EXHIBIT 10.28
NATIONSBANK, N.A.
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of May 14, 1998, by and
between NATIONSBANK, N.A., a National Banking Association ("Lender" or "Bank")
and the Borrower and Guarantor described below:
In consideration of the Loan or Loans described below and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, Bank, Borrower and Guarantor agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms defined
herein, the following terms shall have the meaning set forth with respect
thereto:
A. BORROWER. DENTAL CARE ALLIANCE, INC., a Delaware
corporation.
B. BORROWER'S ADDRESS. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
C. GUARANTOR. DENTAL CARE ALLIANCE OF FLORIDA, INC., a Florida
corporation, DENTAL CARE ALLIANCE OF GEORGIA, INC., a Florida corporation,
DENTAL CARE ALLIANCE OF MICHIGAN, INC., A Michigan corporation, and DENTAL ONE
ASSOCIATES, INC., a Georgia corporation and all other Subsidiaries, as
hereinafter defined, that may exist from time to time during the term of the
Loan.
D. GURANTOR'S ADDRESS. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
E. COLLATERAL. The property pledged as security for the Loan.
F. CURRENT ASSETS. Current Assets means the aggregate amount of all of
its assets which would, in accordance with GAAP, properly be defined as current
assets.
G. CURRENT LIABILITIES. Current Liabilities means the aggregate amount
of all current liabilities as determined in accordance with GAAP, but in any
event shall include all liabilities except those having a maturity date which is
more than one year from the date as of which such computation is being made.
H. HAZARDOUS MATERIALS. Hazardous Materials include all materials
defined as hazardous wastes or substances under any local, state or federal
environmental laws, rules or regulations, and petroleum, petroleum products, oil
and asbestos.
I. LOAN(S). Loan(s) means collectively any and all loans heretofore or
hereafter made by Bank to the Borrower.
J. LOAN DOCUMENTS. Loan Documents means this Loan Agreement and any
and all promissory notes executed by Borrower in favor of Bank and all other
documents, instruments, guarantees, certificates and agreements executed and/or
delivered by Borrower, any Guarantor or third party in connection with any Loan.
K. SUBSIDIARIES OR SUBSIDIARY. Any corporation organized under the
laws of the State of the United States of America, or the District of Columbia
or Puerto Rico and more than 50% of the stock of any class of which shall, at
the time as of which any determination is being made, be owned either directly
by Borrower or through any other Subsidiary.
L. TANGIBLE NET WORTH. Tangible Net Worth means the amount by which
total assets exceed total liabilities in accordance with GAAP.
M. ACCOUNTING TERMS. All accounting terms not specifically defined or
specified herein shall have the meanings generally attributed to such terms
under generally accepted accounting principles ("GAAP"), as in effect from time
to time, consistently applied, with respect to the financial statements
referenced in Section 4 hereof.
2. LOAN.
A. LOAN. Bank hereby agrees to make (or has made) a loan or loans to
Borrower in the aggregate principal amount of $15,000,000.00. The obligation to
repay the loan in evidenced by a promissory note or notes dated May 14, 1998
(the promissory note or notes together with any other promissory notes
heretofore or hereafter executed by Borrower in favor of Bank and any and all
renewals, extensions or rearrangements thereof being hereafter collectively
referred to as the "Note"), having a maturity date, repayment terms and
interest rate as set forth in the Note.
B. REVOLVING CREDIT FEATURE. The Loan provides for a revolving line of
credit (the "Line") under which Borrower may from time to time, borrow, repay
and re-borrow funds.
C. NON USAGE FEE. Borrower will pay hereafter on July 1, 1998 and on
the 1st day of each calendar quarter thereafter for the period from and
including the date the Line was established to and including the maturity date
of the Line, a non usage fee at a rate per annum of .25% of the average daily
unused portion of the Line during such period. The Borrower may at any time
upon written notice to the Bank permanently reduce the amount of the Line at
which time the obligation of the Borrower to pay a non-usage fee shall thereupon
correspondingly be reduced.
E. USE OF LOAN PROCEEDS; CONDITIONS.
1. Borrower and its Subsidiaries are dental practice management
companies providing management, administrative and licensing services to dental
practices by entering into management agreements and/or administrative services
agreements with individual dental professional corporations or professional
associations (collectively the "P.A.s"), and also provides licensing services
to P.A.s by entering into licensing agreements. The Loan proceeds shall be mood
for working capital purposes and for the purpose of acquiring assets and/or
entering into management agreements and/or administrative services agreements or
licensing agreements with P.A.s in connection with Borrower's business.
2. At all times during the term of the Loan, Borrower must receive
prior written approval from the Bank for advances of funds under the Line for
the acquisition of assets or entering into management agreements, administrative
services agreements or licensing agreements with a particular P.A. the cost of
which is in excess of $2,500,000,00 and/or in the event the aggregate of all
such advances within any one calendar quarter exceeds $5,000,000.
3. Prior to and as a condition of Borrower's entitlement to an advance
under the Line, Borrower shall provide to Bank a fully executed compliance
certificate in form satisfactory to Bank, evidencing Borrower's compliance with
all of the loan covenants, terms and provisions of this Agreement. Bank
covenants and agrees with Borrower that for purposes of this Agreement and
Borrower's compliance with the terms and provisions hereof, from and after the
date hereof the financial performance for any management agreements,
administrative services agreements and/or license agreement or dental practice
acquired after the date hereof may be annualized using the respective purchase
date am a commencement point once such management agreement, administrative
services agreements license agreement or practice has been owned and/or operated
by Borrower for one full calendar quarter. Until
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such time, such financial performance shall not be used in determining
compliance with the terms and provisions of this Agreement.
4. Borrower covenants and agrees with Bank that as a condition to Bank
granting Borrower permission to form, acquire or merge with a new Subsidiary,
and as a condition to any further advances of the Loan proceeds thereafter,
Borrower shall pledge all of the stock of such new subsidiary to Bank as
security for the loan and shall cause such new Subsidiary to execute and deliver
to Bank a guaranty of all of Borrower's obligations hereunder together with a
security agreement, financing statements and such other documents as Bank shall
require in order to perfect a security interest in the assets of such new
Subsidiary. Further, in connection therewith, Borrower and each Guarantor
covenants and agrees to execute such confirmations of this Agreement and the
Loan Documents as Lender shall require. Failure by Borrower, any Guarantor or
the new Subsidiary to execute and deliver such documents shall be a default
under the Note and this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Borrower and each Guarantor hereby
represents and warrants to Bank as follows;
A. GOOD STANDING. Borrower and each Guarantor is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
its incorporation, and has the power and authority to own its property and to
carry on its business in each jurisdiction in which Borrower or Guarantor does
business.
B. AUTHORITY AND COMPLIANCE. Borrower and each Guarantor has full
power and authority to execute and deliver the Loan Documents and to incur and
perform the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action of the appropriate governing body
of Borrower and each Guarantor. No consent or approval of any public authority
or other third party is required as a condition to the validity of any Loan
Document, and Borrower and each Guarantor is in compliance with all laws and
regulatory requirements to which it is subject.
C. BINDING AGREEMENT. This Agreement and the other Loan Documents
executed by Borrower and each Guarantor constitute valid and legally binding
obligations of Borrower and each Guarantor, enforceable in accordance with their
terms.
D. LITIGATION. There is no proceeding involving Borrower or any
Guarantor pending or, to the knowledge of Borrower or any Guarantor, threatened
before any court or governmental authority, agency or arbitration authority,
which materially or adversely affect the business operations, prospectus,
properties, assets or condition, financial or otherwise, or Borrower or any
Guarantor, except as disclosed to Bank in writing and acknowledged by Bank prior
to the date of this Agreement.
E. NO CONFLICTING AGREEMENTS. There is no charter, bylaw, stock
provision, agreement or other document pertaining to the organization, power or
authority of Borrower or any Guarantor and no provision of any existing
agreement, mortgage, indenture or contract binding on Borrower and any Guarantor
or affecting its property, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the other
Loan Documents,
F. OWNERSHIP OF ASSETS. Borrower and each Guarantor has good title to
its assets and its assets are free and clear of liens, except those granted to
Bank and as disclosed to Bank in writing prior to the date of this Agreement.
G. TAXES. All taxes and assessments due and payable by Borrower and
each Guarantor have been paid or are being contested
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in good faith by appropriate proceedings and the Borrower and each Guarantor has
filed all tax returns which it is required to file.
H. FINANCIAL STATEMENTS. The financial statements of Borrower and each
Guarantor heretofore delivered to Bank have been prepared in accordance with
GAAP applied on a consistent basis throughout the period involved and fairly
present Borrower's and each Guarantor's financial condition as of the date or
dates thereof, and there has been no material adverse change in Borrower's or
any Guarantor's financial condition or operations since December 31, 1997. To
the best of Borrower's and each Guarantor's knowledge, all factual information
furnished by Borrower and each Guarantor to Bank in connection with this
Agreement and the other Loan Documents is and will be accurate and Complete on
the date as of which such information is delivered to Bank and is not and will
not be incomplete by the omission of any material fact necessary to make such
information not misleading.
I. PLACE OF BUSINESS. Borrower's and each Guarantor's chief executive
office is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
J. ENVIRONMENTAL MATTERS. The conduct of Borrower's and each
Guarantor's business operations do not and will not violate any federal laws,
rules or ordinances for environmental protection, regulations of the
Environmental Protection Agency and any applicable local or state law, rule,
regulation or rule of common law and any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials and Borrower and
each Guarantor will not use or permit any other party to use any Hazardous
Materials at any of Borrower's or Guarantor's places of business or at any other
property owned by Borrower or any Guarantor except such materials as are
incidental to Borrower's or Guarantor's normal course of business, maintenance
and repairs and which are handled in compliance with all applicable
environmental laws. Borrower and each Guarantor agrees to permit Bank, its
agents, contractors and employees to enter and inspect any of Borrower's and
Guarantor's places of business or any other property of Borrower or any
Guarantor at any reasonable times upon three (3) days prior notice for the
purposes of conducting an environmental investigation and audit (including
taking physical samples) to insure that Borrower and each Guarantor is complying
with this covenant and Borrower and each Guarantor shall reimburse Bank on
demand for the costs of any such environmental investigation and audit. Borrower
and each Guarantor shall provide Bank, its agents, contractors, employees and
representatives with access to and copies of any and all data and documents
relating to or dealing with any hazardous Materials used, generated,
manufactured, stored or disposed of by Borrower's and Guarantor's business
operations within five (5) days of the request therefore.
K. CONTINUATION OF REPRESENTATION AND WARRANTIES. All representations
and warranties made under this Agreement shall be deemed to be made at and as of
the date hereof and at and as of the date of any advance under any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will, unless Bank
concepts otherwise in writing (and without limiting any requirement of any other
Loan Document):
A. FINANCIAL CONDITION. Maintain Borrower's financial condition as
follows, determined in accordance with GAAP applied on a consistent basis
throughout the period involved and measured on a rolling four quarter basis at
the end of each quarter except to the extent modified by the following
definitions:
i. At all times during the term of the loan, maintain a Fixed Charge
Coverage Ratio of 1.5:1.0, which shall be defined as
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earnings before interest, depreciation and amortization ("EBITDA") plus
operating lease expenses ("OLE") minus actual capital expenditures ("CE") all
divided by interest expense ("IE") plus OLE plus current Maturities of long
term debt ("CMLTD") based on actual CMLTD plus CMLTD based on an imputed seven
year amortization of this loan (i.e. EBITDA + OLE - CE
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IE + OLE + CMLTD). For purposes of this
calculation, capital expenditures are defined as those capital expenditures
incurred during the normal course of operating the business, and do not include
amounts incurred in the purchase of contracts or assets related to the
management and license agreements with the P.A.s managed by Borrower or its
Subsidiaries. For purposes of this paragraph CMLTD shall be defined as actual
principal paid as shown on the financial statements delivered to Bank.
ii. Throughout the term of the Loan, Borrower's total liabilities to
EBITDA shall not exceed 2.0:1.0, which ratio shall be measured on a historical
rolling four-quarter basis and using verifiable proforma acquisition information
for EBITDA for the trailing four quarters, which shall be adjusted to show
current contracts, less those amounts counted twice.
iii. At all times during the Loan, Borrower shall maintain its
liquidity in an amount equal to or greater than $2,500,000.00 in cash or cash
equivalents.
iv. Borrower shall maintain at all times during the Loan a ratio of
total liabilities to Tangible Net Worth of not more than 1.0:1.0.
B. FINANCIAL STATEMENTS AND OTHER INFORMATION. Maintain a system of
accounting satisfactory to Bank and in accordance with GAAP applied on a
consistent basis throughout the period involved, permit Bank's officers or
authorized representatives to visit and inspect Borrower's books of account and
other records at much reasonable times and as often an Bank may desire, and pay
the reasonable fees and disbursements of any accountants or other agents of Bank
selected by Bank for the foregoing purposes. Unless written notice of another
location in given to Bank, Borrower's books and records will be located at
Borrower's chief executive office set forth above. All financial statements
called for below shall be prepared in form and content acceptable to Bank and by
independent certified public accountants acceptable to Bank.
In addition, Borrower and each Guarantor will:
i. Provide Lender (i) within 120 days after the close of each fiscal
year, unqualified audited consolidated and consolidating financial statements,
prepared in conformity with GAAP and certified to Lender, relating to the
financial activities of Borrower and each Guarantor along with Borrower's 10K
report filed with the United States Securities and Exchange Commission (the
"SEC"); and (ii) within 45 days after each quarter end, an executed copy of
Borrower's 10-Q report filed with SEC; and (iii) such other information
reflecting the financial condition of each Borrower and each Guarantor an Lender
may request from time to time. In submitting financial statements to Lender,
Borrower and each Guarantor will certify continuing compliance with all
representations, warranties, and covenants contained in this Agreement and all
documents, and will also certify that it is not in violation or default of any
other agreement or contract, which would have a substantial adverse effect
upon the Borrower, any Guarantor or their property.
vii. Furnish to Bank promptly such additional information, reports and
statements respecting the business
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operations and financial condition of Borrower and each Guarantor, respectively,
from time to time, as Bank may reasonably request.
C. INSURANCE. Maintain insurance with responsible insurance companies
on such of its properties, in such amounts and against such risks as is
customarily maintained by similar businesses operating in the same vicinity,
specifically to include fire and extended coverage insurance covering all
assets, business interruption insurance, workers compensation insurance and
liability insurance, all to be with such companies and in such amounts as are
satisfactory to Bank and with respect to insurance on the Collateral, to contain
a clause naming Bank as a loss payee or an additional insured (as applicable) as
its interest may appear and providing for at least 30 days prior notice to Bank
of any cancellation thereof. Satisfactory evidence of such insurance will be
supplied to Bank prior to funding under the Loan(s) and 30 days prior to each
policy renewal.
D. EXISTENCE AND COMPLIANCE. Maintain its existence, good standing and
qualification to do business, where required and comply with all laws,
regulations and governmental requirements including, without limitation,
environmental laws applicable to it or to any of its property, business
operations and transactions.
E. ADVERSE CONDITIONS OR EVENTS. Promptly advise Bank in writing of
(i) any condition, event or act which comes to its attention that would or might
materially adversely affect Borrower's or any Guarantor's financial condition or
operations, the Collateral, or Bank's rights under the Loan Documents, (ii) any
litigation filed by or against Borrower or any Guarantor that would or might
materially adversely affect Borrower's or any Guarantor's financial condition,
operations, or the collateral or Bank's rights under the Loan Documents, (iii)
any event that has occurred that would constitute an event of default under any
Loan Documents and (iv) any uninsured or partially uninsured lose through fire,
theft, liability or property damage in excess of ,an aggregate of $100,000.00.
F. TAXES AND OTHER OBLIGATIONS. Pay all of its taxes, assessments and
other obligations, including, but not limited to taxes, costs or other expenses
arising out of this transaction, as the same become due and payable, except to
the extent the same are being contested in good faith by appropriate proceedings
in a diligent manner.
G. MAINTENANCE. Maintain all of its tangible property in good
condition and repair and make all necessary replacements thereof, and preserve
and maintain all licenses, trademarks, privileges, permits, franchises,
certificates and the like necessary for the operation of its business.
H. NOTIFICATION OF ENVIRONMENTAL CLAIMS. Borrower shall immediately
advise Bank in writing of (i) any and all enforcement, cleanup, remedial,
removal, or other governmental or regulatory actions instituted, completed or
threatened pursuant to any applicable federal, state, or local laws, ordinances
or regulations relating to any Hazardous Materials affecting Borrower's or any
Guarantor's business operations; and (ii) all claims made or threatened by any
third party against Borrower or any Guarantor relating to damages, contribution,
cost recovery, compensation, loss or injury resulting from any Hazardous
Materials. Borrower shall immediately notify Bank of any remedial action taken
by Borrower or any Guarantor with respect to Borrower's or any Guarantor's
business operations.
5. NEGATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, neither Borrower nor any
Guarantor will without the prior written consent of Bank (and without limiting
any requirement of any other Loan Documents);
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A. TRANSFER OF ASSETS OR CONTROL. _____all, lease, assign or otherwise
dispose of or transfer any assets, except in the normal course of its business,
or enter into any merger or consolidation, or transfer control or ownership of
the Borrower, any Guarantor or Subsidiary or form or acquire any Subsidiary.
B. LIENS. Grant, suffer or permit any contractual or noncontractual
lien on or security interest in its assets, except in favor of Bank, or fail to
promptly pay when due all lawful claims, whether for labor, materials or
otherwise.
C. EXTENSIONS OF CREDIT. Except in the ordinary course of its
business, make any loan or advance to any individual, partnership, corporation
or other entity.
D. BORROWINGS. Create, incur, assume or become liable in any manner
for any indebtedness (for borrowed money, deferred payment for the purchase of
assets, lease payments, as surety or guarantor for the debt for another, or
otherwise) other than to Bank, except for normal trade debts incurred in the
ordinary course of Borrower's or any Guarantor's business which normal trade
debts in aggregate shall not exceed $500,000.00, and except for purchase money
indebtedness to a particular P.A. incurred in connection with the acquisition of
its assets and entering into new management, administrative services and
licensing agreements with new P.A.s.
E. CHARACTER OF BUSINESS. Change the general character of business as
conducted at the date hereof, or engage in any type of business not reasonably
related to its business as presently conducted.
F. PLEDGE OF STOCK. Directly or indirectly by any means
whatsoever, pledge or grant a security interest in any of the stock of any
subsidiary (or subsidiary of a subsidiary); provided however, this prohibition
shall not apply to the pre-existing pledge by Borrower of 500,000 shares of
Dental One Associates, Inc. to ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇ A, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to that
certain Security Agreement dated March 20, 1998 between Borrower and such
parties.
6. EVENTS OF DEFAULT. The Bank shall have the option to declare the entire
unpaid amount, of the Loan and accrued interest immediately due and payable
without presentment, demand, or further notice of any kind, if within 15 days
after notice from Bank, which notice may be verbal or written, any of the
following events are not cured:
A. Any payment of principal or interest on the Loan is not made when
due.
B. Any provision of this Agreement is breached or proves to be untrue
or misleading in any material respect.
C. Any warranty, representation, or statement made or furnished the
Lender by Borrower or any Guarantor in connection with the Loan and this
Agreement (including any warranty, representation, or statement in the
Borrower;s or any Guarantor's financial statement(s)) or to induce the Bank to
make the Loan, is untrue or misleading in any material respect.
D. Any default occurs under any agreement with another creditor which
default is not corrected within the cure period provided in such agreement, if
any.
E. Any voluntary or involuntary bankruptcy, reorganization,
insolvency, arrangement, receivership, or similar proceeding is commenced by or
against Borrower or any Guarantor under any federal or state law, or Borrower
makes any assignment for the benefit of creditors.
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F. Any substantial part of the party which secures the Loan, real or
personal, tangible or intangible, in damaged or destroyed and the damage or
destruction is not covered by collectible insurance.
G. Borrower or any Guarantor defaults in the payment of any principal
or interest on any other loan or obligation to Bank.
H. Borrower or any Guarantor suffers or permits any lien, encumbrance,
or security interest to arise or attach to any of the Borrower's or any
Guarantor's property, or any judgment is entered against Borrower or
any Guarantor that is not satisfied or appealed within 30 days.
I. Any default hereunder shall constitute a default under any other
mortgage, note, obligation or agreement of Borrower held by Bank. The agreements
contained in this paragraph to create cross-defaults under all mortgages, notes,
obligations and agreements between Borrower and Bank, whether currently existing
or hereafter created, in the event of default under one or more of such
mortgages, notes, obligations or agreements is a material and specific
inducement and consideration for the making by Bank of the Loan evidenced by the
Note.
J. Any of Bank's liens, or assignments from Borrower or any Guarantor
are invalidated.
K. That a default by any Guarantor under the terms and conditions of
any of their loans with Lender shall, at the election of Lender, constitute a
default by Borrower under the terms of the Loan contemplated herein.
7. REMEDIES UPON DEFAULT. Upon the occurrence, or the discovery by Lender
of the occurrence, of any of the foregoing events, circumstances, or conditions
of default, Lender shall have, in addition to its option to accelerate to
maturity the full unpaid balance of the Loan, all of the rights and remedies
under applicable law, and in addition shall have the following specific rights
and remedies:
A. To exercise Lender's right of set-off against any account, fund, or
property of any kind, tangible, or intangible, belonging to Borrower which shall
be in Lender's possession or under its control.
B. To cure such defaults, with the result that all costs and expenses
incurred or paid by Lender in effecting such cure shall be additional charges
on the Loan, shall bear interest at the highest rate permitted by law, and shall
be payable upon demand.
C. To exercise any and all other rights and remedies Lender may have
or possess arising under any other loan documents executed by Borrower, in favor
of Lender, evidencing or securing the Loan.
8. NOTICE. Except notice to cure a default which may be verbal, all other
notices, requests or demands which any party is required or may desire to give
to any other party under any provision of this Agreement must be in writing
delivered to the other party at the following address:
Borrower or Guarantors;
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank:
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NATIONSBANK, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Senior Vice President
or to such other address as any party may designate by written notice to the
other party. each such notice, request and demand shall be deemed given or made
as follows:
A. If sent by hand delivery, upon delivery;
B. If sent by mail, upon the earlier of the date of receipt or five
(5) days after deposit in the U.S. Mail, first class postage prepaid.
9. COST, EXPENSES AND ATTORNEY'S FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses, including
reasonable attorneys' fees (to include outside counsel fees and all allocated
costs of Bank's in-house counsel if permitted by applicable law), incurred by
Bank in connection with (a) negotiation and preparation of this Agreement and
each of the Loan Documents, and (b) Bank's continued administration thereof.
10. MISCELLANEOUS. Borrower and Bank further covenant and agree as follows,
without limiting any requirement of any other Loan Document:
A. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to
Bank under any Loan Document, or allowed it by law or equity shall be cumulative
of each other and may be exercised in addition to any and all other rights of
Bank, and no delay in exercising any right shall operate as a waiver thereof,
nor shall any single or partial exercise by Bank of any right preclude any other
or future exercise thereof or the exercise of any other right. Borrower
expressly waives any presentment, demand, protest or other notice of any kind,
including but not limited to notice of intent to accelerate and notice of
acceleration. No notice to or demand on Borrower in any case shall, of itself,
entitle Borrower to any other or future notice or demand in similar or other
circumstances.
B. APPLICABLE LAW. This Loan Agreement and the rights and obligations
of the parties hereunder shall be governed by and interpreted in accordance with
the laws of Florida and applicable United States federal law.
C. AMENDMENT. No modification, consent, amendment or waiver of any
provision of this Loan Agreement, nor consent to any departure by Borrower or
any Guarantor therefrom, shall be effective unless the same shall be in writing
and signed by an officer of Bank, and then shall be effective only in the
specified instance and for the purpose for which given. This Loan Agreement is
binding upon Borrower, each Guarantor, its successors and assigns, and inures to
the benefit of Bank, its successors and assigns; however, no assignment or other
transfer of Borrower's or any Guarantor's rights or obligations hereunder shall
be made or be effective without Bank's prior written consent, nor shall it
relieve Borrower or any Guarantor of any obligations hereunder. There is no
third party beneficiary of this loan agreement.
D. DOCUMENTS. All documents, certificates and other items required
under this Loan Agreement to be executed and/or delivered to Bank shall be in
form and content satisfactory to Bank and its counsel.
E. PARTIAL INVALIDITY. The unenforceability or invalidity of any
provision of this Loan Agreement shall not affect the enforceability or validity
of any other provision herein and the invalidity or unenforceability of any
provision of any Loan Document to any person or circumstance shall not affect
the
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enforceability of validity or such provision as it may apply to other persons or
circumstances.
F. INDEMNIFICATION. Borrower and each Guarantor shall indemnify,
defend and hold Bank and its successors and assigns harmless from and against,
any and all claims, demands, suits, losses, damages, assessments, fines,
penalties, costs or other expenses (including reasonable attorneys' fees and
court costs) arising from or in any way related to any of the transactions
contemplated hereby, including but not limited to actual or threatened damage to
the environment, agency costs of investigation, personal injury or death, or
property damage, due to a release or alleged release of Hazardous Materials,
arising from Borrower's or any Guarantor's business operations, any other
property owned by Borrower or any Guarantor or in the surface or ground water
arising from Borrower's or any Guarantor's business operations, or gaseous
emissions arising from Borrower's or any Guarantor's business operations or any
other condition existing or arising from Borrower's or any Guarantor's business
operations resulting from the use or existence of Hazardous Materials, whether
such claim proves to be true or false. Borrower and each Guarantor further
agrees that its indemnity obligations shall include, but are not limited to,
liability for damages resulting from the personal injury or death of an employee
of the Borrower or any Guarantor, regardless of whether the Borrower or any
Guarantor has paid the employee under the workmen's compensation laws of any
state or other similar federal or state legislation for the protection of
employees. The term "property damage" as used in this paragraph includes, but
is not limited to, damage to any real or personal property of the Borrower or
any Guarantor, the Bank, and of any third parties. The Borrower's and each
Guarantor's obligations under this paragraph shall survive the repayment of the
Loan and any foreclosure or foreclosure of any Loan Document securing the Loan.
G. SURVIVABILITY. All covenants, agreements, representations
and warranties made herein or in the other Loan Documents shall survive the
making of the Loan and shall continue in full force and effect so long as the
Loan is outstanding or the obligation of the Bank to make any advances under the
Line shall not have expired.
11. TAX INDEMNITY. In the event that the Department of Revenue, its agents
or employees, notifies either Borrower or the Lender that the transaction which
is the subject of this Loan Agreement is subject to payment of documentary stamp
tax, intangible tax, or any other such tax, then, in such event, Borrower agrees
to immediately remit to the Department of Revenue or to the Lender the full
amount of such tax deemed to be due and payable as requested by the Department
of Revenue. Borrower may contest any liability for such tax payment; however,
any such contest shall be taken solely at the election, cost, and expense of
Borrower. The liability of Borrower under this provision shall survive the
satisfaction of the obligations referenced hereunder. Any failures of Borrower
to comply with the terms and provisions of this section shall constitute a
default under the Loan Agreement, and all other loan documents executed in
connection therewith.
12. COMPLIANCE. Borrower and each Guarantor shall execute such additional
documents as are reasonably requested by Lender to reflect the terms and
conditions of this Agreement and will cause to be delivered such certificates,
legal opinions and other documents as are reasonably required by Lender in
connection with the Loan. In addition, the Borrower and each Guarantor will pay
all reasonable costs and expenses in connection with the preparation, execution
and delivery of the documents executed in connection with this transaction,
including, without limitation, the reasonable fees and out-of-pocket expenses of
legal counsel to Lender and costs and expenses of Lender in connection with its
enforcement of such documents after the occurrence of an event of default, the
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management and control of the collateral as well as any and all filing and
recording fees and stamp and other taxes with respect thereto and to save Lender
harmless from any and all such costs, expenses and liabilities.
13. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON
OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW). THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN SARASOTA,
FLORIDA, AND ADMINISTERED BY ENDISPUTE, INC., D/B/AJ.A.M.S./ENDISPUTE WHO WILL
APPOINT AN ARBITRATOR. IF J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASS0CIATION
WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE
DEMAND FOR ARBITRATION, FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF
CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER BY
THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK HERETO
(A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B)
TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK
MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN
SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF
ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT, NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
14. NO ORAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS HEREOF, the parties here have caused this Agreement to be duly
executed under seal by their duly authorized representatives as of the date
first above written.
Signed, sealed and delivered BORROWER:
in the presence of:
DENTAL CARE ALLIANCE, INC.,
A Delaware Corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and
*(Print Name of Witness) Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) [CORPORATE SEAL]
DENTAL CARE ALLIANCE, OF FLORIDA,
INC. a Florida corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and
*(Print Name of Witness) Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) [CORPORATE SEAL]
DENTAL CARE ALLIANCE OF GEORGIA,
INC. a Florida corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and
*(Print Name of Witness) Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) [CORPORATE SEAL]
DENTAL CARE ALLIANCE OF MICHIGAN,
INC. a Michigan corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and
*(Print Name of Witness) Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) [CORPORATE SEAL]
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DENTAL ONE ASSOCIATES, INC.,
a Georgia corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and
*(Print Name of Witness) Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) [CORPORATE SEAL]
BANK:
NATIONSBANK, N.A.,
a National Banking Association
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ----------------------
* ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
*(Print Name of Witness) Its: Commercial Banking Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- [CORPORATE SEAL]
* ▇▇▇▇▇ ▇▇▇▇▇▇▇
*(Print Name of Witness)
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