EXHIBIT 10.54
September 16, 1997
Physician Health Corporation
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Re: Credit Agreement, dated as of December 31, 1996, among Physician
Health Corporation (the "Company"), the Lenders referred to therein,
and NationsCredit Commercial Corporation ("NationsCredit"), as Agent
(as amended from time to time to and including the date hereof, the
"Credit Agreement")
Ladies/Gentlemen:
Capitalized terms used in this letter and not otherwise defined herein
have the meanings ascribed to them in the Credit Agreement.
NationsCredit hereby certifies to the Company that NationsCredit is
the holder of the Credit Agreement described above.
NationsCredit further certifies to the Company that the total amount
necessary to pay in full all of the outstanding liabilities and indebtedness
(collectively, the "LIABILITIES") of the Company to NationsCredit under the
Credit Agreement and the other Financing Documents (other than the Warrant) is
as follows:
(i) Aggregate outstanding principal
balance of the Liabilities..... $100,000.00
(ii) Fees and Disbursements
of Xxxxxxxxxx Xxxxxxxx LLP..... $ 51,299.77
(iii) Total pay-off amount on the
Liabilities (sum of (i)-(ii)).. $151,299.77
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September 16, 1997
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Payment of the foregoing sums due to NationsCredit should be made to
NationsCredit by way of a wire transfer of immediately available funds, by no
later than 5:00 p.m. (EST) on September 19, 1997 (the "Settlement Date"),
directed as follows:
Bank Name: First National Bank of Chicago
City & State: Chicago, Illinois
ABA Routing No.: 000000000
For Credit to: NationsCredit Commercial Corporation
Account No.: 52-56933
Ref: Physician Health Corporation
Payment of the foregoing sums due to Xxxxxxxxxx Xxxxxxxx LLP should be
made to Xxxxxxxxxx Xxxxxxxx LLP by way of a wire transfer of immediately
available funds, by no later than 5:00 p.m. (EST) on the Settlement Date,
directed as follows:
Bank Name: Wachovia Bank, N.A.
City & State: Atlanta, Georgia
ABA Routing No.: 000000000
For Credit to: Xxxxxxxxxx Xxxxxxxx Operating Account
Account No: 00000000
Ref: N0051/098034
NationsCredit hereby agrees that, upon delivery by the Company to
NationsCredit on or before the Settlement Date of one or more certificates
representing 40,000 shares of the Company's Common Stock issued in the name of
NationsCredit together with the officer's certificate attached hereto as
Exhibit A, NationsCredit will return to the Company its Warrant for
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cancellation. The Company acknowledges that the return of the Warrant
constitutes payment in full for the shares of Common Stock being issued to
NationsCredit hereunder.
NationsCredit hereby further agrees with the Company and each
Subsidiary (collectively, the "Credit Parties") that, upon payment to
NationsCredit and Xxxxxxxxxx Xxxxxxxx LLP on or before the Settlement Date of
the foregoing sums in immediately available funds and delivery on or before the
Settlement Date of the 40,000 shares of Common Stock in accordance with the
preceding paragraphs, (i) the Credit Parties will not be indebted to
NationsCredit for any reason under the Credit Agreement or the other Financing
Documents with respect to any amounts owing under the Credit Agreement
(including without limitation the fees and expenses of NationsCredit's counsel
in connection with negotiating and consummating this agreement), and any and all
such indebtedness shall be deemed paid and satisfied in full, except for the
indemnities provided to NationsCredit in Section 8.05 of the Credit Agreement
which shall survive the
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Physician Health Corporation
September 16, 1997
Page 3
execution, delivery and performance hereof, (ii) the Credit Agreement, the other
Financing Documents and all of NationsCredit's security interests in, security
titles to and other liens on all real and personal property assets and fixtures
of the Credit Parties will be automatically terminated and released, except for
the indemnities provided to NationsCredit in Section 8.05 of the Credit
Agreement which shall survive the execution, delivery and performance hereof,
and (iii) NationsCredit will execute any and all Uniform Commercial Code
financing statement terminations, mortgage releases, deed of trust releases and
other such lien release documents as the Company may reasonably request in order
to evidence or otherwise give public notice of such collateral terminations and
releases (provided, however, that any and all such termination statements,
mortgage releases, trademark releases and other such documents must be prepared
and recorded at the Company's expense).
The Company hereby agrees that NationsCredit (or any affiliate of
NationsCredit then holding the Common Stock issued to NationsCredit pursuant to
this Agreement) may, at any time within thirty (30) days after the date on which
the Company shall complete an underwritten initial public offering (an "IPO") of
its Common Stock, by notice to the Company, demand redemption of the Common
Stock issued to NationsCredit pursuant to this agreement, at the price per share
to public of the Company's Common Stock as set forth in the final prospectus for
such IPO (the "Redemption Price"), whereupon the Company shall redeem such
Common Stock by payment of the Redemption Price for such shares on or before the
fifth (5th) Business Day after receipt of notice of such demand, in immediately
available funds, by wire transfer to NationsCredit (or its affiliate holding
such shares) at its account specified in the notice of redemption, and
NationsCredit (or such affiliate) shall thereupon promptly surrender the
redeemed stock to the Company for cancellation. The Company further agrees that
it shall promptly notify NationsCredit in writing of the completion of its
initial IPO.
In consideration of NationsCredit's agreements set forth above and
NationsCredit's release set forth below, each Credit Party, for itself and on
behalf of its successors, heirs, legal representatives, officers, directors,
agents, shareholders, employees and assigns and including without limitation any
trustee, receiver, custodian or conservator who may be hereafter appointed for
such person or all or any portion of such person's assets (collectively, the
"Derivative Claimants"), hereby releases and forever discharges NationsCredit
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and its officers, directors, shareholders, employees, affiliates, attorneys,
agents, successors and assigns (NationsCredit and such other persons being
hereinafter collectively referred to as the "Released Parties"), of and from any
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and all claims, defenses, counterclaims or other liabilities, whether known or
unknown, and whether in contract or in tort or arising under any statute or
otherwise, which any Credit Party, or any Derivative Claimant, may have against
NationsCredit or any of the other Released Parties and which arise out of or in
any way relate to any actions or inactions taken or omitted by NationsCredit or
any of the other Released Parties on or prior to the
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September 16, 1997
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Settlement Date in connection with the negotiation, execution, delivery,
performance, administration, operation or enforcement of any of the Financing
Documents, any of the Loans or any of the Collateral, and including without
limitation any and all such claims, defenses, counterclaims or other liabilities
which may be based on allegations of breach of contract, fraud, promissory
estoppel, libel, slander, usury, negligence, misrepresentation, breach of
fiduciary duty, bad faith, lender malpractice, undue influence, duress, economic
coercion, tortious interference with contractual relations, misuse of control,
or interference with management. Nothing contained in this paragraph, however,
shall be deemed to be an admission of any liability by NationsCredit or any of
the other Released Parties to any Credit Party, any Derivative Claimant or any
other Person or a release of NationsCredit from any of its obligations under
this Release. In furtherance and not in limitation of the first sentence of
this paragraph, each Credit Party also hereby covenants and agrees, on behalf of
itself and all of its Derivative Claimants, not to xxx or prosecute any action
against NationsCredit or any other Released Party with respect to any of the
matters contemplated within the scope of the release provided in the first
sentence of this paragraph.
In consideration of the releases granted by the Credit Parties above,
and subject to NationsCredit's and Xxxxxxxxxx Xxxxxxxx LLP's prior receipt of
the payments and other items referred to above on or before the Settlement Date
provided above, NationsCredit (for itself and on behalf of its Derivative
Claimants) hereby releases and forever discharges the Credit Parties and the
Credit Parties' respective Derivative Claimants of and from any and all claims,
defenses, counterclaims or other liabilities, whether known or unknown and
whether in contract or in tort or arising under any statute or otherwise, which
NationsCredit may have against the Credit Parties and which arise out of or in
any way relate to any actions or inactions taken or omitted by the Credit
Parties on or prior to the Settlement Date in connection with the negotiation,
execution, delivery, performance, administration, operation or enforcement of
any of the Financing Documents or any of the Loans or the Collateral. Nothing
contained in this paragraph, however, shall be deemed to be an admission of any
liability by any Credit Party to the NationsCredit or any other Person or a
release of any Credit Party from such Credit Party's obligations under this
Release. In furtherance and not in limitation of the first sentence of this
paragraph, but subject to NationsCredit's prior receipt of the aforesaid items
by the deadline set forth above, NationsCredit also hereby covenants and agrees,
on behalf of itself and all of its Derivative Claimants, not to xxx or prosecute
any action against any Credit Party with respect to any of the matters
contemplated within the scope of the release provided in the first sentence of
this paragraph. Notwithstanding anything herein to the contrary, however, this
paragraph shall not become effective unless and until the items referred to
above are paid and/or provided to NationsCredit and Xxxxxxxxxx Xxxxxxxx LLP on
or before the Settlement Date provided above.
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September 16, 1997
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To evidence your agreement with the provisions hereof, please cause
each of the Credit Parties to sign the copies of this letter in the places
provided below and return two executed originals to NationsCredit at the above
address, together with the certificate(s) for the 40,000 shares of Common Stock
and the other items set forth herein (other than the payments which should be
made by wire transfer as provided above). Once NationsCredit has confirmed
timely receipt of all items required herein, it will return the canceled Warrant
to the Company, together with all original notes and guaranties delivered to and
held by NationsCredit as a part of the Financing Documents, marked "paid", all
share certificates evidencing pledged stock and all other items of Collateral
held by NationsCredit, and UCC-3 terminations statements for each of the
financing statements filed by NationsCredit in connection with the Credit
Agreement.
This letter shall inure to the benefit of and shall be binding upon
the successors, assigns and affiliates of the parties hereto, and this letter
may not be modified or amended except by a written agreement executed by the
parties hereto. This letter is executed and delivered in, and shall be
governed, construed and enforced according to the laws of, the State of Georgia,
without regard to its conflict of laws principles. This letter may be executed
in counterparts, all of which shall constitute one and the same instrument.
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September 16, 1997
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Each Credit Party and NationsCredit acknowledge that they have fully
read and examined this letter, have consulted their respective attorneys in
connection therewith, and are entering into this letter voluntarily, with full
knowledge of the effect and consequences of the terms and conditions of this
letter.
Very truly yours,
NATIONSCREDIT COMMERCIAL
CORPORATION
By:
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Name:
----------------------------------
Title:
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ACCEPTED AND AGREED
this __ day of September, 1997:
PHYSICIAN HEALTH CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
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PHC PHYSICIAN NETWORKS, INC.
By:
--------------------------------
Title:
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PHC PALM BEACH, INC.
By:
--------------------------------
Title:
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Physician Health Corporation
September 16, 1997
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PHC CENTRAL FLORIDA, INC.
By:
--------------------------------
Title:
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PRIMARY CARE SPECIALISTS OF
CENTRAL FLORIDA, INC.
By:
--------------------------------
Title:
-----------------------------
PRIMARY CARE SPECIALISTS
OF GEORGIA, INC.
By:
--------------------------------
Title:
-----------------------------
PHC - ST. LOUIS ACQUISITION
SUBSIDIARY I, INC.
By:
--------------------------------
Title:
-----------------------------
PHC - ORLANDO ACQUISITION
SUBSIDIARY II, INC.
By:
--------------------------------
Title:
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Physician Health Corporation
September 16, 1997
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PHC - ACQUISITION SUBSIDIARY II, INC.
By:
--------------------------------
Title:
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PHC - MIDWEST, INC.
By:
--------------------------------
Title:
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METROPOLITAN PLASTIC &
RECONSTRUCTIVE SURGERY, LTD.
By:
--------------------------------
Title:
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XXXX X. XXXXX, INC.
By:
--------------------------------
Title:
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SURGICAL GROUP SOUTH, L.L.C.
By:
--------------------------------
Title:
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EYE CARE SERVICES OF MISSOURI,
INC.
By:
--------------------------------
Title:
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Physician Health Corporation
September 16, 1997
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GREATER CINCINNATI GASTROENTROLOGY
ASSOCIATES, INC.
By:
--------------------------------
Title:
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MHOA TEXAS I, INC.
By:
--------------------------------
Title:
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