AMENDMENT AGREEMENT NO. 1
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT AGREEMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment Agreement") is made and entered into as of this 31st day of
August, 2001, by and between COAST DENTAL SERVICES, INC., a Delaware corporation
(the "Borrower") and BANK OF AMERICA, N.A., a national banking association
organized and existing under the laws of the United States (the "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender have entered into an Amended and
Restated Loan Agreement dated as of November 4, 1999 (the "Loan Agreement")
pursuant to which the Lender has agreed to make available to the Borrower a
revolving credit facility of up to $20,000,000; and
WHEREAS, the Borrower has requested that the Lender amend the Loan
Agreement in the manner provided herein; and
WHEREAS, upon the terms and conditions contained herein, the Lender is
willing to amend the Loan Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. DEFINITIONS. The term "Loan Agreement" as used herein and in the
Loan Documents shall mean the Loan Agreement as heretofore and hereby amended
and as from time to time further amended or modified. Unless the context
otherwise requires, all capitalized terms used herein without definition shall
have the respective meanings provided therefor in the Loan Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Loan Agreement is
hereby amended, effective as of the date hereof, except as otherwise expressly
indicated in Section 2(f), as follows:
(a) Section 1 is hereby amended inserting the defined term
"Availability Date" in its proper alphabetical order to read as
follows:
"AVAILABILITY DATE. The term "Availability Date" means the date
upon which (a) the Borrower shall have maintained Consolidated
EBITDA (as defined in Section 5(A)(ii)) of not less than $750,000
for two consecutive fiscal quarter periods, and (b) the Borrower
shall have a Consolidated Fixed Charge Coverage
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Ratio (as defined in Section 5(A)(iii)) of not less than 1.50 to
1.00 as of the end of the most recently ended Four Quarter Period."
(b) Section 2(A) is hereby amended by deleting the amount
"$20,000,000.00" in the third line thereof and inserting in lieu
thereof the amount "$5,000,000.00".
(c) Section 2(A)(i) is hereby amended in its entirety so that as
amended it shall read as follows"
"(i) Borrower shall execute and deliver to Lender a Fourth
Renewal and Replacement Revolving Promissory Note in the original
principal sum of Five Million and No/100ths Dollars ($5,000,000.00)
payable to the order of the Lender and evidencing Borrower's
obligation to repay the Revolving Line of Credit (the "Note"). The
payment terms, interest rate and Maturity Date applicable to the
Loan are contained in the Note."
(d) Section 2(A)(iii) is hereby amended by deleting the word "and"
before subsection (d) and inserting the following at the end thereof:
"and (e) the Availability Date shall have occurred."
(e) Section 2(B) is hereby amended by inserting the phrase "From and
after the Availability Date" at the beginning of the first sentence
thereof.
(f) The first sentence of Section 5(A)(ii) is hereby amended,
effective from and as of June 29, 2001 through and including August 31,
2001, in its entirety so that as amended it shall read as follows:
"Permit its ratio of Consolidated Funded Debt to Consolidated
EBITDA to exceed a maximum of (x) 2.25 to 1.00 at any time exclusive
of any Seller Financing and (y) 3.20 to 1.00 at any time includsive
of Seller Financing.
(g) Section 5(A) is hereby amended in its entirety so that as
amended it shall read as follows:
"A. FINANCIAL COVENANTS. Maintain Borrower's financial condition
as follows, determined in accordance with GAAP applied on a
consistent basis throughout the loan period involved except to the
extent modified by the following definitions:
From and after the Availability Date, the Borrower shall not:
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(i) Permit its ratio of consolidated total liabilities to
Consolidated Tangible Net Worth to exceed a maximum of 1.00 to 1.00
at any time.
(ii) Permit its ratio of Consolidated Funded Debt to
Consolidated EBITDA to exceed a maximum of (x) 2.25 to 1.00 at any
time exclusive of any Seller Financing and (y) 2.75 to 1.00 at any
time inclusive of Seller Financing. Consolidated EBITDA shall be
defined as net income plus interest expense (less interest income)
plus tax expense (less tax benefits) plus depreciation expense plus
amortization expense and shall exclude any nonrecurring or
extraordinary cash or noncash income. For purposes of calculating
EBITDA, the Borrower shall be permitted to add-back any losses from
the partial disposition of dental practices resulting from the
current equity sale plan publicly outlined. The amount of such loss
to be added-back shall be substantiated by the Borrower with any
necessary documentation to the satisfaction of the Lender.
(iii) Permit its Consolidated Fixed Charge Coverage Ratio to be
less than 1.50 to 1.00 at the end of any Four Quarter Period. The
Consolidated Fixed Charge Coverage Ratio shall be defined as the
ratio of (x) Consolidated EBITDA less capital expenditures less
cash taxes paid (excluding any cash tax benefit) to (y) current
maturities of long term debt (excluding the Revolving Line of
Credit) plus current maturities of capital leases plus interest
expense.
For the purposes of calculating all financial covenants,
Consolidated EBITDA and the Consolidated Fixed Charge Coverage Ratio
shall be calculated as of the most recently ended Four Quarter
Period and consolidated total liabilities, Consolidated Tangible Net
Worth and Consolidated Funded Debt shall be calculated as of the
date of calculation thereof."
(h) Section 5(I) is hereby amended by in its entirety so that as
amended it shall read as follows:
"I. LOAN PROCEEDS. Use all loan proceeds solely for working
capital needs, capital expenditures and other general corporate
purposes."
(i) Section 6(C) is hereby amended by deleting the second paragraph
thereof.
(j) Section 6 is hereby amended by inserting new subsections (F),
(G), (H) and (I) at the end thereof to read as follows:
"F. DIVIDENDS. Make or pay any dividends or other distributions
on account of any shares of any class of stock of the Borrower
except a dividend payable solely in shares of a class of stock to
holders of that class."
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G. SHARE REPURCHASES. On or after the Availability Date, make
any purchases or other acquisitions for value of any shares of any
class of stock of the Borrower, or any warrants, options or other
rights to acquire shares of any class of stock of the Borrower.
H. ACQUISITIONS. Make any acquisitions of or purchase any
additional dental practices.
I. ADDITIONAL CONSOLIDATED FUNDED DEBT. Incur, create or permit
to exist any additional Consolidated Funded Debt."
(k) Section 7(E) is hereby amended in its entirety so that as
amended it shall read as follows:
"E. Borrower shall fail to perform any covenant set forth in
Section 5(A) or Section 6."
3. BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents, warrants and certifies that:
(a) The representations and warranties made by it in Section 4 of
the Loan Agreement are true on and as of the date hereof before and
after giving effect to this Amendment Agreement;
(b) The Borrower has the power and authority to execute and perform
this Amendment Agreement and has taken all action required for the
lawful execution, delivery and performance thereof.
(c) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower since the date of the most
recent financial reports of the Borrower received by the Lender under
Section 5(B) of the Loan Agreement, other than changes in the ordinary
course of business, none of which has been a material adverse change;
(d) The business and properties of the Borrower are not, and since
the date of the most recent financial report of the Borrower received
by the Lender under Section 5(B) of the Loan Agreement have not been,
adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workmen, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(e) No event has occurred which has not been either waived or
otherwise consented to by you, and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes an
Event of Default on the part of the
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Borrower under the Loan Agreement or the Note either immediately or
with the lapse of time or the giving of notice, or both.
4. CONDITIONS TO EFFECTIVENESS. This Amendment Agreement shall become
effective upon receipt by the Lender of the following:
(a) four (4) counterparts of this Amendment Agreement executed by
the parties hereto;
(b) a new Fourth Renewal and Replacement Revolving Promissory Note
executed by the Borrower in favor of the Lender in the amount of
$5,000,000;
(c) resolutions or consents of the board of directors or other
appropriate governing body of the Borrower certified by its secretary
or assistant secretary as of the date hereof, approving and adopting
this Amendment Agreement and the Note and authorizing the execution and
delivery thereof;
(d) specimen signatures of officers or other appropriate
representatives executing this Amendment Agreement and the Note on
behalf of the Borrower, certified by the secretary or assistant
secretary of the Borrower;
(e) the favorable written opinion with respect to this Amendment
Agreement and the Note executed in connection herewith of special
counsel to the Borrower, dated as of the date hereof, addressed to the
Lender and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx, LLP, special
counsel to the Lender; and
(f) such other instruments and documents as the Lender may
reasonably request.
5. AMENDMENT FEE; EXPENSES. The Borrower agrees to pay to the Lender an
amendment fee of $10,000. The Borrower agrees to pay to the Lender all
reasonable out-of-pocket expenses (including reasonable legal fees and expenses
of special counsel to the Lender) incurred or arising in connection with the
negotiation and preparation of this Amendment Agreement.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or conditions, or of
any proceeding or succeeding breach thereof.
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7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Loan Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
COAST DENTAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
LENDER:
BANK OF AMERICA, N.A.
By: /s/ Sadahri X. Xxxxx
----------------------------------------
Name: Sadahri X. Xxxxx
Title: Vice President
Signature Page 1 of 1
THIRD RENEWAL AND REPLACEMENT
REVOLVING PROMISSORY NOTE
DATE: EFFECTIVE AS OF AUGUST 31, 2001 [ ] NEW [X] RENEWAL
AMOUNT $5,000,000.00 MATURITY DATE: NOVEMBER 4, 2002
================================================================================
BANK: BORROWER:
BANK OF AMERICA, N.A. COAST DENTAL SERVICES, INC., A DELAWARE
000 XXXX XXXXXXX XXXX. - 0XX XXXXX CORPORATION
ATTN. COMMERCIAL BANKING 0000 XXXXX XXXXX XXXXX
XXXXX, XXXXXXX, 00000 SUITE 1000
XXXXX, XXXXXXX 00000
================================================================================
FOR VALUE RECEIVED, the undersigned Borrower unconditionally promises to pay to
the order of Bank, its successors and assigns, without setoff, at its offices
indicated at the beginning of this Note, or at such other place as may be
designated by Bank, the principal amount of Five Million and 00/100ths Dollars
($5,000,000.00), or so much thereof as has been advanced hereunder, together
with interest on the unpaid principal balance from time to time outstanding from
the date of each advance of principal, as hereinafter stated.
This is a Revolving Promissory Note evidencing borrowings up to the
principal sum shown above, but notwithstanding such face amount of this Note,
the actual indebtedness from time to time evidenced hereby shall be the sum of
all advances by Bank to Borrower hereunder, less the aggregate amount of all
principal payments made under this Note by Borrower to Bank, it being the intent
hereof and the purpose of this Note to provide a revolving line of credit which
the Borrower may draw against and which Bank will advance from time to time, at
it's sole discretion and which the Borrower shall repay in whole or in part
from time to time as provided hereinafter, provided however, that the total
principal amount outstanding hereunder shall not ever exceed the face amount of
this Note.
[This Note contains some provisions preceded by boxes. If a box is marked, the
provision applies to this transaction; if it is not marked, the provision does
not apply to this transaction.]
1. RATE.
[ ] PRIME RATE. The Rate shall be the Prime Rate, plus _____ percent, per annum.
The "Prime Rate" is the fluctuating rate of interest established by Bank from
time to time, at its discretion, whether or not such rate shall be otherwise
published. The Prime Rate is established by Bank as an index and may or may not
at any time be the best or lowest rate charged by Bank on any loan.
THIS INSTRUMENT WAS MADE, EXECUTED AND DELIVERED OUTSIDE THE STATE OF FLORIDA,
AND NO FLORIDA DOCUMENTARY STAMP TAX IS DUE HEREON IN ACCORDANCE WITH F.A.C.
12B-4.053(35)
4436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial]
[ ] FIXED RATE. The Rate shall be fixed at ______ percent per annum.
[X] LIBOR RATE. The interest rate on this Note is subject to change from time
to time based on the Libor Rate for each Interest Period plus the applicable
Margin Percentage (hereinafter defined). The Libor Rate for each Interest Period
shall mean the offered rate for deposits in United States dollars in the London
Interbank market for a one month period which appears on the Telerate Screen
Page 3750 as of 11:00 a.m. (London time) on the day that is two London Banking
days (as defined herein) preceding the first Banking Business Day (as defined
herein) of the Interest Period. If at least two such offered rates appear on the
Telerate Screen Page 3750, the rater will be the arithmetic mean of such offered
rates. The Bank may, in its discretion, use any other publicly available index
or reference rate showing rates offered for United States dollar deposits in the
London Interbank market as of the applicable date. In addition a, the Bank may,
in its discretion, use rater quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods.
The applicable Margin Percentage shall be defined as follows:
(i). If the Consolidated Funded Debt to Consolidated EBITDA Ratio
(hereinafter defined) is less than 1:1, then the Margin Percentage
shall be one and twenty five one-hundredths percent (1.25%);
(ii). If the Consolidated Funded Debt to Consolidated EBITDA Ratio is
equal to or greater than 1:1, but less than 1.50:1, then the Margin
Percentage shall be one and fifty one-hundredths percent (1.50%); and
(iii). If the Consolidated Funded Debt to Consolidated EBITDA Ratio is
equal to or greater than 1.50:1, but less than 2.75:1, then the Margin
Percentage shall be one and seventy-five one hundredths percent
(1.75%).
"BUSINESS BANKING DAY" shall mean each day other than a Saturday, a Sunday or
any holiday on which commercial banks in Jacksonville, Florida are closed for
business.
"CONSOLIDATED FUNDED DEBT TO CONSOLIDATED EBITDA RATIO" shall mean a ratio which
is equal to Borrower's funded debt divided by CONSOLIDATED EBITDA (as defined in
Section 5(A)(ii) of the Amended and Restated Loan Agreement of even date
herewith, i.e. net income plus interest expense plus tax expense plus
depreciation expense plus amortization expense and measured on a rolling four
quarter basis.) Consolidated EBITDA shall exclude any nonrecurring or
extraordinary cash or noncash income.
"INTEREST PERIOD" shall mean each period commencing on each Interest Rate
Adjustment Date and ending on the next Interest Rate Adjustment Date.
"INTEREST RATE ADJUSTMENT DATE" shall mean (a) the 4th day of November, 1999 and
the 4th day of each month thereafter with respect to the Libor Rate and (b) the
45th day following the end of the Borrower's fiscal quarter as described in
Section 5(b) of the Loan Agreement (as hereinafter defined) with respect to the
Margin Percentage.
"LONDON BANKING DAY" shall mean each day other than a Saturday, a Sunday or any
holiday on which commercial banks in London, England are closed for business.
436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial] 2
Notwithstanding any provision of this Note, Bank does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges in
excess of the maximum permitted by the applicable law of the State of Florida.
Any payment in excess of such maximum shall be refunded to Borrower or credited
against principal, at the option of Bank.
2. ACCRUAL METHOD. Unless otherwise indicated, interest at the Rate set forth
above will be calculated by the 365/360 day method (a daily amount of interest
is computed for a hypothetical year of 360 days; that amount is multiplied by
the actual number of days for which any principal is outstanding hereunder).
3. RATE CHANGE DATE. Any Rate based on a fluctuating index or base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. If the Rate is to change on any other date or at any other
interval, the change shall be the 4th day of each month. In the event any index
is discontinued, Bank shall substitute an index determined by Bank to be
comparable, in its sole discretion.
4. PAYMENT SCHEDULE. All payments received hereunder shall be applied first to
the payment of any expense or charges payable hereunder or under any other loan
documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Bank
shall determine at its option.
[X] MONTHLY INTEREST PAYMENTS. Commencing on the 4th day of December,
1999, and continuing on the 4th day of each month thereafter through the
Maturity Date, Borrower shall pay all accrued interest at the LIBOR Rate set
forth above.
[X] BALLOON PAYMENT. Notwithstanding anything to the contrary herein,
the entire unpaid outstanding principal balance, together with any accrued
interest, shall be due and payable November 4, 2002 (the "Maturity Date").
[ ] PRINCIPAL PLUS ACCRUED INTEREST PAYMENTS. Commencing on __________,
and continuing on the same day of each month thereafter through and including
the Maturity Date, Borrower shall pay to Bank a principal payment in the amount
of ________________, plus all accrued interest; with a final payment of all
unpaid principal and accrued interest due on _________________________.
[ ] FIXED PRINCIPAL AND INTEREST. Principal and interest shall be paid
in consecutive equal installments of $______ payable [ ] monthly, [ ] quarterly
or [ ] _______, commencing on ____________________, and continuing on the [x]
same day, [ ] last day of each successive month, quarter or other period (as
applicable) thereafter, with a final payment of all unpaid principal and
interest due thereon on _______________. If, on any payment date, accrued
interest exceeds the installment amount set forth above, Borrower will also pay
such excess as and when billed.
[ ] SINGLE PRINCIPAL PAYMENT. Principal shall be paid in full in a
single payment on __________________, 19__. Interest thereon shall be paid [ ]
at maturity, or else [ ] monthly, [ ] quarterly or [ ] ___________, commencing
on __________, 19__, and continuing on the [ ] same day, [ ] last day of each
successive month, quarter or other period (as applicable) thereafter, with a
final payment of all unpaid interest at the stated maturity of this Note.
436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial] 3
[ ] Other.
5. AUTOMATIC PAYMENT.
[X] Borrower has elected to authorize Bank to effect payment of sums due under
this Note by means of debiting Borrower's account number ____________. This
authorization shall not affect the obligation of Borrower to pay such sums when
due, without notice, if there are insufficient funds in such account to make
such payment in full on the due date thereof, or if Bank fails to debit the
account.
6. WAIVERS, CONSENTS AND COVENANTS. Borrower, (the "Obligor"): (a) waives
presentment, demand, protest, notice of demand, notice of intent to accelerate,
notice of acceleration of maturity, notice of protest, notice of nonpayment,
notice of dishonor, and any other notice required to be given under the law to
Obligor in connection with the delivery, acceptance, performance, default or
enforcement of this Note; (b) consents to all delays, extensions, renewals or
other modifications of this Note, or waivers of any term hereof or the failure
to act on the part of Bank, or any indulgence shown by Bank (without notice to
or further assent from Obligor), and agrees that no such action, failure to act
or failure to exercise any right or remedy by Bank shall in any way affect or
impair the obligations of Obligor or be construed as a waiver by Bank of, or
otherwise affect, any of Bank's rights under this Note; and (c) agrees to pay,
on demand, all costs and expenses of collection or defense of this Note,
including, without limitation, reasonable attorney's and paralegal's fees,
including fees related to any suit, mediation or arbitration proceeding, out of
court payment agreement, trial, appeal, bankruptcy proceedings or other
proceeding, in such amount as may be determined reasonable by any arbitrator or
court, whichever is applicable.
7. INDEMNIFICATION. Obligor agrees to promptly pay, indemnify and hold Bank
harmless from all State and Federal taxes of any kind and other liabilities with
respect to or resulting from the execution and/or delivery of this Note or any
advances made pursuant to this Note.
8. PREPAYMENT. Borrower shall have the right, provided that it is not in default
under this Note, to prepay the principal balance of this Note, in whole or in
part, at any time, upon payment of all interest and other sums then due and
payable pursuant to the provisions of this Note. If this Note is satisfied as of
any LIBOR Roll-Over Date, or if the Prime Rate is then in effect, no prepayment
premium shall be payable with respect to any portion of the principal balance of
this Note. However, if the LIBOR Rate is in effect and the prepayment is not
effected on a LIBOR Roll-Over Date, then Bank may require, in its sole
discretion, that Borrower pay to Bank contemporaneously with any such prepayment
of this Note, a sum equal to the amount of the prepayment multiplied by a per
annum interest rate equal to the difference between the LIBOR Rate applicable
thereto, and the 360 day equivalent interest yield (hereinafter call the
"Reinvestment Rate") on any United States Treasury obligations selected by Bank
in an aggregate amount approximately equal to the outstanding principal balance
of this Note, and with a maturity comparable to the LIBOR Roll-Over Date
applicable thereto calculated over a period of time from the date of prepayment
to and including such LIBOR Roll-Over Date. If the LIBOR Rate being prepaid is
equal or less than the Reinvestment Rate, no prepayment premium shall be due.
Any payment of the principal balance of this Note after acceleration of the
maturity date of this Note, or the commencement of any proceedings to enforce
this Note or the Loan Agreement, shall be deemed a voluntary prepayment for the
purposes of this paragraph shall be payable with respect thereto based upon the
LIBOR Rate applicable to this Note immediately prior to such default and
acceleration. Bank shall certify to Borrower the amount and basis of
determination of such prepayment premium, it being agreed that (i) the
calculation of such prepayment premium may be based on any United States
Treasury obligations selected by Bank in its sole discretion and (ii) Bank shall
not be obligated or required to have actually reinvested the prepaid principal
balance of this Note in any such United States Treasury obligations as a
436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial] 4
condition precedent to receiving a prepayment premium calculated as aforesaid.
Borrower shall, upon receipt of such certification and contemporaneously with
any such prepayment of the principal balance of this Note, remit to Bank the
prepayment premium, if any, due in connection therewith as calculated pursuant
to the provisions of this paragraph. Bank shall not be obligated to accept any
prepayment of the principal balance of this Note unless it is accompanied by the
prepayment premium, if any, due in connection therewith as calculated pursuant
to the provisions of this paragraph.
9. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
shall be imposed in an amount not to exceed four percent (4%) of the unpaid
portion of any payment that is more than fifteen days late.
10. CROSS DEFAULT. A default under this Note shall be and constitute a default
under any and all other notes or other evidence of indebtedness and any
instruments of security in which Borrower is liable and of which the Bank is the
holder. A default under any and all other note(s) or other evidence of
indebtedness or any instruments of security in which Borrower is liable and of
which Bank is the holder shall also constitute a default under this Note.
11. EVENTS OF DEFAULT. The following are events of default hereunder: (a) the
failure to pay or perform any obligation, liability or indebtedness of Obligor
to Bank, under this Note; (b) the resignation or withdrawal of Xx. Xxxxx Diasti
from his current position with Borrower, or a change in his status as an active
participant in the day to day operations of Borrower, as determined by Bank in
its sole discretion; (c) the commencement of a proceeding against Obligor for
dissolution or liquidation, the voluntary or involuntary termination or
dissolution of Obligor; or (d) the merger or consolidation of Obligor with or
into another entity where Obligor is not the survivor; (e) the insolvency of,
the business failure of, the appointment of a custodian, trustee, liquidator or
receiver for or for any of the property of, the assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against Obligor, (f) the
determination by Bank that any material representation or warranty made to Bank
by Obligor in any Loan Documents or otherwise is or was, when it was made,
untrue in any material respect or materially misleading; (g) the failure of
Obligor to timely deliver such financial statements, including tax returns,
other statements of condition or other information, as Bank shall request from
time to time; (h) the entry of a judgment against Obligor in excess of
$500,000.00; (i) the seizure or forfeiture of, or the issuance of any writ of
possession, garnishment or attachment, or any turnover order for any property of
Obligor in excess of $100,000.00; (j) the determination by Bank that a material
adverse change has occurred in the financial condition of Obligor; or (k) the
failure of Borrower's business to comply in any material respect with any law or
regulation controlling its operation.
12. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding hereunder shall, at the option of Bank, become
immediately due and payable and any obligation of Bank to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of interest on the unpaid principal shall
be increased at Bank's discretion up to the maximum rate allowed by law (the
"Default Rate"). The provisions herein for a Default Rate shall not be deemed to
extend the time for any payment hereunder or to constitute a "grace period"
giving Obligor a right to cure any default. At Bank's option, any accrued and
unpaid interest, fees or charges may, for purposes of computing and accruing
interest on a daily basis after the due date of the Note or any installment
thereof, be deemed to be a part of the principal balance, and interest shall
accrue on a daily compounded basis after such date at the Default Rate provided
in this Note until the entire outstanding balance of principal and interest is
paid in full. Upon a default under this Note, Bank is hereby
436408.04 Promissory Note
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Florida [Commercial] 5
authorized at any time, at its option and without notice or demand, to set off
and charge against any deposit accounts of any Obligor (as well as any money,
instruments, securities, documents, chattel paper, credits, claims, demands,
income and any other property, rights and interests of any Obligor), which at
any time shall come into the possession or custody or under the control of Bank
or any of its agents, affiliates or correspondents, any and all obligations due
hereunder. Additionally, Bank shall have all rights and remedies available under
each of the Loan Documents, as well as all rights and remedies available at law
or in equity. Any judgment rendered on this Note shall bear interest at the
highest rate of interest permitted pursuant to Chapter 687, Florida Statutes.
13. NON-WAIVER. The failure at any time of Bank to exercise any of its options
or any other rights hereunder shall not constitute a waiver thereof, nor shall
it be a bar to the exercise of any of its options or rights at a later date. All
rights and remedies of Bank shall be cumulative and may be pursued singly,
successively or together, at the option of Bank. The acceptance by Bank of any
partial payment shall not constitute a waiver of any default or of any of Bank's
rights under this Note. No waiver of any of its rights hereunder, and no
modification or amendment of this Note, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; each such
waiver shall apply only with respect to the specific instance involved, and
shall in no way impair the rights of Bank or the obligations of Obligor to Bank
in any other respect at any other time.
14. APPLICABLE LAW, VENUE AND JURISDICTION. This Note and the rights and
obligations of Borrower and Bank shall be governed by and interpreted in
accordance with the law of the State of Florida. In any litigation in connection
with or to enforce this Note, Obligor irrevocably consents to and confers
personal jurisdiction on the courts of the State of Florida or the United States
located within the State of Florida and expressly waive any objections as to
venue in any such courts. Nothing contained herein shall, however, prevent Bank
from bringing any action or exercising any rights within any other state or
jurisdiction or from obtaining personal jurisdiction by any other means
available under applicable law. The interest rate charged on this Note is
authorized by Chapter 655, Florida Statutes and Section 687.12, Florida
Statutes.
15. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other provision
herein and the invalidity or unenforceability of any provision of this Note or
of the Loan Documents to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances.
16. BINDING EFFECT. This Note shall be binding upon and inure to the benefit of
Borrower and Bank and their respective successors, assigns, heirs and personal
representatives, provided, however, that no obligations of Borrower hereunder
can be assigned without prior written consent of Bank.
17. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is in
any way incompatible with any other document related specifically to the loan
evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall
control to the extent that it deals most specifically with an issue.
18. SECURITY. This Note is secured by a certain Amended and Restated Loan
Agreement dated as of November 4, 1999 by Borrower and Bank, as amended by
Amendment Agreement No. 1 dated as of August 25, 2001, which instrument (as
amended to date and as further amended, modified or supplemented, the "Loan
Agreement"), together with the other loan documents executed in connection with
the Note are sometimes herein collectively referred to as the "Loan Documents".
436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial] 6
19. REPLACEMENT. This Note replaces and supersedes that certain Third Renewal
and Replacement Revolving Promissory Note executed by Borrower in favor of Bank
dated as of November 4, 1999 in the original principal amount of $20,000,000.00,
and that certain Second Renewal and Replacement Revolving Promissory Note
executed by Borrower in favor of Xxxxxxx Bank, N.A. dated November 24, 1997 in
the original principal amount of $15,000,000.00 and that certain First Renewal
and Replacement Revolving Promissory Note executed by Borrower in favor of
Xxxxxxx Bank, N.A., dated March 7, 1997, in the original principal amount of
$5,000,000.00.
20. COMPLIANCE AGREEMENT. For and in consideration of the funding or renewal of
this loan by Bank, the Borrower hereby agrees to cooperate or re-execute any and
all loan documentation deemed necessary or desirable in Bank's discretion, in
order to correct or to adjust for any clerical errors or omissions contained in
any document executed in connection with this loan.
21. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, 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 J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("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 INSTRUMENT, AGREEMENT OR DOCUMENT 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 THE COUNTY OF BORROWER'S
DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT,
OR IF THERE IS REAL PROPERTY COLLATERAL, IN THE COUNTY WHERE SUCH REAL OR
PERSONAL PROPERTY IS LOCATED, AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION 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 ARBITRATION PROVISION SHALL BE DEEMED
TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY 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 BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO)
436408.04 Promissory Note
Bank of America, N.A. 8/01
Florida [Commercial] 7
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. BANK MAY 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 INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER
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.
Borrower represents to Bank that the proceeds of this loan are to be used
primarily for business, commercial or agricultural purposes. Borrower
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTION DATE: Effective as of August 31, 2001.
COAST DENTAL SERVICES, INC.,
a Delaware Corporation
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx, Chief Financial Officer
(Corporate Seal)
STATE OF GEORGIA
COUNTY OF XXXXXX
THE FOREGOING INSTRUMENT WAS ACKNOWLEDGED BEFORE ME THIS 31TH DAY OF
AUGUST 2001, BY XXXXXXX XXXXX, AS CHIEF FINANCIAL OFFICER OF COAST DENTAL
SERVICES, INC., A DELAWARE CORPORATION, ON BEHALF OF THE CORPORATION. HE IS
PERSONALLY KNOWN TO ME OR HAS PRODUCED FL LICENSE AS IDENTIFICATION.
Xxxxx Xxxxxx
--------------------------------------------
Notary Public
Xxxxx Xxxxxx
--------------------------------------------
(Type, Stamp or Print Name)
My commission expires:
Notary Public, Xxxxxx County, Georgia
My Commission Expires July 11, 2003
436408.04 Promissory Note
Bank of America, N.A.
