EXHIBIT 10.2
AMENDMENT AGREEMENT XX. 0
XXXXXXXXX XXXXXXXXX XX. 0 dated as of March 31, 2000 (this
"AGREEMENT"), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 15,
1999 (as heretofore amended and as may be further amended, modified or
supplemented from time to time the "CREDIT AGREEMENT"), among GENTLE DENTAL
SERVICE CORPORATION, a Washington corporation ("DENTAL SERVICE"), GENTLE DENTAL
MANAGEMENT, INC., a Delaware corporation ("DENTAL MANAGEMENT") and DENTAL
CARE ALLIANCE, INC., a Delaware corporation ("DCA"; DCA, Dental Service and
Dental Management, each a "BORROWER" and collectively, the "BORROWERS"), the
Guarantors named therein, the financial institutions from time to time party
thereto (collectively, the "LENDERS"), UNION BANK OF CALIFORNIA, N.A., as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT") and THE CHASE MANHATTAN BANK ("CHASE"), as syndication agent for the
Lenders (in such capacity, the "SYNDICATION AGENT").
WHEREAS, the Borrowers, the Guarantors and the Lenders desire to amend
certain provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, the Borrowers, the Guarantors, the Lenders, the
Administrative Agent and the Syndication Agent hereby agree as follows:
SECTION 1 CAPITALIZED TERMS. Capitalized terms used herein and not defined
shall have the respective meanings assigned to such terms in the Credit
Agreement.
SECTION 2 AMENDMENTS TO THE CREDIT AGREEMENT. Upon the fulfillment of the
conditions set forth in Section 4 hereof the Credit Agreement is hereby amended
as follows:
2.1 Section 1.01 of the Credit Agreement is hereby amended by adding
the following definitions in the appropriate alphabetical order:
"AMENDMENT DATE" shall mean April 3, 2000.
"2000 CREDIT AGREEMENT" shall mean the Credit Agreement dated as
of March 31, 2000 among the Borrowers, the guarantors named therein,
Holdings, the Administrative Agent and the Syndication Agent, as
thereafter amended from time to time in accordance with its terms but
not in a manner which in the opinion of the
Required Lenders would be materially adverse to the Lenders under
this Agreement.
"2000 OBLIGATIONS" shall mean the `Obligations' as defined in the
2000 Credit Agreement.
2.2 Section 1.01 of the Credit Agreement is hereby amended by deleting
the defined term "Commitment Fee Percentage" in its entirety.
2.3 The definition of "EBITDA" contained in Section 1.01 of the Credit
Agreement is hereby amended by (i) deleting the amount "$7,000,000" as it
appears in the fourth proviso thereof and substituting the amount
"$8,816,000" therefor and (ii) deleting the "." appearing at the end
thereof and substituting the following therefor:
"; PROVIDED, FURTHER, that in determining EBITDA for Holdings and
its Consolidated subsidiaries, merger and restructuring costs
incurred in the 2000 Fiscal Year in connection with the DCA
Merger and termination of the Xxxxxxx Xxxxx transaction shall not
be included in such determination; PROVIDED, FURTHER, that in no
event shall such amount exceed $3,000,000 in the aggregate (of
which no more than $1,000,000 shall relate to the termination of
the Xxxxxxx Xxxxx transaction)."
2.4 The definition of "Final Maturity Date" contained in Section 1.01
of the Credit Agreement is hereby amended by deleting the date
"September 30, 2005" appearing therein and substituting the date
"March 31, 2005" therefor.
2.5 Clause (i)(x) of the definition of "Fixed Charge Coverage Ratio"
contained in Section 1.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(i) the sum of (x) Funds Flow from Operations of such person for
such period PLUS the average unused (treating Letter of Credit
usage as usage) availability under the Total Revolving Credit
Commitment and the `Total Revolving Credit Commitment' under the
2000 Credit Agreement during such period LESS"
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2.6 The definition of "Funds Flow from Operations" contained in Section
1.01 of the Credit Agreement is hereby amended by deleting the word
"property" appearing in clause (vii) thereof and substituting the word
"properly" therefor.
2.7 The definition of "Holdings Guarantee" contained in Section 1.01 of
the Credit Agreement is hereby amended by adding the phrase "as amended on
the Amendment Date and" immediately following the date "March 12, 1999,"
appearing therein.
2.8 The definition of "Interest Margin" contained in Section 1.01 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"INTEREST MARGIN" shall mean, with respect to any Loan, the
amount as set forth below as corresponds to the Interest Leverage
Ratio set forth below, determined on the Amendment Date and
adjusted thereafter, ten (10) Business Days after the delivery of
the financial statements to the Administrative Agent required
pursuant to Section 6.05(a) or, with respect to the first three
(3) fiscal quarters of each Fiscal Year, Section 6.05(b) hereof,
as applicable, together with the corresponding compliance
certificates required pursuant to Section 6.05(e) hereof and
together with a pricing certificate in the form of EXHIBIT N
annexed hereto, commencing with the financial statements and
certificates for the period ending March 31, 2000 or if the
Borrowers shall fail to timely deliver such statements and
certificates for any such period or during the continuance of an
Event of Default, then at the highest Interest Margin provided
for herein:
Eurodollar Loan Alternate Base
Interest Leverage Ratio Interest Margin Loan Interest Margin
----------------------- --------------- --------------------
Equal to or greater than 3.75:1.00 3.50% 1.75%
Equal to or greater than 3.00:1.00 but less than 3.75:1.00 3.25% 1.50%
Less than 3.00:1.00 3.00% 1.25%
On the Amendment Date (i) the Eurodollar Loan Interest Margin
shall be 3.25% and (ii) the Alternate Base Loan Interest Margin
shall be
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1.50%; each shall thereafter be adjusted in accordance with the
provisions hereof."
2.9 The definition of "Net Worth" contained in Section 1.01 of the
Credit Agreement is hereby amended by (i) deleting the amount "$3,319,000"
appearing in the second proviso thereof and substituting the amount
"$5,135,000" therefor and (ii) deleting the "." appearing at the end
thereof and substituting the following therefor:
"; PROVIDED, FURTHER, that in determining Net Worth for Holdings
and its subsidiaries (on a Consolidated basis), merger and
restructuring costs incurred in the 2000 Fiscal Year in
connection with the DCA Merger and the termination of the Xxxxxxx
Xxxxx transaction shall not be included in such determination;
PROVIDED, FURTHER, that in no event shall such amount exceed
$3,000,000 in the aggregate (of which no more than $1,000,000
shall relate to the termination of the Xxxxxxx Xxxxx
transaction)."
2.10 The definition of "Permitted Acquisition" contained in Section
1.01 of the Credit Agreement is hereby amended by (i) adding the phrase
"and the `Total Revolving Credit Commitment' under the 2000 Credit
Agreement" immediately following the term "Total Revolving Credit
Commitment" appearing in clause (vi) thereof and (ii) adding a new
paragraph at the end thereof to read as follows:
"Subject to the provisions of Sections 2.03 and 4.14 of this
Agreement, the Borrowers shall not use funds other than proceeds
of borrowings under the Total Revolving Credit Commitment or
under the `Total Revolving Credit Commitment' under the 2000
Credit Agreement to make any proposed Permitted Acquisition."
2.11 The definition of "Permitted De Novo Capital Expenditures"
contained in Section 1.01 of the Credit Agreement is hereby amended by (i)
adding the phrase "and the `Total Revolving Credit Commitment' under the
2000 Credit Agreement" immediately following the term "Total Revolving
Credit Commitment" appearing in clause (iii) thereof and (ii) adding a
new paragraph at the end thereof to read as follows:
"Subject to the provisions of Sections 2.03 and 4.14 of this
Agreement, the Borrowers shall not
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use funds other than proceeds of borrowings under the Total
Revolving Credit Commitment or under the `Total Revolving Credit
Commitment' under the 2000 Credit Agreement to make any proposed
Permitted De Novo Capital Expenditures."
2.12 The definition of "Pledge Agreement" contained in Section 1.01 of
the Credit Agreement is hereby amended by deleting the "." appearing at
the end thereof and substituting the following therefor:
", including, without limitation, the amendment thereof on the
Amendment Date."
2.13 The definition of "Security Agreement" contained in Section 1.01
of the Credit Agreement is hereby amended by deleting the "." appearing at
the end thereof and substituting the following therefor:
", including, without limitation, the amendment thereof on the
Amendment Date."
2.14 The definition of "Security Agreement-Patents and Trademarks"
contained in Section 1.01 of the Credit Agreement is hereby amended by
deleting the "." appearing at the end thereof and substituting the
following therefor:
", including, without limitation, the amendment thereof on the
Amendment Date."
2.15 Section 2.02(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(a) The aggregate amount of Revolving Credit Loans made by the
Lenders hereunder and of `Revolving Credit Loans' under the 2000
Credit Agreement on any date shall be in integral multiples of
$100,000 (except that the foregoing limitation shall not be
applicable to the extent that the proceeds of such Loans are
requested to be disbursed to the Borrowers' controlled
disbursement account maintained with the Administrative Agent);
PROVIDED, HOWEVER, that the aggregate amount of Eurodollar Loans
made hereunder and of `Eurodollar Loans' under the 2000 Credit
Agreement shall be in a
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minimum aggregate principal amount of $4,000,000."
2.16 Section 2.02(c) of the Credit Agreement is hereby amended by
deleting the number "five (5)" appearing in the third sentence thereof and
substituting the number "three (3)" therefor.
2.17 Section 2.02(e)(i) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(i) each conversion or continuation shall be made PRO RATA among
the Lenders in accordance with the respective principal amounts
of the Loans comprising the conversion or continuation, and in
the case of a conversion or continuation of fewer than all the
Loans, the aggregate principal amount of Loans converted or
continued hereunder and of "Loans" converted or continued under
the 2000 Credit Agreement shall not be less than (x) $100,000 in
the case of Alternate Base Loans (except that the foregoing
limitation shall not be applicable to the extent that the
proceeds of such Loans are requested to the disbursed to the
Borrowers' controlled disbursement account maintained with the
Administrative Agent) or (y) $4,000,000 in the case of Eurodollar
Loans;"
2.18 Section 2.03 of the Credit Agreement is hereby amended by (i)
restating the second sentence thereof in its entirety to read as follows:
"Such notice shall be in the form of EXHIBIT 0 annexed hereto and
which shall specify (w) whether the Loans then being requested
are to be Alternate Base Loans or Eurodollar Loans, (x) the date
of such borrowing (which shall be a Business Day) and amount
thereof, (y) if such Loans are to be Eurodollar Loans, the
Interest Period with respect thereto and (z) that (A) the
Borrowers have concurrently given notice under the 2000 Credit
Agreement of a borrowing which is pro rata (based on the
aggregate of the Total Revolving Credit Commitment under this
Agreement and the 'Total Revolving Credit Commitment' under the
2000 Credit Agreement)
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and (B) the allocation of such borrowing between this Agreement
and the 2000 Agreement."
and (ii) deleting the "." appearing at the end of the last sentence
thereof and substituting the following therefor:
"; PROVIDED, HOWEVER, that no requested borrowing may be for a
Permitted Acquisition or a Permitted De Novo Capital Expenditure
unless and until the aggregate of the Total Revolving Credit
Commitment under this Agreement and the 'Total Revolving Credit
Commitment' under the 2000 Credit Agreement shall have been
increased to $120,000,000; PROVIDED, FURTHER, that no such
requested borrowing for a Permitted Acquisition or a Permitted De
Novo Capital Expenditure shall, when taken together with all
other borrowings for Permitted Acquisitions and Permitted De Novo
Capital Expenditures made hereunder and under the 2000 Credit
Agreement since the Amendment Date, exceed $5,000,000."
2.19 The first paragraph of Section 2.04(c) of the Credit Agreement is
hereby amended by (i) deleting the number "sixteen (16)" appearing in the first
sentence thereof and substituting the number "fourteen (14)" therefor and (ii)
deleting the words "four (4) years" appearing in the second sentence thereof and
substituting the words "three (3) years and six (6) months" therefor.
2.20 Section 2.06 of the Credit Agreement is hereby amended by
deleting the words "the Commitment Fee Percentage" appearing therein and
substituting the percentage "0.500%" therefor.
2.21 Article II of the Credit Agreement is hereby amended by adding
a new Section 2.06A immediately following Section 2.06 thereof to read as
follows:
"SECTION 2.06A ADMINISTRATIVE FEE. The Borrowers shall pay
to the Administrative Agent an administrative fee of $3,500 in
connection with any reallocation of the Total Revolving Credit
Commitment hereunder; PROVIDED, HOWEVER, if there is a
concurrent reallocation of the 'Total Revolving Credit
Commitment' under the 2000 Credit Agreement,
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the Borrowers shall only be obligated to pay one such
administrative fee."
2.22 The first sentence of Section 2.07(a) of the Credit Agreement is
hereby amended by deleting the "." appearing at the end thereof and
substituting the following therefor:
"; and PROVIDED, FURTHER, that the Borrowers shall have
concurrently provided notice under the 2000 Credit Agreement
for a pro rata (based on the aggregate of the 'Total Revolving
Credit Commitment' under the 2000 Credit Agreement and the Total
Revolving Credit Commitment under this Agreement) reduction of
the 'Total Revolving Credit Commitment' thereunder."
2.23 Section 2.09(a) of the Credit Agreement is hereby amended by
deleting the "." appearing at the end thereof and substituting the following
therefor:
"; and PROVIDED, FURTHER, that the Borrowers shall have
concurrently prepaid 'Loans' under the 2000 Credit Agreement on
a pro rata basis (based, prior to the Conversion Date, on the
aggregate of the 'Total Revolving Credit Commitment' under the
2000 Credit Agreement and the Total Revolving Credit Commitment
under this Agreement and following the Conversion Date, on the
aggregate of the unpaid principal amount of Term Loans under this
Agreement and the unpaid principal amount of 'Term Loans' under
the 2000 Credit Agreement)."
2.24 Section 2.09(g) of the Credit Agreement is hereby amended by (i)
adding the following language immediately following the phrase "prior to the
Conversion Date," appearing in clause (A) thereof:
"pro rata (based on the aggregate of the Total Revolving Credit
Commitment under this Agreement and the 'Total Revolving Credit
Commitment' under the 2000 Credit Agreement) between the
Revolving Credit Loans and the 'Revolving Credit Loans' under the
2000 Credit Agreement and, with respect to the portion being
8
applied to the Revolving Credit Loans under this Agreement,"
, (ii) adding the following language immediately following the phrase "following
the Conversion Date," appearing in clause (B) thereof:
"pro rata (based on the aggregate of the unpaid amount of Term
Loans under this Agreement and the unpaid principal amount of
'Term Loans' under the 2000 Credit Agreement) and, with respect
to the portion being applied to Term Loans under this Agreement,"
and (iii) adding the following language immediately prior to the parenthetical
appearing in the first proviso thereof:
"to be applied to Revolving Credit Loans under this Agreement".
2.25 The parenthetical in the second sentence of Section 2.13(c) of
the Credit Agreement is hereby amended in its entirety to read as follows"
"(unless otherwise agreed by the Administrative Agent; PROVIDED,
HOWEVER, that if the Administrative Agent in its discretion
determines not to fund under the 2000 Credit Agreement, then it
shall not fund under this Agreement)"
2.26 Section 2.14 of the Credit Agreement is hereby amended by adding
the following sentences at the end thereof:
"Solely for the purposes of this Section 2.14, references to
Notes and Letter of Credit Usage shall mean the aggregate of
Notes and participations in Letter of Credit Usage held by each
Lender and each 'Lender' under the 2000 Credit Agreement, in the
aggregate for both this Agreement and the 2000 Credit Agreement.
For such purposes, SCHEDULE 2.14 annexed hereto sets forth the
combined percentage of each Lender's Revolving Credit Commitment
under this Agreement PLUS each 'Lender's' (under the 2000 Credit
Agreement) 'Revolving Credit Commitment' under the 2000 Credit
Agreement on the Amendment Date (and
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thereafter as such Schedule may be amended from time to time)."
2.27 Section 3.01 of the Credit Agreement is hereby amended by adding
the words "and the 2000 Obligations" immediately following the word
"Obligations" appearing in the first sentence thereof.
2.28 The second sentence of Section 4.14 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"All proceeds of each subsequent borrowing under the Total
Revolving Credit Commitment after the Closing Date shall be used
to provide for working capital requirements and for general
corporate purposes of the Borrowers and, subject to Section 2.03
of this Agreement, if the aggregate of the Total Revolving Credit
Commitment under this Agreement and the 'Total Revolving Credit
Commitment' under the 2000 Credit Agreement has been increased to
$120,000,000, also for Permitted Acquisitions and Permitted De
Novo Capital Expenditures."
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2.29 Article IV of the Credit Agreement is hereby amended by adding a
new Section 4.24 at the end thereof to read as follows:
"SECTION 4.24 BANK ACCOUNTS. Schedule 4.24 hereto sets
forth a list of all of the bank accounts of the Borrowers' and
their subsidiaries in existence as of the Amendment Date. Each
such bank account is subject to a blocked account letter with the
Administrative Agent (such blocked account letter to be in form
and substance satisfactory to the Administrative Agent)."
2.30 Section 5.01 of the Credit Agreement is hereby amended by adding
a new clause (e) at the end thereof to read as follows:
"(e) Credits shall be extended under this Agreement and
the 2000 Credit Agreement on a pro rata basis (based on the
aggregate of the Total Revolving Credit Commitment under this
Agreement and the `Total Revolving Credit Commitment' under the
2000 Credit Agreement)."
2.31 Section 6.05(i) of the Credit Agreement is hereby amended by
adding the phrase "or of any `Default' or `Event of Default' under the 2000
Credit Agreement" immediately following the term "Borrowers" appearing therein.
2.32 Section 6.16 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"SECTION 6.16 LIFE INSURANCE. Maintain in full force and
effect, at all times, the key man life insurance policies on
Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx which have been assigned to the
Administrative Agent for its own benefit and for the benefit of
the Lenders pursuant to the Assignments of Life Insurance."
2.33 Section 6.20 of the Credit Agreement is hereby amended by
deleting the phrase "90 days of the Closing Date" and substituting the phrase
"30 days of the Amendment Date" therefor.
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2.34 Section 6.21 of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety.
2.35 Section 6.24 and 6.25 of the Credit Agreement are hereby amended
in their entirety to read as follows:
"SECTION 6.24 INTENTIONALLY OMITTED.
SECTION 6.25 UCC-1 FINANCING STATEMENTS. Use commercially
reasonable efforts to cause the filing of (i) an amendment in
form and substance satisfactory to the Administrative Agent to
each of the UCC-1 Financing Statements described in Part I of
SCHEDULE 6.25 hereto within 30 days of the Amendment Date, (ii)
each UCC-1 Financing Statement described in Part II of Schedule
6.25 attached hereto within 10 days of the Amendment Date. Within
10 days of the Amendment Date, confirm to the Administrative
Agent that it notified each party to any security agreement
whereby (i) Serra Park is the secured party and (ii) the name of
Serra Park mistakenly appears as "Serra Park Services,
Incorporated" of the proper name of Serra Park."
2.36 Article VI of the Credit Agreement is hereby amended by adding a
new Section 6.26 at the end thereof to read as follows:
"SECTION 6.26 ADDITIONAL CAPITAL. No later than December 31,
2000, raise not less than $30,000,000 net to Holdings from the
sale of capital stock or the issuance of Subordinated
Indebtedness, such sale or issuance to be on terms and conditions
acceptable to the Required Lenders, the proceeds of which shall
be applied in accordance with Section 2.09(g) hereof."
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2.37 Section 7.01(g) of the Credit Agreement is hereby amended by
deleting the ";" appearing at the end thereof and substituting the following
therefor:
"under this Agreement and the `Lenders' under the 2000 Credit
Agreement on a pro rata, pari passu basis;"
2.38 Section 7.03(iii) of the Credit Agreement is hereby amended by
deleting the "," appearing at the end thereof and substituting the following
therefor:
"and Indebtedness under the 2000 Credit Agreement (which may be
increased to $30,000,000),"
2.39 Sections 7.09, 7.10 and 7.11 of the Credit Agreement are hereby
amended in their entirety to read as follows:
"SECTION 7.09 LEVERAGE RATIO: INTEREST LEVERAGE RATIO.
(a) LEVERAGE RATIO. Permit the Leverage Ratio of Holdings and its
subsidiaries on a Consolidated basis at the end of any fiscal
quarter to be greater than the respective amounts set forth below
opposite such dates:
Quarter Ending Ratio
-------------- -----
December 31, 1999, March 3.75:1.00
31, 2000 and June 30, 2000
September 30, 2000, 3.25:1.00
December 31, 2000, March 31,
2001, June 30, 2001
and September 30, 2001
December 31, 2001 and 3.00:1.00
March 31, 2002
June 30, 2002 and 2.50:1.00
September 30, 2002
December 31, 2002 and 2.25:1.00
March 31, 2003
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Each June 30, September 2.00:1.00
30, December 31 and
March 31 thereafter
(b) INTEREST LEVERAGE RATIO. Permit the Interest
Leverage Ratio of Holdings and its subsidiaries on a Consolidated
basis at the end of any fiscal quarter to be greater than the
respective amounts set forth below opposite such dates:
Quarter Ending Ratio
-------------- -----
December 31, 1999, March 4.75:1.00
31, 2000 and June 30, 2000
September 30, 2000, 4.25:1.00
December 31, 2000, March 31, 2001,
June 30, 2001
and September 30, 2001
December 31, 2001 and 4.00:1.00
March 31, 2002
June 30, 2002 and 3.50:1.00
September 30, 2002
December 31, 2002 and 3.25:1.00
March 31, 2003
Each June 30, September 3.00:1.00
30, December 31 and
March 31 thereafter
SECTION 7.10 INTEREST COVERAGE RATIOS. (a) Commencing
with the fiscal quarter ending December 31, 1999, permit the
ratio for each four fiscal quarter period of (i) EBITDA of
Holdings and its subsidiaries on a Consolidated basis for such
period to (ii) the sum of (x) Cash Interest Expense of Holdings
and its subsidiaries on a Consolidated basis for such period PLUS
(y) the aggregate amount of all
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Preferred Dividends paid in cash during such period to be less
than 3.00:1.00 for the four quarter periods ending December 31,
1999 and March 31, 2000, 2.75:1.00 for the four quarter periods
ending June 30, 2000, September 30, 2000 and December 31, 2000
and 3.00:1.00 at the end of each four quarter period thereafter.
(b) Commencing with the fiscal quarter ending December
31, 1999, permit the ratio for each four fiscal quarter period of
(i) the sum of (x) EBITDA of Holdings and its subsidiaries on a
Consolidated basis for such period MINUS (y) the aggregate amount
of all Maintenance Capital Expenditures made by the Borrowers and
their subsidiaries during such period to (ii) the sum of (x) Cash
Interest Expense of Holdings and its subsidiaries on a
Consolidated basis for such period PLUS (y) the aggregate amount
of all Preferred Dividends paid in cash during such period to be
less than 2.50:1.00 for the four quarters periods ending December
31, 1999 and March 31, 2000, 2.25:1.00 for the four quarter
periods ending June 30, 2000, September 30, 2000 and December 31,
2000 and 2.50:1.00 at the end of each four quarter period
thereafter.
SECTION 7.11 FIXED CHARGE RATIO. Commencing with the
fiscal quarter ending June 30, 2000, permit the Fixed Charge
Coverage Ratio of Holdings and its subsidiaries on a Consolidated
basis for each one fiscal quarter period (in the case of the
fiscal quarter ending June 30, 2000), two fiscal quarter period
(in the case of the fiscal quarter ending September 30, 2000),
three fiscal quarter period (in the case of the fiscal quarter
ending December 31, 2000) or four fiscal quarter period (in the
case of the fiscal quarter ending March 31, 2001) and for each
four fiscal quarter period thereafter to be less than 1.25:1.00."
2.40 Section 7.17 of the Credit Agreement is hereby amended by
deleting the "," appearing at the end thereof and substituting the following
therefor:
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"and under the 2000 Credit Agreement, on a pro rata basis."
2.41 Section 7.20 of the Credit Agreement is hereby amended by adding
the phrase ", the 2000 Credit Agreement" immediately following each reference to
"this Agreement" appearing therein.
2.42 Clause (g) of Article VIII of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(g) default shall be made with respect to (i) the 2000
Credit Agreement or (ii) any other Indebtedness or obligations
under a capitalized lease of any Loan Party (excluding
Indebtedness outstanding hereunder) which either individually or
taken together with other such Indebtedness as to which a default
has occurred shall exceed $150,000 if the effect of any such
default under either (i) or (ii) above shall be to accelerate,
or to permit the holder or obligee of any such Indebtedness or
obligations under a capitalized lease (or any trustee on behalf
of such holder or obligee) at its option to accelerate, the
maturity of such Indebtedness or obligations under a capitalized
lease;"
2.43 Article IX of the Credit Agreement is hereby amended by (i)
deleting the "." appearing at the end of the first sentence of the first
paragraph thereof and substituting the following therefor:
"and each Lender hereby confirms that the Administrative Agent
may also act as such under the terms of the 2000 Credit
Agreement."
, (ii) restating the parenthetical appearing in clause (i) of the tenth
paragraph thereof in its entirety to read as follows:
"(based on the aggregate of the Total Revolving Credit Commitment
under this Agreement and the 'Total Revolving Credit Commitment'
under the 2000 Credit Agreement)"
and (iii) deleting the word "its" appearing immediately prior to the term "pro
rata" in the ninth line of the tenth paragraph thereof and substituting the word
"such" therefor.
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2.44 Section 11.01(a) of the Credit Agreement is hereby amended by
deleting the name and address "XxXxxxxxx, Will & Xxxxx, 0000 Xxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Esq.
(Telecopy No. (000) 000-0000)" and substituting the following name and address
therefor:
"Xxxxxxxx & Xxxxxxxx LLP, 00000 XxxXxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx,
Esq. (Telecopy No. (000) 000-0000)"
2.45 Section 11.01(c) of the Credit Agreement is hereby amended by
deleting the address for the Administrative Agent and substituting the following
address therefor:
"Two Walnut Creek Center, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Vice
President, Commercial Finance Division (Telecopy No. (925)
943-7442)"
2.46 Clauses (i), (ii) and (iii) of Section 11.03(c) of the Credit
Agreement are hereby amended in their entirety to read as follows:
"(i) each such assignment shall be of a constant, and not a
varying, percentage of all of the assigning Lender's rights and
obligations under this Agreement and the 2000 Credit Agreement,
which shall include the same percentage interest in the Loans,
Letters of Credit and Notes and the 'Loans,' 'Letters of Credit'
and 'Notes' under the 2000 Credit Agreement, (ii) (x) prior to
the Conversion Date, the amount of the Revolving Credit
Commitment and the 'Revolving Credit Commitment' under the 2000
Credit Agreement of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall be in a minimum principal amount
of $4,000,000 (unless to another Lender, in which event there
shall be no minimum requirement) and the amount of the Revolving
Credit Commitment and the 'Revolving Credit Commitment' under the
2000
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Credit Agreement retained by such Lender shall not be less than
$4,000,000 (unless such Lender's minimum hold position shall fall
below $4,000,000 by reason of an assignment to another Lender) or
shall be zero, and (y) after the Conversion Date, the amount of
the Term Loan and the 'Term Loan' under the 2000 Credit Agreement
of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall be in a minimum principal amount of
$4,000,000 (unless to another Lender, in which event there shall
be no minimum requirement) and the amount of the Term Loan and
the 'Term Loan under the 2000 Credit Agreement retained by such
Lender shall not be less than $4,000,000 (unless such Lender's
minimum hold position shall fall below $4,000,000 by reason of an
assignment to another Lender) or shall be zero, (iii) the parties
to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the
Register (as defined below), an Assignment and Acceptance,
together with any Note subject to such assignment and a
processing and recordation fee of $3,000 with respect to this
Agreement and the 2000 Credit Agreement combined) and "
2.47 Section 11.06 of the Credit Agreement is hereby amended by (i)
restating the first sentence thereof in its entirety to read as follows:
"If an Event of Default shall have occurred and be continuing,
upon the request of the Required Lenders each Lender shall and is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of any of the
Borrowers against any and all of the obligations of the Borrowers
now or hereafter
18
existing under this Agreement and the 2000 Credit Agreement and
the Notes held by such Lender and the 'Notes' held by the
'Lenders' under the 2000 Credit Agreement, irrespective of
whether or not such Lender shall have made any demand under this
Agreement or the 2000 Credit Agreement or the Notes or the
'Notes' held by the 'Lenders' under the 2000 Credit Agreement and
although such obligations may be unmatured. "
and (ii) deleting the "." appearing at the end of the last sentence thereof and
substituting the following therefor:
"; PROVIDED, HOWEVER, that such rights are subject to the
provisions of Section 2.14 hereof."
2.48 Section 11.08(b) of the Credit Agreement is hereby amended by
adding the following new sentence immediately prior to the last sentence
thereof:
"Any proposed increase in the Total Revolving Credit Commitment
hereunder which would cause the aggregate of the Total Revolving
Credit Commitment hereunder and the 'Total Revolving Credit
Commitment' under the 2000 Credit Agreement to exceed
$120,000,000 shall require the consent of all Lenders."
2.49 The first and second paragraphs of Article XII of the Credit
Agreement are hereby amended in their entirety to read as follows:
"Each Guarantor unconditionally guarantees, as a primary obligor
and not merely as a surety, jointly and severally with each other
Guarantor, the due and punctual payment of the principal of and
interest on each of the Notes and the 'Notes' under the 2000
Credit Agreement, when and as due, whether at maturity, by
acceleration, by notice of prepayment or otherwise, and the due
and punctual performance of all other Obligations and all other
'Obligations' under the 2000 Credit Agreement (such 'Obligations'
together with the Obligations under this Agreement are
collectively referred to solely for the purposes of this Article
XII as the
19
'Obligations'). Each Guarantor further agrees that the
Obligations may be extended and renewed, in whole or in part,
without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligations.
Each Guarantor waives presentment to, demand of payment from and
protest to the Borrowers of any of the Obligations, and also
waives notice of acceptance of its guarantee and notice of
protest for nonpayment. The obligations of a Guarantor hereunder
shall not be affected by (a) the failure of any Lender or the
Administrative Agent to assert any claim or demand or to enforce
any right or remedy against the Borrowers or any other Guarantor
under the provisions of this Agreement, the 2000 Credit
Agreement, the Notes or any of the other Loan Documents or
otherwise; (b) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Agreement, the Notes,
the 'Notes' under the 2000 Credit Agreement, any of the other
Loan Documents, any guarantee or any other agreement; (c) the
release of any security held by the Administrative Agent for the
Obligations or any of them; or (d) the failure of any Lender to
exercise any right or remedy against any other Guarantor of the
Obligations."
2.50 The fourth paragraph of Article XII of the Credit Agreement is
hereby amended by adding the following immediately following the words "the
Notes" appearing therein:
", the 2000 Credit Agreement, the 'Notes' under the 2000 Credit
Agreement"
2.51 Schedules III, IV, V, 4.01, 4.06(a), 4.10, 4.21 and 6.25 to the
Credit Agreement are hereby replaced in their entirety by Schedules III, IV, V,
4.01, 4.06(a), 4.10, 4.21 and 6.25 annexed hereto.
20
SECTION 3 CONFIRMATION OF LOAN DOCUMENTS. Each Loan Party, by its
execution and delivery of this Agreement, irrevocably and unconditionally
ratifies and confirms in favor of the Administrative Agent that it consents to
the terms and conditions of the Credit Agreement as it has been amended by this
Agreement and that notwithstanding this Agreement, each Loan Document to which
such Loan Party is a party shall continue in full force and effect in accordance
with its terms, as it has been amended on the Amendment Date, and is and shall
continue to be applicable to all of the Obligations.
SECTION 4 CONDITIONS PRECEDENT. This Agreement shall become effective
upon the execution and delivery of counterparts hereof by the Borrowers, the
Guarantors, the Required Lenders and each of the Agents to the Administrative
Agent and the fulfillment of the following conditions;
4.1 All legal matters in connection with this Agreement shall
be satisfactory to the Agents and their respective counsel in their
sole discretion.
4.2 The Administrative Agent shall have received evidence that
the 2000 Credit Agreement shall have become effective in accordance
with its terms.
4.3 The Borrowers shall have paid a fee to each Lender
executing this Agreement equal to 0.25% of such Lender's Total
Revolving Credit Commitment as of the Amendment Date.
4.4 The Administrative Agent shall have received (i) such
amendments to the Security Documents existing on the Amendment Date as
shall have been requested by the Agents, each duly executed by the
applicable Grantors and (ii) an amendment to the Holdings Guarantee,
duly executed by Holdings.
4.5 The Borrowers shall have paid an administrative fee to the
Administrative Agent of $3,500.
4.6 The Administrative Agent shall have received a certificate
signed by a Financial Officer of each Borrower and Guarantor that (i)
both before and after giving effect to the transactions contemplated
herein all representations and warranties contained in this Agreement
or otherwise made in writing to the Administrative Agent in connection
herewith shall be true and correct in all material respects on and as
of the date hereof (except insofar as such representations and
warranties relate expressly to an earlier date), (ii) both before and
after giving effect to the transactions contemplated herein there
exists no unwaived Default or Event of Default and (iii) demonstrating
that the Borrowers are in compliance with the covenants set forth in
Sections 7.07, 7.08, 7.09 and 7.10 as of December 31, 1999.
4.7 Messrs. Xxxx, Scholer, Fierman, Xxxx & Handler, LLP,
counsel to the Agent, shall have received payment in full for all legal
fees charged, and all costs
21
and expenses incurred, by such counsel through the date hereof and all
legal fees charged, and all costs and expenses incurred, by such
counsel in connection with the transactions contemplated under this
Agreement and the other Loan Documents and instruments in connection
herewith and therewith.
4.8 The Administrative Agent shall have received such other
documents as the Agents or their counsel shall reasonably deem
necessary.
SECTION 5 MISCELLANEOUS.
5.1 Each Borrower and each Guarantor reaffirms and restates
the representations and warranties set forth in Article IV of the
Credit Agreement, as amended by this Agreement and after giving effect
to the transactions contemplated herein, and all such representations
and warranties shall be true and correct in all material respects on
and as of the date hereof (except insofar as such representations and
warranties relate expressly to an earlier date). Each Loan Party
represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Agent that:
(a) It has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and
the transactions contemplated hereby and has taken or caused to be
taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the transactions
contemplated hereby;
(b) No consent of any other person (including, without
limitation, shareholders or creditors of any Loan Party), 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, delivery and performance of this Agreement;
(c) This Agreement has been duly executed and delivered on
behalf of each Loan Party by a duly authorized officer, and constitutes
a legal, valid and binding obligation of each Loan Party enforceable in
accordance with its terms, subject to bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and the exercise of judicial discretion
in accordance with general principles of equity; and
(d) The execution, delivery and performance of this Agreement
will not violate any law, statute or regulation, or any order or decree
of any court or governmental instrumentality, or conflict with, or
result in the breach of, or constitute a default under any contractual
obligation of any Loan Party.
22
5.2 Except, as herein expressly amended, the Credit Agreement
is ratified and confirmed in all respects and shall remain in full
force and effect in accordance with its terms.
5.3 All references to the Credit Agreement contained in the
Credit Agreement and the other Loan Documents and the other documents
and instruments delivered pursuant to or in connection therewith shall
mean the Credit Agreement, as amended hereby and as may in the future
be amended, restated, supplemented or modified from time to time.
5.4 This Agreement 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.
5.5 Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
5.6 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO CHOICE OR CONFLICT OF LAW PRINCIPLES THEREOF.
5.7 The parties hereto shall, at any time and from time to
time following the execution of this Agreement, execute and deliver all
such further instruments and take all such further actions as may be
reasonably necessary or appropriate in order to carry out the
provisions of this Agreement.
23
IN WITNESS WHEREOF, the Borrowers, Guarantors, the Administrative
Agent, the Syndication Agent and the Lenders have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
GENTLE DENTAL SERVICE CORPORATION,
as a Borrower
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL MANAGEMENT, INC.,
as a Borrower
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
DENTAL CARE ALLIANCE, INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
GMS HAWAII ACQUISITION COMPANY, as a
Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF
HAWAII, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF
SOUTHERN CALIFORNIA, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF
THE MOUNTAIN STATES, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL MANAGEMENT - PACIFIC
NORTHWEST, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL OF IRVINE, as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GDSC OF PIEDMONT, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL LEGACY, INC.,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
DENTAL CARE ALLIANCE OF FLORIDA, INC.,
as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF MICHIGAN,
INC., as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF GEORGIA,
INC., as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF INDIANA, INC.,
as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL ONE ASSOCIATES, INC.,
as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF
PENNSYLVANIA, INC., as a Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
SERRA PARK DENTAL SERVICES,
INCORPORATED, as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SPDS DMI, INCORPORATED, as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VIce President
THE CHASE MANHATTAN BANK,
as Syndication Agent and as a Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A. (successor by
merger to NationsBank, N. A.), as a Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
FIRST NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President - Team Leader
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
SOVEREIGN BANK, as a Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Solely as to Sections 3 and 5: INTERDENT, INC., as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Co-Chairman of the Board and
Chief Executive Officer
