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EXHIBIT 10.30
AMENDMENT NO. 4
Dated as of February 2, 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, and
Amendment No. 3 and Waiver dated as of December 22, 2000, the "CREDIT
AGREEMENT") among the undersigned and you. Capitalized terms not otherwise
defined in this Amendment No. 4 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 the parties hereto have agreed to so amend the Credit Agreement,
effective as of the effective date of this Amendment No. 4. 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. 4, hereby amended as follows:
(1) Section 2.05(c) is hereby amended by deleting the number "ten"
in the third line thereof and substituting therefor the number "four" and by
deleting the second sentence thereof and substituting therefor the following
sentence: "All mandatory prepayments shall be applied first to repay the
Supplemental Revolving Loan Advances and second to cash collateralize the Letter
of Credit Liabilities."
(2) Section 2.09(b) 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 (i) 50% of all Net Cash Proceeds
of such Asset Sale subsequent to February 1, 2001 shall be retained by the
Borrower until the aggregate amount of all such Net Cash Proceeds of such
Asset Sales retained by the Borrower equals $10,000,000, and (ii) all other
Net Cash Proceeds of all such Asset Sales (including the 50% of Net Cash
Proceeds from Asset Sales not retained by the Borrower and regardless of
the date thereof) 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 asset shall be delivered to
the Agent no later than 15 Business Days after the end of each month, and
in each case, such Net Cash Proceeds shall be applied in accordance with
Section 2.09(f). The Agent shall not be required to release any of its
liens on the
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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) Section 6.02 is amended by deleting subclauses (f), (g), (r)
and (u) thereof and replacing them with the phrase "Intentionally Omitted."
(4) Section 6.04 is amended by deleting subclauses (o), (p), (q)
and (r) thereof and replacing them with the phrase "Intentionally Omitted."
(5) Annex E to the Credit Agreement is hereby replaced with Exhibit
A hereto.
(b) Upon the effective date of this Amendment No. 4 (i) all outstanding
Swing Line Advances shall be deemed outstanding Supplemental Revolving Loan
Advances and on such date the Swing Line Bank shall sell and assign to each
other Bank, and such other Bank shall purchase from the Swing Line Bank, such
other Bank's Commitment Percentage of such Swing Line Borrowings, (ii) all
amounts in the Cash Collateral Account shall be applied to repay the outstanding
principal amount of the Supplemental Revolving Loan Borrowings (after giving
effect to the purchase and sale provided in subclause (i) above) together with
accrued interest on the amount prepaid, and the obligations of each Bank to make
Supplemental Revolving Loan Advances, the obligation of the Swing Line Bank to
make Swing Line Advances and the obligation of the Issuing Bank to issue
Supplemental Letters of Credit shall terminate and (iii) the Hedge and Lease
Obligation Guaranty, dated as of January 28, 2000, made by various Subsidiaries
of the Borrower in favor of the Hedge Banks and the Lease Agent (in each case as
defined therein) shall terminate, and each Bank which was a beneficiary of such
Guaranty hereby consents to such termination.
This Amendment No. 4 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 February 9, 2001, counterparts of this Amendment
No. 4 executed by the undersigned and the Majority Banks or, as to any of the
Banks, advice satisfactory to the Agent that such Bank has executed this
Amendment No. 4, 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, and on such effective date and immediately
prior to giving effect to the provisions of the immediately preceding paragraph
(b) the Banks shall make a Supplemental Revolving Loan Borrowing to the Borrower
in an amount equal to the then maximum aggregate Unused Supplemental Revolving
Loan Commitments less the aggregate amount of outstanding Swing Line Advances
and the Supplemental Letter of Credit Liability. This Amendment No. 4 is subject
to the provisions of Section 9.01 of the Credit Agreement.
On and after the effectiveness of this Amendment No. 4, 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. 4.
The Credit Agreement, as specifically amended by this Amendment No. 4,
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. 4 shall not, except as expressly provided herein,
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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 Xxxxx XxXxxxxxx at
Citibank, N.A. (Telecopier No. (000) 000-0000) and returning at least three
counterparts of this Amendment No. 4 to Xxxxxxxx Xxxxxxx at Shearman & Sterling,
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (Telecopier No. (000) 000-0000).
This Amendment No. 4 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. 4 by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment No. 4. This
Amendment No. 4 shall be governed by, and construed in accordance with, the laws
of the State of New York.
Very truly yours,
PHYCOR, INC.
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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/ Xxxxx XxXxxxxxx
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Title: Vice President
CITICORP USA, INC.
as Agent, as Swing Line Bank and as Bank
By: /s/ Xxxxx XxXxxxxxx
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Title: Vice President
AMSOUTH BANK, successor in interest by merger to,
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
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Title: Xxxxxx X. Xxxx, Senior Vice President
BANK OF AMERICA, N.A.
By: /s/
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Title: Managing Director
BANKERS TRUST COMPANY
By:
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Title:
THE BANK OF NOVA SCOTIA, Atlanta Agency
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Managing Director
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/ Xxxxx X. Xxxx
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Title: Asst. Vice President
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx
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Title: Executive Director
By: /s/
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Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ C. Xxxxxxx Xxxxxxx
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Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Title: Director
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TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President
WACHOVIA BANK
By: /s/ Xxxxxxxxx Xxxxxxxxxxx
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Title: Vice President
CERBERUS PARTNERS, L.P.
By:
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Title:
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