Exhibit 4.1.6
AMENDMENT AGREEMENT XX. 0
XXXXXXXXX XXXXXXXXX XX. 0 dated as of June 15, 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:
"`Senior Subordinated Note' shall mean the Borrowers'
Senior Subordinated Note due September 30, 2005 in the
original principal amount of $25,500,000, and all instruments
or documents related thereto, including, without limitation,
the Securities Purchase Agreement referred to therein, in each
case as amended, modified or supplemented from time to time in
accordance with their respective terms and the limitations set
forth in Section 7.17 hereof and the Subordination Agreement.
`Subordination Agreement' shall mean the
Subordination Agreement made as of June 15, 2000 among the
Administrative Agent, the holder of the Senior Subordinated
Note, the Borrowers and Holdings."
2.2 The definition of "Adjusted Total Funded Debt" contained in Section
1.01 of the Credit Agreement is hereby amended by adding the phrase
"but shall include the Senior Subordinated Note" at the end of the
proviso in the first sentence thereof.
2.3 Clause (i)(x) of the definition of "Fixed Charge Coverage Ratio" contain 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 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 as of the date of determination less"
2.4 The definition of "Subordinated Indebtedness" contained in Section1.01
of the Credit Agreement is hereby amended by adding the phrase "and the
Senior Subordinated Note" immediately following the term "Convertible
Subordinated Notes" referred to therein.
2.5 Article VII of the Credit Agreement is hereby amended by adding a new
Section 7.21 at the end thereof to read in its entirety as follows:
"Section 7.21. Minimum Annual EBITDA. Permit for each
of the Fiscal Years listed in the table below, EBITDA of
Holdings and its subsidiaries on a Consolidated basis to be
less than the total amount set forth opposite such Fiscal
Year:
Fiscal Year Ending: Minimum Annual EBITDA
------------------ ---------------------
December 31, 2001 $26,450,000
December 31, 2002 29,900,000
December 31, 2003 33,810,000
December 31, 2004 38,180,000
2.6 The first parenthetical of clause (g) of Article VIII of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(excluding Indebtedness outstanding hereunder or under the
Senior Subordinated Note.)"
2.7 Article VIII of the Credit Agreement is hereby amended by (i) adding an
"or" at the end of clause (n) thereof and (ii) adding a new clause (o) at
the end thereof to read as follows:
"(o) default shall be made with respect to
any Indebtedness or obligations under the Senior
Subordinated Note;"
2.8 Clause (iii) of Section 11.08(b) of the Credit Agreement is hereby amended
by adding the following parenthetical after the word "Collateral:"
"(or grant any other Lien on any of the Collateral)"
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 date hereof, 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 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.
4.3 Messrs. Xxxx, Scholer, Fierman, Xxxx & Handler, LLP and Buchalter,
Nemer, Fields & Younger, counsel to the Agents, shall have received
payment in full for all unpaid 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.
4.4 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.
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.
IN WITNESS WHEREOF, the Borrowers, Guarantors, the
Administrative Agent, the Syndication Agent and the Required 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: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL MANAGEMENT, INC.,
as a Borrower
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
DENTAL CARE ALLIANCE, INC.,
as a Borrower
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
GMS HAWAII ACQUISITION COMPANY, as aGuarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF HAWAII, INC.,
as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF SOUTHERN
CALIFORNIA, INC., as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GMS DENTAL GROUP MANAGEMENT OF THE MOUNTAIN
STATES, INC., as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL MANAGEMENT - PACIFIC NORTHWEST,
INC., as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL OF IRVINE, as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GDSC OF PIEDMONT, INC., as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
GENTLE DENTAL LEGACY, INC.,
as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
DENTAL CARE ALLIANCE OF FLORIDA, INC., as a
Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF MICHIGAN, INC., as a
Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF GEORGIA, INC., as a
Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF INDIANA, INC.,
as a Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL ONE ASSOCIATES, INC., as a Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
DENTAL CARE ALLIANCE OF PENNSYLVANIA, INC.,
as a Guarantor
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
SERRA PARK DENTAL SERVICES, INCORPORATED,
as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SPDS DMI, INCORPORATED, as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
UNION BANK OF CALIFORNIA, N.A., as
Administrative Agent and as a Lender
By: XXXXX XXXXXXX
-------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Syndication
Agent and as a Lender
By: XXXXX XXXXXX
------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: XXXX XXXX
---------
Name: Xxxx. X. Xxxx
Title: Sr. Vice President
FLEET CAPITAL CORPORATION, as a Lender
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A. (successor by merger
to NationsBank, N. A.), as a Lender
By:__________________________________
Name:
Title:
FIRST NATIONAL BANK, as a Lender
By: XXXXX X. XXXXXXX
----------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: XXXXXXX XXXXXXX
---------------
Name: Xxxxxxx Xxxxxxx
Title: Asst. Vice President
SOVEREIGN BANK, as a Lender
By: J XXXXXX
--------
Name: J Xxxxxx
Title: Sr. Vice President
Solely as to Sections 3 and 5: INTERDENT, INC., as a Guarantor
By: XXXXXXX XXXXXX XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
