KSFH&H DRAFT OF 8/6/99
AMENDMENT AGREEMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT AGREEMENT NO. 2 dated August __, 1999 (this "AGREEMENT"),
to 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
increase the Total Revolving Credit Commitment (as defined in the Credit
Agreement) from $75,000,000 to $90,000,000;
WHEREAS, State Street Bank and Trust Company ("SSBTC") desires to
become a Lender under the Credit Agreement and to have a Revolving Credit
Commitment of $10,000,000;
WHEREAS, Chase desires to increase its Revolving Credit Commitment
from $10,000,000 to $15,000,000; and
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 5 hereof the Credit Agreement is hereby
amended as follows:
2.1 The amount "$75,000,000" as it appears in the preamble of
the Credit Agreement is hereby deleted and the amount "$90,000,000" is
hereby substituted therefor.
2.2 The definition of "Required Lenders" contained in Section 1.01
of the Credit Agreement is hereby amended in its entirety to read as
follows:
"REQUIRED LENDERS" shall mean, from the Closing Date until the
Conversion Date, Lenders having 66 2/3% of the Total Revolving Credit
Commitment, and thereafter, at any time, Lenders holding 66 2/3% of
Term Loans outstanding at such time.
2.3 Section 7.01(e) of the Credit Agreement is hereby amended by
deleting the amount "$5,000,000" as it appears in such section and
substituting therefor the amount "$7,500,000".
2.4 Schedule 2.01(a) to the Credit Agreement is hereby amended in
its entirety as set forth on Schedule 2.01(a) attached hereto.
2.5 Schedule 2.02 to the Credit Agreement is hereby amended in its
entirety as set forth on Schedule 2.02 attached hereto.
2.6 Schedule 2.03 to the Credit Agreement is hereby amended in its
entirety as set forth on Schedule 2.03 attached hereto.
SECTION 3 ADDITIONAL LENDER. By its signature below SSBTC shall become a
party to and be bound by the provisions of the Credit Agreement as a Lender
and shall have the rights and obligations of a Lender hereunder, thereunder
and under the other Loan Documents.
SECTION 4 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 by this Agreement, and is
and shall continue to be applicable to all of the Obligations.
SECTION 5 CONDITIONS PRECEDENT. This Agreement shall become effective
upon the execution and delivery of counterparts hereof by all parties hereto
to the Administrative Agent and the fulfillment of the following conditions:
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5.1 All legal matters in connection with this Agreement shall be
satisfactory to the Administrative Agent, the Lenders and their
respective counsel in their sole discretion.
5.2 The Administrative Agent shall have received a $3,000
processing and recordation fee from the Borrowers.
5.3 Each of SSBTC and Chase shall have received its Revolving
Credit Note duly executed by the Borrowers, payable to their respective
order and otherwise complying with the provisions of Section 2.04 of the
Credit Agreement.
5.4 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) and (ii) both before and after
giving effect to the transactions contemplated herein there exists no
unwaived Default or Event of Default.
5.5 The Administrative Agent shall have received a favorable
opinion of counsel in form and substance satisfactory to the
Administrative Agent and its counsel.
5.6 Messrs. ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP, counsel
to the Agent, shall have received payment in full for all legal fees
charged, and all costs 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.
5.7 The Administrative Agent shall have received such other
documents as the Lenders or the Administrative Agent or its counsel
shall reasonably deem necessary.
SECTION 6 MISCELLANEOUS.
6.1 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:
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(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.
6.2 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.
6.3 The Acknowledgment, Waiver and Consent (the "WAIVER AND
CONSENT") dated as of July 23, 1999, among the Administrative Agent, the
Lenders, the Borrower and the Guarantors is hereby ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with its terms. By its signature below SSBTC shall become a
party to and be bound by the terms and provisions of the Waiver and
Consent.
6.4 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.
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6.5 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.
6.6 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.
6.7 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.
6.8 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GENTLE DENTAL MANAGEMENT, INC.,
as a Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
DENTAL CARE ALLIANCE, INC.,
as a Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
GMS HAWAII ACQUISITION COMPANY,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GMS DENTAL GROUP MANAGEMENT OF
HAWAII, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GMS DENTAL GROUP MANAGEMENT OF
SOUTHERN CALIFORNIA, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GMS DENTAL GROUP MANAGEMENT OF
THE MOUNTAIN STATES, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GENTLE DENTAL MANAGEMENT - PACIFIC
NORTHWEST, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GENTLE DENTAL OF IRVINE, as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GDSC OF PIEDMONT, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GENTLE DENTAL LEGACY, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
DENTAL CARE ALLIANCE OF FLORIDA, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF MICHIGAN, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF GEORGIA, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF INDIANA, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DENTAL ONE ASSOCIATES, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF
PENNSYLVANIA, INC., as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
SERRA PARK DENTAL SERVICES,
INCORPORATED, as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SPDS DMI, INCORPORATED, as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK, as Syndication
Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ Vollmeh
------------------------------------
Name: ▇▇▇▇▇▇▇ Vollmeh
Title: Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A. (successor by
merger to NationsBank, N. A.), as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FIRST NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY, as a Lender
By: /s/ F. ▇▇▇▇▇▇ Beisl
------------------------------------
Name: F. ▇▇▇▇▇▇ Beisl
Title: Vice President
Solely as to Sections 4 and 6: INTERDENT, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: