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EXHIBIT 10.6
SIXTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is executed as of October 2, 2000, by and among MONARCH
DENTAL CORPORATION, a Delaware corporation ("Borrower"), BANK OF AMERICA, N.A.,
a national banking association ("Administrative Agent"), as administrative
agent, and the entities from time to time designated as "Lenders" under the Loan
Agreement (herein defined) ("Lenders"), and is connected to by the GUARANTORS
listed on the signature pages attached hereto.
WITNESSETH:
WHEREAS, Borrower, Administrative Agent and Lenders entered into that
certain Second Amended and Restated Loan Agreement, dated as of June 30, 1999,
pursuant to which Lenders agreed to make the Credit Facility (as therein
defined) available to Borrower (as heretofore or hereafter amended, the "Loan
Agreement") (each capitalized term used but not otherwise defined herein shall
have the same meaning given to it in the Loan Agreement); and
WHEREAS, Borrower, Administrative Agent and Lenders amended the Loan
Agreement pursuant to that certain Third Amendment to Second Amended and
Restated Loan Agreement dated as of June 30, 2000 (the "Third Amendment") which
(i) extended the deadline for Borrower to raise the Required Institutional Debt
and (ii) permitted the sale of all of the outstanding capital stock of Borrower
to the Proposed Purchaser identified therein; and
WHEREAS, Borrower, Administrative Agent and Lenders amended the Loan
Agreement pursuant to that certain Fourth Amendment to Second Amended and
Restated Loan Agreement dated as of August 11, 2000 (the "Fourth Amendment")
which provided for a substitute Proposed Purchaser, and extended the timeframe
for certain delivery requirements contained in the Third Amendment; and
WHEREAS, Borrower, Administrative Agent and Lenders amended the Loan
Agreement pursuant to that certain Fifth Amendment to Second Amended and
Restated Loan Agreement dated as of September 1, 2000 (the "Fifth Amendment")
which restructured and extended the timeframe for certain delivery requirements
set forth in the Fourth Amendment; and
WHEREAS, Borrower has requested that such delivery requirements be
further restructured and extended; and
WHEREAS, subject to the terms and conditions contained herein,
Administrative Agent and the Lenders have agreed to such request.
SIXTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 1
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NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower,
Administrative Agent and Lenders hereby covenant and agree as follows:
ARTICLE I - AMENDMENTS
Section 1.1. Debt Restructure. In lieu of the requirements
previously set forth in Section 1.1 of the Fifth Amendment, Borrower hereby
covenants and agrees that:
(a) On or before November 3, 2000, Borrower shall deliver to
Administrative Agent the following: (i) an Offering Memorandum to be
delivered to potential lenders and/or investors for not less than
$15,000,000 of unsecured Permitted Subordinate Institutional Debt (the
"Subordinate Debt"), along with a complete list of potential lenders
and/or investors (with addresses, phone numbers and contact names) to
which such Offering Memorandum has been delivered contemporaneously
with the delivery to Administrative Agent, and (ii) and Bank Book to be
delivered to potential lenders for senior debt of $75,000,000 (a
substantial part of which shall be a term loan), an amount at least
equal to the amount necessary to refinance the balance of the Credit
Facility and the Short Term Loan after reducing the Credit Facility and
the Short Term Loan by the proceeds of the Subordinate Debt (the
"Senior Debt"), along with a complete list of potential lenders (with
addresses, phone numbers and contact names) to which such Bank Book has
been delivered contemporaneously with the delivery to Administrative
Agent.
(b) On or before December 4, 2000, Borrower shall deliver to
Administrative Agent the following: (i) written commitments from
lenders and/or investors for the Subordinate Debt, and (ii) written
commitments from lenders for the Senior Debt (collectively, the
"Financing Commitments"). Additionally, on or before December 4, 2000.
Borrower shall deliver to Administrative Agent a time line in detail
satisfactory to Required Lenders (the "Time Line") of the significant
actions (e.g. execution of definitive financing agreements and a due
diligence schedule) which will be necessary to cause the transactions
contemplated by the Financing Commitments (the "Refinancing
Transactions") to be consummated on or before December 15, 2000.
(c) Borrower shall consummate the Refinancing Transactions on
or before December 15, 2000.
Borrower understands and agrees that Borrower's failure to consummate
the actions above set forth by the date indicated or to comply with the terms of
this Section 1.1 shall constitute a default under the Credit Facility and the
Short Term Loan for which Borrower shall not be entitled to a cure period.
Section 1.2. Board Approval of Financing Terms. By its execution
hereof, Borrower hereby represents and warrants to Administrative Agent that its
Board of Directors has approved the
SIXTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 2
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anticipated pricing and potential dilution which will be required to obtain the
Financing Commitment for the Subordinate Debt, a summary of which is attached
hereto as Exhibit A. In furtherance of the foregoing representation, and as a
condition of the execution of this Amendment, Borrower shall deliver to
Administrative Agent a certificate of Xxxx Xxxxxxxx, Borrower's Secretary, in
the form attached hereto as Exhibit B (the "Certificate of Secretary").
ARTICLE II - MISCELLANEOUS
Section 2.1. Closing. The closing (the "Closing") of the transactions
contemplated by this Amendment shall occur on and as of the date that all
conditions hereto contained in Section 2.2 of this Amendment have been
satisfied (the "Modification Closing Date").
Section 2.2. Conditions to the Closing. As conditions precedent to the
Closing, Borrower, each Guarantor and Required Lenders shall have executed and
delivered this Amendment, and Borrower shall have delivered to Administrative
Agent the Certificate of Secretary.
Section 2.3. Continuing Effect. Except as modified and amended hereby,
the Loan Agreement and other Loan Documents are and shall remain in full force
and effect in accordance with their terms.
Section 2.4. Representations and Warranties. Borrower hereby represents
and warrants to Administrative Agent and the Lenders that (i) except as has
been disclosed by Borrower to Administrative Agent in writing, all
representations and warranties made by Borrower in the Loan Agreement as of the
date thereof are true and correct as of the date hereof, as if such
representations and warranties were recited herein in their entirety and (ii)
Borrower is not in default of any covenant or agreement contained in the Loan
Agreement.
Section 2.5. Payment of Expenses. Borrower agrees to pay to
Administrative Agent the reasonable attorneys' fees and expenses of
Administrative Agent's counsel and other expenses incurred by Administrative
Agent in connection with this Amendment.
Section 2.6. Binding Agreement. This Amendment shall be binding upon,
and shall inure to the benefit of, the parties' respective representatives,
successors and assigns.
Section 2.7. Ratification. Except as otherwise expressly modified by
this Amendment, all terms and provisions of the Loan Agreement, the Notes and
the other Loan Documents, shall remain unchanged and hereby are ratified and
confirmed and shall be and shall remain in full force and effect, enforceable
in accordance with their terms.
Section 2.8. No Defenses. Borrower and each Guarantor, by its execution
of this Amendment, hereby declares that it has no set-offs, counterclaims,
defenses or other causes of action against Administrative Agent or any Lender
arising out of the Credit Facility, the modification of the Credit Facility,
any documents mentioned herein or otherwise; and, to the extent any such
set-offs,
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 3
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counterclaims, defense or other causes of action may exist, whether known or
unknown, such items are hereby waived by Borrower and each Guarantor.
Section 2.9 Further Assurance. The parties hereto shall execute other
documents as may be necessary or may be necessary or as may be required, in the
opinion of counsel to Administrative Agent, to effect the transactions
contemplated hereby and/or security interest of all other collateral
instruments, as modified by this Amendment. Borrower also agrees to provide to
Administrative Agent such other documents and instruments as Lenders reasonably
may request in connections with the modification of the Credit Facility effected
hereby.
Section 2.10. Usury Savings Clause. Notwithstanding anything to the
contrary in this Amendment, the Notes or any other Loan Documents, or in any
other agreement entered into an connection with the Notes or securing the
indebtedness evidenced by the Notes, whether now existing or hereafter arising
and whether written or oral, it is agreed that the aggregate of all interest and
other charges constituting interest, or adjudicated as constituting interest,
and contracted for, chargeable or receivable under the Notes or otherwise in
connection with the Notes shall under no circumstances exceed the maximum rate
of interest permitted by applicable law. In the event the maturity of the Notes
is accelerated by reason of an election by any of the holders thereof resulting
from a default thereunder or under any other document executed as security
therefor or in connection therewith, or by voluntary prepayment by the maker, or
otherwise, then earned interest may never include more than the maximum rate of
interest permitted by application law. If from any circumstance any holder of
any of the Notes shall ever receive interest or any other charges constituting
interest, or adjudicated as constituting interest, the amount, if any, which
would exceed the maximum rate of interest permitted by applicable law shall be
applied to the reduction of the principal amount owing on such Notes or on
account of any other principal indebtedness of the maker to the holders of such
Notes, and not to the payment of interest, or if such excessive interest exceeds
the unpaid balance of principal thereof and such other indebtedness, the amount
of such excessive interest that exceeds the unpaid balance of principal thereof
and such other indebtedness shall be refunded to the maker. All sums paid or
agreed to be paid to the holders of the Notes for the use, forbearance or
detention of the indebtedness of the maker to the holder of such Notes shall be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full for the purpose of determining the actual
rate on such indebtedness is uniform throughout the term thereof.
The terms "maximum amount" or "maximum" as used in this Amendment or
the Notes, or in any other agreement entered into in connection with the Notes
or securing the indebtedness evidenced by the Notes, whether now existing or
hereafter arising and whether written or oral, including, as to Chapter 303 of
the Texas Finance Code (and as same may be incorporated by reference in other
statutes of the State of Texas), but otherwise without limitation, that rate
based upon the "weekly ceiling"; provided, however, that this designation shall
not preclude the rate of interest contracted for, charged or received in
connection with the Credit Facility from being governed by, or construed in
accordance with, any other state or federal law, including but not limited to,
Public Law 96-221.
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 4
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Section 2.11. Non-waiver of Events of Default. Neither this Amendment nor
any other document executed in connection herewith constitutes or shall be
deemed (a) a waiver of, or consent by Administrative Agent or any Lender to,
any default or event of default which may exist or hereafter occur under any of
the Loan Documents, (b) a waiver by Administrative Agent or any Lender of any
of Borrower's obligations under the Loan Documents, or (c) a waiver by
Administrative Agent or any Lender of any rights, offsets, claims, or other
causes of action that any Lender may have against Borrower.
Section 2.12. Enforceability. In the event the enforceability or validity
of any portion of this Amendment, the Loan Agreement, the Notes, or any of the
other Loan Documents is challenged or questioned, such provision shall be
construed in accordance with, and shall be governed by, whichever applicable
federal or Texas law would uphold or would enforce such challenged or
questioned provision.
Section 2.13. Counterparts. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.
Section 2.14. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.
Section 2.15. Entire Agreement. This Amendment and the other Loan
Documents, contain the entire agreements between the parties relating to the
subject matter hereof and thereof. This Amendment and the other Loan Documents
may be amended, revised, waived, discharged, released or terminated only by a
written instrument or instruments, executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
Section 2.16. Partial Execution. This Amendment shall be effective for
all purposes upon execution by Borrower, Guarantors, and Required Lenders (as
defined in the Loan Agreement). If a particular provision of this Amendment is
of the nature described in subsection (b) of the definition of Required Lenders
(a "Material Change"), then that provision shall only be effective upon
execution of all of the Lenders, but the failure of all of the Lenders to so
execute this Amendment shall not affect the effectiveness of those portions of
this Amendment which do not constitute a Material Change.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED AND MAY NOT
BE CONTRADICTED BY EVIDENCE
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 5
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OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first written above.
BORROWER:
MONARCH DENTAL CORPORATION,
a Delaware corporation
By:
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Name:
--------------------------------
Title:
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ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A., a national
banking association, as Administrative
Agent
By:
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Name:
--------------------------------
Title:
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LENDERS:
BANK OF AMERICA, N.A., a national
banking association,
By:
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Name:
--------------------------------
Title:
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SIXTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 6
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FLEET NATIONAL BANK
a national banking association
By:
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Name:
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Title:
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 7
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CONSENT OF GUARANTORS
Each Guarantor hereby (a) acknowledges its consent to this Agreement and the
changes to the Credit Facility effected hereby, (b) ratifies and confirms all
terms and provisions of its respective Guaranty and the security instruments
relating to the Collateral, (c) agrees that such Guaranty and security
instruments are and shall remain in full force and effect, (d) acknowledges
that there are no claims or offsets against, or defenses or counterclaims to,
the terms and provisions of and the obligations created and evidenced by such
Guaranty or security instruments, (e) reaffirms all agreements and obligations
under such Guaranty and such security instruments with respect to the Credit
Facility, the Notes, this Agreement and all other documents, instruments or
agreements governing, securing or pertaining to the Credit Facility, as the
same may be modified by this Agreement, (f) and acknowledges that the
Obligations described in this Agreement are the guaranteed obligations under
such Guaranty and are the obligations secured by such security instruments and
(g) represents and warrants that all requisite corporate or partnership action
necessary for it to execute this Agreement has been taken.
EXECUTED as of the 2nd day of October, 2000.
GUARANTORS:
Managed Dental Care Centers, Inc., a Texas corporation
Monarch Dental Associates (Arkansas), Inc., an Arkansas
corporation (f/k/a United Dental Care, Inc.)
Dental Care One (Monarch), Inc. an Ohio corporation
Midwest Dental Management, Inc. a Wisconsin corporation
Dental Center of Indiana (Monarch), Inc. and
Indiana corporation;
Midwest Dental Care, Mondovi, Inc., a Wisconsin
corporation;
Midwest Dental Care, Sheboygan, inc., a Wisconsin
corporation;
Monarch Dental Management, Inc., a Texas corporation;
Three Peaks Dental Management, Inc., a Colorado
corporation;
Monarch Dental Associates (Utah), Inc., a Utah
corporation
By:
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Name:
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Title:
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MacGregor Dental Associates, L.P., a Texas limited
partnership
By: Monarch Dental Management, Inc., a Texas
corporation, its general partner
By:
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Name:
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Title:
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 8
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Monarch Dental Associates, LP., a Texas limited
partnership
By: Monarch Dental Management, Inc., a Texas
corporation, its general partner
By:
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Name:
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Title:
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Monarch Dental (Press) Associates, L.P., a Texas
limited partnership
By: Monarch Dental Management, Inc., a Texas
corporation, its general partner
By:
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Name:
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Title:
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Monarch Dental Associates (Midland/Odessa), L.P., a
Texas limited partnership
By: Monarch Dental Management, Inc., a Texas
corporation, its general partner
By:
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Name:
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Title:
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Monarch Dental Associates (Abilene), L.P., a Texas
limited partnership
By: Monarch Dental Management, Inc., a Texas
corporation, its general partner
By:
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Name:
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Title:
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Monarch Dental Associates (Arizona), L.L.C., an
Arizona limited liability company
By: Monarch Dental Associates (Utah), Inc.,
a Utah corporation, its manager
By:
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Name:
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Title:
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Partners Dental Corporation, a Delaware
corporation
By:
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Name:
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Title:
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Valley Forge Dental Associates, Inc.
a Delaware corporation
By:
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Name:
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Title:
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VFD of Pennsylvania, Inc.
a Delaware corporation
By:
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Name:
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Title:
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Horizon Group International, Inc.
an Ohio corporation
By:
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Name:
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Title:
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 10
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Precise Dental Lab, Inc.
an Ohio corporation
By:
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Name:
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Title:
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VFD of Georgia, Inc.
a Delaware corporation
By:
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Name:
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Title:
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VFD of Pittsburgh, Inc.
a Pennsylvania corporation
By:
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Name:
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Title:
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Pro Dent, Inc.
a Pennsylvania corporation
By:
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Name:
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Title:
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VFD Realty, Inc.
a Delaware corporation
By:
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Name:
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Title:
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SIXTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 11
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Exhibit A
Pricing and Dilution Summary
Annual Interest Rate: 13.5%
Stock Ownership Dilution: 10%
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 12
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Exhibit B
CERTIFICATE OF SECRETARY
OF
MONARCH DENTAL CORPORATION
The undersigned ("Affiant") hereby certifies that Affiant is the duly
elected and acting Secretary of Monarch Dental Corporation ("Company"), and is
authorized to execute and deliver this Certificate of Secretary (the
"Certificate") to Bank of America, N.A. as Administrative Agent for itself and
certain other lenders of the Company in connection with that certain Sixth
Amendment to Second Amended and Restated Loan Agreement dated as of October
2, 2000 among the Company, Administrative Agent and the Lenders (the "Sixth
Amendment"), and Affiant further certifies as follows:
I was present at a duly noticed and called meeting of the Board of
Directors of the Company (the "Board") held on _________________, 2000, at
which a quorum of the members of such Board were present (the "Meeting").
At the Meeting, the anticipated pricing and potential stock dilution which
will be required to obtain the Financing Commitment for the Subordinate
Debt (each as defined in the Sixth Amendment) was presented to the Board
and approved by requisite action or vote. A summary of the pricing and
potential stock dilution which will be required to obtain the Financing
Commitment for the Subordinate Debt, as presented to the Board at the
Meeting, is attached to the Sixth Amendment as Exhibit A.
IN WITNESS WHEREOF, I have hereunto set my hand as of October ___, 2000.
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Xxxx Xxxxxxxx, Secretary
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AND RESTATED LOAN AGREEMENT (Monarch Dental) Page 13
