND AGREED TO:
	
	 CREDIT SUISSE FIRST BOSTON,
 acting through
its Cayman Islands Branch

		
	By:	 	 /s/ Paul Colón

	 Name:
	 	 Paul Colón

	 Title:
	 	 Director

		
	By:	 	 /s/ Karim Blasetti

	 Name:
	 	 Karim Blasetti

	 Title:
	 	 Associate


  









 WELLCHOICE, INC. 
 AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT 
  

			
	CONSENTED AND AGREED TO:
	
	JPMORGAN CHASE BANK
		
	By:	 	 /s/ Heather Lindstrom

	 Name:
	 	 Heather Lindstrom

	 Title:
	 	 Vice President