Exhibit 4.1.11
AMENDMENT NO. 9 TO CREDIT AGREEMENT AND CONSENT TO MERGER
(1999 Credit Agreement)
This AMENDMENT NO. 9 TO CREDIT AGREEMENT AND CONSENT, effective as of
December 31, 2002 (this "Consent"), is entered into by GENTLE DENTAL SERVICE
CORPORATION, a Washington corporation ("Dental Service"), GENTLE DENTAL
MANAGEMENT, INC., a Delaware corporation ("Dental Management") (Dental Service
and Dental Management, each a "Borrower" and collectively, the "Borrowers"), the
Guarantors (as hereinafter defined) and the Lenders (as hereinafter defined).
Reference is hereby made to that certain 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 Dental
Service, Dental Management, the Guarantors named therein, the financial
institutions from time to time party thereto (collectively, the "Lenders"), BNY
ASSET SOLUTIONS LLC (as successor administrative agent to Union Bank of
California, N.A.), as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), and JPMORGAN CHASE BANK, formerly known as THE
CHASE MANHATTAN BANK, as syndication agent for the Lenders (in such capacity,
the "Syndication Agent").
WHEREAS, Dental Management is planning to merge with and into Dental
Service with Dental Service being the surviving entity (the "Merger");
WHEREAS, in connection with the Merger, Dental Service will change its
name to Interdent Service Corporation (the "Name Change");
WHEREAS, the Borrowers have requested that the Lenders consent to the
Merger and the Name Change;
WHEREAS, the Borrowers have requested, and the Lenders have agreed, to
amend the Credit Agreement to reflect the Merger and the Name Change;
WHEREAS, the Borrowers have requested that the Lenders consent to the
Borrowers' maintaining their primary deposit accounts with Xxxxx Fargo Bank,
N.A. ("Xxxxx Fargo"), a financial institution that is not the Administrative
Agent, subject to one or more blocked account agreements or other arrangements
satisfactory in form and substance to the Administrative Agent.
NOW, THEREFORE, the Borrowers, the Guarantors, the Lenders, the
Syndication Agent and the Administrative 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. CONSENT.
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2.1 Merger and Name Change. Subject to the terms and conditions set forth
herein and notwithstanding Sections 6.01, 7.05, 7.17 and 7.18 of the
Credit Agreement, the Lenders hereby consent to the Merger and the Name
Change and to the amendment of any Loan Document (in addition to the
amendment of the Credit Agreement set forth hereunder) to evidence such
Merger and Name Change, provided that (i) no Default or Event of
Default shall have occurred and be continuing at the time of the Merger
or shall result from the consummation of the Merger, (ii) the Merger
results in the all of the assets of Dental Management being assumed by
Dental Service, (iii) the Merger results in all obligations and
liabilities of Dental Management under the Credit Agreement, the Loan
Documents and any other agreements related to the foregoing being
assumed by Dental Service, (iv) all consents and/or waivers required
under any Subordinated Indebtedness to effectuate the Merger and the
Name Change, in form and substance satisfactory to Administrative
Agent, shall have been obtained with copies of the same delivered to
Administrative Agent and (v) Dental Service shall have delivered to the
Administrative Agent an officer's certificate, from an officer of
Dental Service, certifying (a) that (1) the conditions in the foregoing
clauses (i) through (iv) have been satisfied and (2) upon consummation
of the Merger, the security interest of the Administrative Agent (for
the ratable benefit of Lenders) in the assets of Dental Management
transferred to Dental Service are the subject of an effective financing
statement in favor of the Administrative Agent and (b) a pro forma
balance sheet for Dental Service giving effect to the Merger. Upon
delivery of evidence that the Merger has become effective under the
laws of the States of Delaware and Washington in form and substance
satisfactory to the Administrative Agent and upon satisfaction of the
provisions of the foregoing sentence, Dental Management shall cease to
be a Borrower under the Credit Agreement. Notwithstanding the
foregoing, the security interest of the Administrative Agent (for the
ratable benefit of the Lenders) in the assets of Dental Management
transferred to Dental Service pursuant to the Merger shall continue.
2.2 Expiration of Consent to Merger. The consent contained in Section 2.1
terminates and is without further force or effect if the Merger is not
completed by January 31, 2003.
2.3 Consent to Change in Primary Cash Management Bank. Notwithstanding the
provisions of Section 6.15 of the Credit Agreement, the Lenders hereby
consent to the establishment and maintenance by the Borrowers and their
subsidiaries of primary deposit accounts with Xxxxx Fargo Bank, N.A.,
provided that, prior to the establishment of any such account, the
Borrowers, Xxxxx Fargo and the Administrative Agent (including any
successor to the Administrative Agent) shall enter into a blocked
account agreement or other similar arrangement satisfactory in form and
substance to Administrative Agent.
2.4 Limitation of Consent. The consents set forth in Section 2.1 and
Section 2.2 shall be limited precisely as written and is provided
solely with respect to the Merger and the establishment of primary
deposit accounts with Xxxxx Fargo Bank, N.A. Nothing in this Consent
shall be deemed to constitute a consent to (i) any other merger of any
other entities other than pursuant to the Merger as specified in
Section 2.1, (ii) any other establishment of deposit accounts not in
accordance with Section 6.15 or Section 6.24 or (ii) a consent to
noncompliance with any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein.
SECTION 3. CONDITIONS PRECEDENT. This Consent shall become effective upon (i)
the execution and delivery of counterparts hereof by the Borrowers, the
Guarantors, each Lender and each of the Agents to the Administrative Agent, (ii)
the execution and delivery of counterparts of the Amendment No. 6 to Credit
Agreement and Consent to Merger (2000 Credit Agreement), dated of even date
herewith, by the Borrowers, the Guarantors, each Lender (as that term is defined
in the 2000 Credit Agreement) and each of the agents under the 2000 Credit
Agreement to the Administrative Agent under the 2000 Credit Agreement, (iii) an
amendment fee of $75,000 shall have been paid to Administrative Agent for the
ratable benefit of the Lenders under the Credit Agreement and the Lenders under
the 2000 Credit Agreement and (iv) receipt by the Administrative Agent and
O'Melveny & Xxxxx LLP of definitive, executed copies of all agreements and other
documents relating to the Merger and the amendment to the Articles of
Incorporation of Dental Service effectuating the Name Change, certified in each
case as true and correct by an officer of Dental Service, in form and substance
satisfactory to the Administrative Agent and O'Melveny & Xxxxx LLP.
SECTION 4. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is hereby
amended, effective upon the effective date of the Merger, as follows:
4.1 The preamble of the Credit Agreement is hereby amended by deleting the
phrases "(`Dental Service')" and "(`Dental Management'; Dental Service and
Dental Management, each a "Borrower" and collectively, the `Borrowers')."
4.2 The definition of "Borrowers" is hereby deleted in its entirety and
replaced with the following:
"'Borrowers' shall mean Dental Service. Any reference to "the
Borrowers", "any Borrower", "each Borrower", "a Borrower" or any
similar such reference shall be deemed to be a reference to Dental
Service."
4.3 The definition of "Dental Management" is hereby deleted in its entirety
and replaced with the following:
"'Dental Management' shall mean, prior to the Merger, Gentle Dental
Management, Inc., a Delaware corporation, and, upon the occurrence of
the Merger, Dental Service."
4.4 The definition of "Dental Service" is hereby deleted in its entirety
and replaced with the following:
"'Dental Service' shall mean, prior to the Merger, Gentle Dental
Service Corporation, a Washington corporation, and, upon the occurrence
of the Merger, Interdent Service Corporation, a Washington
corporation."
4.5 The following definition is hereby added to the Credit Agreement between the
definition of "Material Adverse Effect" and "Multiemployer Plan":
"'Merger' means the merger of Dental Management with and into Dental
Service."
4.6 Schedule 4.24 to the Credit Agreement is amended by deleting it in
its entirety and substituting therefor Schedule 4.24 attached hereto.
SECTION 5. CONFIRMATION OF LOAN DOCUMENTS. Each Loan Party, by its execution and
delivery of this Consent, irrevocably and unconditionally confirms in favor of
the Administrative Agent that each Loan Document to which such Loan Party is a
party shall continue in full force and effect in accordance with its terms and
is and shall continue to be applicable to all of the Obligations.
SECTION 6. MISCELLANEOUS.
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6.1 In order to induce the Lenders to enter into this Consent, each Borrower and
each Guarantor, by its execution of a counterpart of this Consent, reaffirm and
restate the representations and warranties set forth in Article IV of the Credit
Agreement, 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). To further induce the
Lenders to enter into this Consent, each Borrower and each Guarantor, by its
execution of a counterpart of this Consent, represent and warrant (which
representations and warranties shall survive the execution and delivery hereof)
to the Administrative Agent that:
(a) It has the corporate power and authority to execute, deliver and carry
out the terms and provisions of this Consent 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 Consent and the transactions contemplated hereby;
(b) No consent of any other person (including, without limitation,
stockholders or creditors of any Borrower or any Guarantor), 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 Consent;
(c) This Consent has been duly executed and delivered on behalf of each
Borrower and each Guarantor by a duly authorized officer, and
constitutes a legal, valid and binding obligation of each Borrower and
each Guarantor 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;
(d) The execution, delivery and performance of this Consent 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 Borrower or any Guarantor; and
(e) After giving effect to the transactions contemplated herein, there
exists no Default or Event of Default
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, including, without limitation, the provisions set
forth in Section 11.04 of the Credit Agreement.
6.3 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 may
in the future be amended, restated, supplemented or modified from time to time.
6.4 This Consent 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.
6.5 Delivery of an executed counterpart of a signature page to this Consent by
telecopier shall be effective as delivery of a manually executed counterpart of
this Consent, provided however that the foregoing does not excuse the duty of
each party to deliver a manually executed counterpart of a signature page to
this Consent.
6.6 THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CHOICE OR
CONFLICT OF LAW PRINCIPLES THEREOF.
6.7 The parties hereto shall, at any time and from time to time following the
execution of this Consent, execute and deliver all such further instruments,
including amendments to other Loan Documents, and take all such further actions
as may be reasonably necessary or appropriate in order to carry out the
provisions of this Consent.
IN WITNESS WHEREOF, the Borrowers, Guarantors, the Administrative
Agent, the Syndication Agent and the Lenders have caused this Consent 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/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: President
GENTLE DENTAL MANAGEMENT, INC., as a Borrower
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: President
INTERDENT, INC., as a Guarantor
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Vice President - Finance
Lenders and Agents:
BNY ASSET SOLUTIONS LLC, as Administrative Agent
By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, formerly known as THE CHASE MANHATTAN
BANK, as Syndication Agent and as a Lender
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President
B IV CAPITAL PARTNERS, L.P.
By: GP Capital IV, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager, as a Lender
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Member
B III-A CAPITAL PARTNERS, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager, as a Lender
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Member
STATE STREET BANK & TRUST, solely in its capacity as Custodian
for General Motors Employees Global Group Pension Trust as
directed by DDJ Capital Management, LLC, and not in its
individual capacity, as a Lender
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: AVP
PLEASANT STREET INVESTORS, LLC, as a Lender
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title:
