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EXHIBIT 10.32
AMENDMENT NO. 6 AND WAIVER
Dated as of March 30, 2001
To the banks, financial institutions and
other institutional lenders
(collectively, the "BANKS") party to the
Credit Agreement referred to below, to
Citicorp USA, Inc. as administrative
agent for the Banks and as the Swing
Line Bank, and to Bank of America, N.A.,
as documentation agent
Ladies and Gentlemen:
We refer to the Fourth Amended and Restated Revolving Credit Agreement
dated as of August 25, 2000 (as amended by Amendment No. 1 dated as of September
29, 2000, Amendment No. 2 and Waiver dated as of November 30, 2000, Amendment
No. 3 and Waiver dated as of December 22, 2000, Amendment No. 4 dated as of
February 2, 2001, and Amendment No. 5 dated as of February 12, 2001, the "CREDIT
AGREEMENT") among the undersigned and you. Capitalized terms not otherwise
defined in this Amendment No. 6 and Waiver have the same meanings as specified
in the Credit Agreement.
The Borrower has requested that, on the terms and conditions set forth
herein, the Majority Banks agree to amend the Credit Agreement as provided
herein, and to waive the requirements of certain covenants as provided herein,
and the parties hereto have agreed to so amend the Credit Agreement and to waive
such covenants, effective as of the effective date of this Amendment No. 6 and
Waiver. It is hereby agreed by you and us as follows:
(a) The Credit Agreement is, effective as of the effective date of this
Amendment No. 6 and Waiver, hereby amended as follows:
(1) The definition of "Termination Date" in Section 1.01 of the Credit
Agreement in amended in its entirety as follows:
"`Termination Date' means December 31, 2001, or, if earlier, the
date of termination in whole of the Commitments pursuant to Section 2.03 or
7.01."
(2) Section 2.09(b) of the Credit Agreement is hereby amended in its
entirety as follows:
"(b) Asset Sales Mandatory Prepayments. Upon any Asset Sale by the
Borrower or any Subsidiary of the Borrower 100% of all Net Cash
Proceeds of such Asset Sale subsequent to March 15, 2001 shall be
delivered directly to the Agent by the purchaser of the Assets upon
closing of the respective Asset Sale, and any deferred cash proceeds of
any such Asset Sale shall be delivered directly to the Agent (at which
time the same shall become Net Cash Proceeds); provided however that
Net Cash Proceeds from retained assets shall be delivered to the Agent
no later than 15 Business Days after the end of each month, and such
Net Cash Proceeds shall be applied in accordance with Section 2.09(f);
provided, further, however, that the Borrower and its Subsidiaries
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immediately may make payments in connection with the Benz Litigation
not to exceed $700,000 in cash as described in item (b)(1) of Amendment
No. 6 dated as of March 30, 2001; provided, further, however, that,
after all Letters of Credit are cash collateralized as provided in the
Credit Agreement and all of the Existing Debt Obligations of the
Borrower and its Subsidiaries under the Credit Agreement are paid in
full, the Borrower and its Subsidiaries may make additional settlement
payments in the Benz Litigation not to exceed $2,000,000 as described
in item (b)(1) of Amendment No. 6, dated as of March 30, 2001. After
all Letters of Credit are cash collateralized as provided in the Credit
Agreement and all Existing Debt Obligations under the Credit Agreement
are paid in full, the Borrower may retain all Net Cash Proceeds of
Asset Sales; provided however, that the Borrower continues to pay all
other continuing obligations arising under the Credit Agreement when
due and owing. The Agent shall not be required to release any of its
liens on the Assets sold as provided for in Section 8.08 herein until
it receives the Net Cash Proceeds of the respective Asset Sale as
provided for in this Section 2.09(b) or unless other provisions
satisfactory to the Agent are contained in the respective escrow
instructions for the payment of Net Cash Proceeds."
(3) Annex E to the Credit Agreement is hereby replaced with Exhibit A
hereto.
(b) The Majority Banks hereby waive, effective as of the effective date
of this Amendment No. 6 and Waiver:
(1) the Borrower's non-compliance with Section 6.02(q) with
respect to the settlement of the Benz Litigation; provided
that the aggregate consideration to be paid by the Borrower
and its Subsidiaries in respect of such settlement does not
exceed the sum of $700,000 in cash and, after all Letters of
Credit are cash collateralized as provided in the Credit
Agreement and all Obligations thereunder paid in full,
$2,000,000 from the proceeds of future Asset Sales; and
(2) the Event of Default resulting under Section 7.01(d) of the
Credit Agreement in connection with the Borrower's failure to
pay by March 15, 2001 the $4,421,250 interest payment due
thereby on the 4.5% subordinated notes of the Borrower issued
under the Indenture dated as of February 15, 1996.
This Amendment No. 6 and Waiver shall become effective as of the date
first above written when, and only when, (i) the Agent shall have received by
5:00 pm (New York City time) on or before April 6, 2001, counterparts of this
Amendment No. 6 and Waiver executed by the undersigned and the Majority Banks
or, as to any of such Banks, advice satisfactory to the Agent that such Bank has
executed this Amendment No. 6 and Waiver, and the consent attached hereto
executed by each Guarantor and (ii) the Borrower shall have paid by such date
all amounts due and payable under Section 9.04 of the Credit Agreement. This
Amendment No. 6 and Waiver is subject to the provisions of Section 9.01 of the
Credit Agreement.
On and after the effectiveness of this Amendment No. 6 and Waiver, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Amendment No. 6 and Waiver.
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The Credit Agreement, as specifically amended by this Amendment No. 6
and Waiver, is and shall continue to be in full force and effect and is hereby
in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment No. 6 and Waiver shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Bank
or the Agent under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
If you agree to the terms and provisions hereof, please evidence such
agreement by executing and telecopying one signature page to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ at
Citibank, N.A. (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇) and returning at least three
counterparts of this Amendment No. 6 and Waiver to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at Shearman
& Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Telecopier No. (415)
616-1199).
This Amendment No. 6 and Waiver may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment No. 6 and Waiver by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment No. 6 and Waiver. This Amendment No. 6 and Waiver shall be governed
by, and construed in accordance with, the laws of the State of New York.
Very truly yours,
PHYCOR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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Agreed as of the date first above written:
CITIBANK, N.A.,
as Issuing Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
CITICORP USA, INC.
as Agent, as Swing Line Bank and as Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
AMSOUTH BANK, successor in interest by merger to,
FIRST AMERICAN NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President
BANK OF AMERICA, N.A.
By: /s/
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Title: Managing Director
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Managing Director
THE BANK OF NOVA SCOTIA, Atlanta Agency
By: /s/ ▇.▇. ▇▇▇▇▇
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Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
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Title: Vice President
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BANK ONE, NA (f/k/a THE FIRST NATIONAL BANK OF CHICAGO)
By: /s/
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Title: First Vice President
AMROC INVESTMENTS, LLC
By:
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Title:
PATRIARCH PARTNERS, LLC
By:
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Title:
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: First Vice President
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:
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Title:
By:
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Title:
THE SUMITOMO BANK, LIMITED
By: /s/
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Title: Senior Vice President
SUNTRUST BANK
By:
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Title:
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TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
WACHOVIA BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
CERBERUS PARTNERS, L.P.
By:
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Title:
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