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EXHIBIT 10.26 [EXECUTION]
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment") made as of June 1, 2000 by and among Pentegra Dental Group, Inc., a
Delaware corporation (herein called "Borrower"), and Bank One, Texas, N.A.,
individually and as Agent (herein called "Agent"), and the Lenders, including
Agent, party to the Original Agreement ("Lenders"), defined below.
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain
Credit Agreement dated as of June 1, 1998 (as amended, supplemented, or restated
to the date hereof, the "Original Agreement"), for the purposes and
consideration therein expressed, pursuant to which Lenders became obligated to
make loans to Borrower as therein provided; and
WHEREAS, Borrower and Lenders desire to amend the Original Agreement to
modify certain terms and provisions thereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lender to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this Third Amendment to Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms. (a) The following defined terms in Section
1.1. of the Original Agreement are hereby amended in their entirety to read as
follows:
" 'Commitment' means the amount of $10,100,000, as from
time to time reduced by Borrower pursuant to Section 2.2."
" 'Eurodollar Margin' means:
(i) with respect to Eurodollar Loan 1 for each day
during any Fiscal Quarter on or before September 30, 2000, the
Eurodollar Margin shall be 2.5% per annum;
(ii) with respect to Eurodollar Loan 1 for each day
during any Fiscal Quarter on or after October 1, 2000, the Eurodollar
Margin shall be 3.0% per annum; and
(iii) with respect to Eurodollar Loan 2 for each day
during any Fiscal Quarter, the Eurodollar Margin shall be 4.5% per
annum.
" 'Maturity Date' means July 31, 2001."
" 'Permitted Investments' means Investments in:
(a) marketable obligations, maturing within 12 months
after acquisition thereof, issued or unconditionally guaranteed by the
United States of America or an instrumentality or agency thereof and
entitled to the full faith and credit of the United States of America.
(b) demand deposits, and time deposits (including
certificates of deposit) maturing within 12 months from the date of
deposit thereof, with any office of any Lender or with a domestic
office of any national or state bank or trust company which is
organized under the Laws of the United States of America or any state
therein, which has capital, surplus and undivided profits of at least
$500,000,000, and whose certificates of deposit have at least the third
highest credit rating given by either Rating Agency.
(c) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(a) above entered into with any commercial bank meeting the
specifications of clause (b) above
(d) open market commercial paper, maturing within 270
days after acquisition thereof, which has the highest or second highest
credit rating given by either Rating Agency.
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(e) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types
described in clauses (a) through (d) above.
(f) investments in acquisitions of any Person, provided
that (i) the consideration for any such acquisition shall consist
solely of common stock of Borrower and capital securities of the Person
so acquired, (ii) after giving effect to such acquisition, the Person
so acquired shall not be liable for any Indebtedness, (iii) Borrower
shall neither assume nor in any way become obligated or liable for any
additional Indebtedness relating to or resulting from any such
acquisition, and (iv) Borrower shall neither expend or pay any of
Borrower's Cash and Cash Equivalents in connection with any such
acquisition.
(g) credit extensions permitted by Section 7.8."
" 'Prime Rate' means
(a) with respect to Eurodollar Loan 1, on or before
September 30, 2000, the base commercial rate of interest as announced
from time to time by Agent (which may not be the lowest, best or most
favorable rate of interest which Agent may charge on loans to its
customers), and
(b) with respect to Eurodollar Loan 1, on or after
October 1, 2000, the per annum rate of interest .50% above the base
commercial rate of interest as announced from time to time by Agent
(which may not be the lowest, best or most favorable rate of interest
which Agent may charge on loans to its customers), and
(c) with respect to Eurodollar Loan 2, the per annum
rate of interest 2.00% above the base commercial rate of interest as
announced from time to time by Agent (which may not be the lowest, best
or most favorable rate of interest which Agent may charge on loans to
its customers)."
(b) The following new defined terms are hereby added to
Section 1.1. of the Original Agreement in appropriate
alphabetical order:
" 'Cash and Cash Equivalents' means all of Borrower's
demand deposits and time deposits (including certificates of deposit)
maturing within 12 months from the date of deposit thereof with Bank
One, Arizona, N.A., but excluding any such deposits in the Remittance
Account."
" 'Covenant Period' means a six-month period ending on
March 31 and September 30 of any year."
" 'Dental Practice Advances' means all loans or
advances by Borrower to Dental Practice Groups to provide working
capital for the operations of Dental Practice Groups
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and for other general business purposes, an itemized listing of which
is attached hereto as Schedule 1."
" 'Dental Practice Notes' means all promissory notes executed
by Dental Practice Groups payable to Borrower to evidence their
respective obligations to repay Dental Practice Advances, each note
shall be due and payable in thirty-six (36) equal monthly installments
over a three (3) year period and bear interest at the per annum rate of
ten percent (10%) and may not be renewed, extended, or increased by
Borrower."
" 'Dental Practice Payments' means all payments received by
Borrower in respect of the Dental Practice Notes and all payments
received from Non-Conforming Dental Practice Groups (as defined in
Section 6.18) in respect of Dental Practice Advances."
" 'Eurodollar Loan No. 1' means the Eurodollar Loan in the
principal amount of $8,000,000 bearing interest at a rate of 8.78% per
annum on June 1, 2000 and having an original Interest Period which
began on June 1, 1998, as continued by successive Interest Periods or
converted to a Base Rate Loan."
" 'Eurodollar Loan No. 2' means the Eurodollar Loan in the
principal amount of $2,100,000 bearing interest at a rate of 10.78% per
annum on June 1, 2000 and having an original Interest Period which
began on April 6, 1999, as continued by successive Interest Periods or
converted to a Base Rate Loan."
" 'Quarterly Note Collections' means, for any Fiscal Quarter,
the aggregate amount of Dental Practice Payments deposited in the
Remittance Account and applied by Agent against the Obligations
pursuant to Section 6.18(b)."
" 'Remittance Account' means account number 4848-6521
established at Bank One, Arizona, N.A. in the name of Borrower, which
is a restricted account, from which Borrower may not withdraw funds
except as expressly set forth herein, and which has been pledged to
Agent."
Section 2.2. Commitments to Lend; Notes. The last sentence in Section
2.1 of the Original Agreement is hereby amended in its entirety to read as
follows:
"After June 1, 2000, no new Loans shall be made under this Agreement."
Section 2.3. Scheduled Principal and Interest Payments. Section 2.7 of
the Original Agreement is hereby amended in its entirety to read as follows:
"Section 2.7. Scheduled Principal and Interest Payments. The
principal amount of the Loans shall be due and payable as follows: (i)
$250,000 of the principal amount of Eurodollar Loan 2 shall be due and
payable on or before July 14, 2000, and (ii) the remainder of the
principal amount of the Loans shall be due and payable in quarterly
installments (subject to the proviso at
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the end of this sentence), each of which shall be equal to the lesser
of (a) $50,000 and (b) $350,000 minus the Quarterly Note Collections
and shall be due and payable on the fifteenth day of October, January,
April and July of each year, beginning October 15, 2000 (the "Quarterly
Payments"), and continuing regularly thereafter until the Maturity
Date, on which date all unpaid principal of and accrued interest on the
Loans shall be due and payable; provided that after giving effect to
the payment thereof, no Quarterly Payment shall cause the aggregate
amount of Borrower's Cash and Cash Equivalents as of the last day of
the Fiscal Quarter immediately preceding the date of such Quarterly
Payment to be less than the amount of $750,000. Payments of principal
shall first be applied to Eurodollar Loan 2. In addition to principal
installments described above, interest shall be due and payable
quarterly as it accrues on the last day of each September, December,
March and June of each year, said installments of interest beginning
June 30, 2000. As soon as available, and in any event within five (5)
Business Days after the end of each Fiscal Quarter, Borrower will
deliver to Agent a certificate certifying the amount of Borrower's Cash
and Cash Equivalents as of the end of such Fiscal Quarter, in form,
substance, and detail acceptable to Agent."
Section 2.4. Mandatory Prepayments. Section 2.8(b) of the Original
Agreement is hereby deleted in its entirety.
Section 2.5. Dental Practice Advances. The Original Agreement is hereby
amended to add Section 6.18 thereto immediately following Section 6.17 thereof
to read as follows:
"Section 6.18. Dental Practice Advances.
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(a) Prior to June 1, 2000, Borrower has made Dental Practice
Advances which are not evidenced by promissory notes and which were
accounted for by Borrower as accounts receivable created in the
ordinary course of its business. Borrower agrees to require each Dental
Practice Group to which it has made a Dental Practice Advance to either
(i) pay in full the principal amount plus all accrued interest in
respect of such Dental Practice Advance on or before August 31, 2000 or
(ii) execute and deliver to Borrower a Dental Practice Note
(collectively, the "Repayment Options"). Borrower will use its best
efforts to obtain the agreement of each such Dental Practice Group to
one of the Repayment Options. In the event that any such Dental
Practice Group does not agree to a Repayment Option (a "Non-Conforming
Dental Practice Group"), Borrower will develop a plan to pursue
collection remedies against such Non-Conforming Dental Practice Group
that is reasonably acceptable to Agent. On or before July 30, 2000,
Borrower shall deliver to Agent a certificate signed by the chief
financial officer of Borrower which (i) certifies that Borrower has
required each Dental Practice Group to which Borrower has made a Dental
Practice Advance to agree to a Repayment Option, (ii) attaches a
schedule which lists each Dental Practice Group that has elected to
execute and deliver a Dental Practice Note, and (iii) attaches a
schedule which lists each Non-Conforming Dental Practice Group and the
collection remedies to be pursued by Borrower, all in form, substance
and detail acceptable to Agent. Borrower hereby agrees (i) to hold all
Dental Practice Payments received by it in trust for the benefit of
Agent and to deposit all Dental Practice Payments into the Remittance
Account weekly on the last Business Day of each week and (ii) at the
request of Agent, to direct all Dental Practice Groups to which it has
made a Dental Practice Advance to make all Dental Practice Payments
directly to the Remittance Account. As soon as available, and in any
event within thirty (30) days after the end of each month, Borrower
will deliver to Agent (at Borrower's expense) a certificate (i)
itemizing the current balance of the Dental Practice Notes and all
Dental Practice Payments received in respect thereof during such month,
(ii) providing a current status of the collection efforts relating to
each Non-Conforming Dental Practice Group, and (iii) providing such
other information relating to the Dental Practice Advances as may be
requested by Agent, all in form, substance, and detail acceptable to
Agent.
(b) If no Default or Event of Default has occurred and is
continuing, on the last Business Day of each week, Borrower hereby
irrevocably directs Bank One, Arizona, N.A. to transfer all funds on
deposit in the Remittance Account to Agent, to be applied by Agent as a
payment (or a prepayment, as applicable) of the Obligations in
accordance with Section 3.1. If a Default or Event of Default has
occurred and is continuing, Agent may at any time and from time to time
direct Bank One, Arizona, N.A. to transfer any funds on deposit in the
Remittance Account to Agent, to be applied by Agent as a payment (or a
prepayment, as applicable) of the Obligations in accordance with
Section 3.1, and Borrower hereby irrevocably directs Bank One, Arizona,
N.A. to strictly follow any such directions received from Agent. If a
Default or Event of Default has occurred and is continuing, Agent will
direct the transfer of funds and apply such funds pursuant to the
immediately preceding sentence at least once per week. All principal or
interest
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prepaid pursuant to this section shall be in addition to, and not in
lieu of, all payments otherwise required to be paid under the Loan
Documents at the time of such prepayment.
(c) Borrower hereby agrees to deliver all Dental Practice
Notes to Agent on July 31, 2000, August 31, 2000 and thereafter
promptly upon its receipt thereof in accordance with the requirements
of the Security Documents. All such Dental Practice Notes shall be
delivered in suitable form for transfer by delivery with any necessary
endorsement or shall be accompanied by fully executed instruments of
transfer or assignment in blank, all in form and substance satisfactory
to Agent."
Section 2.6. Indebtedness. Section 7.1 of the Original Agreement is
hereby amended in its entirety to read as follows:
"Section 7.1. Indebtedness. No Restricted Person will in
any manner owe or be liable for Indebtedness except:
(i) the Obligations.
(ii) Subordinated Debt.
(iii) Indebtedness outstanding under the instruments and
agreements described on the Disclosure Schedule, excluding any renewals
or extensions of such Indebtedness.
(iv) purchase money Indebtedness or other acquired or assumed
Indebtedness in connection with Dental Practice Acquisitions
consummated on or before June 1, 2000 in an aggregate principal amount
not to exceed the amount of such Indebtedness outstanding as of June 1,
2000, excluding any renewals or extensions of such Indebtedness."
Section 2.7. Limitation on Investments and New Businesses. Section 7.7
of the Original Agreement is hereby amended in its entirety to read as follows:
"Section 7.7. Limitation on Investments and New
Businesses. No Restricted Person will (i) make any expenditure or
commitment or incur any obligation or enter into or engage in any
transaction except in the ordinary course of business, (ii) engage
directly or indirectly in any business or conduct any operations except
in connection with or incidental to its present businesses and
operations, or (iii) make any acquisitions of or capital contributions
to or other investments in any Person, other than Permitted Investments
and Dental Practice Advances existing as of June 1, 2000 (which Dental
Practice Advances may not be renewed, extended, or increased)."
Section 2.8. Limitation on Investments and New Businesses. Section 7.9
of the Original Agreement is hereby amended in its entirety to read as follows:
"Section 7.9. Transactions with Affiliates. No Restricted
Person will engage in any material transaction with any of its
Affiliates on terms which are less favorable to it
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than those which would have been obtainable at the time in arm's-length
dealing with Persons other than such Affiliates, provided that Borrower
shall not extend credit or make any advances or loans to any
Subsidiary, any Affiliate, or any Dental Practice Group."
Section 2.9. Dental Base. Section 7.11 of the Original Agreement is
hereby deleted in its entirety.
Section 2.10. Continuity of Founding Practices and Affiliated
Practices. Section 7.12 of the Original Agreement is hereby deleted in its
entirety.
Section 2.11. Capital Expenditures. Section 7.13 of the Original
Agreement is hereby deleted in its entirety.
Section 2.12. Current Ratio. Section 7.14 of the Original Agreement is
hereby amended in its entirety to read as follows:
"Section 7.14. Current Ratio. As of the end of each Covenant
Period, the ratio of Borrower's Consolidated current assets to
Borrower's Consolidated current liabilities (excluding any current
liabilities from litigation, the Obligations and any other
non-operational, non-recurring charge), all determined in accordance
with GAAP, shall not be less than 1.0 to 1.0."
Section 2.13. Total Funded Debt to Capitalization Ratio. Section 7.15
of the Original Agreement is hereby deleted in its entirety.
Section 2.14. Total Funded Debt to EBITDA Ratio. Section 7.16 of the
Original Agreement is hereby deleted in its entirety.
Section 2.15. Total Senior Funded Debt to EBITDA Ratio. Section 7.17 of
the Original Agreement is hereby deleted in its entirety.
Section 2.16. Fixed Charge Ratio. Section 7.18 of the Original
Agreement is hereby deleted in its entirety.
Section 2.17. Debt Service Coverage Ratio. Section 7.19 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 7.19. Debt Service Coverage Ratio. As of the end of
each Covenant Period, the ratio of (a) Borrower's EBITDA for the two
consecutive Fiscal Quarters then ended, multiplied by two, to (b)
scheduled principal payments on all other Indebtedness (excluding the
Obligations) due during the next four Fiscal Quarters, shall not be less
than 1.50 to 1.0."
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Section 2.18. Net Worth. Section 7.20 of the Original Agreement is
hereby amended in its entirety to read as follows:
"Section 7.20. Net Worth. Borrower's Consolidated Net Worth
as of the end of each Fiscal Quarter, shall not be less than $0.00;
provided that Borrower's Consolidated Net Worth shall be automatically
increased to reflect non-cash items (including adjustments for
impairment of goodwill, bad debt reserves, accrual adjustments,
depreciation, amortization, or other one-time non-cash items) on
Borrower's Consolidated financial statements."
Section 2.19. Dental Practice Acquisitions & Dental Practice Advances.
Section 7.21 of the Original Agreement is hereby amended in its entirety to read
as follows:
"Section 7.21. Dental Practice Acquisitions & Dental
Practice Advances. Borrower shall not make any Dental Practice
Acquisition or make any Dental Practice Advances from and after June 1,
2000."
Section 2.20. Bank Accounts. The Original Agreement is hereby amended
to add Section 7.22 thereto immediately following Section 7.21 thereof read as
follows:
"Section 7.21. Bank Accounts. Borrower shall not
establish any demand, time, savings, passbook, or similar account or
certificate of deposit at any bank or other depository or financial
institution other than Bank One, Arizona, N.A."
ARTICLE III
Fees and Other Agreements
Section 3.1. No Optional Conversion to Base Rate Loans. After June 1,
2000, Borrower shall not have the option to convert Eurodollar Loan No.1 or
Eurodollar Loan No. 2 to a Base Rate Loan; provided, however, that Eurodollar
Loan No.1 and/or Eurodollar Loan No. 2 may be converted to Base Rate Loans by
Agent pursuant to Sections 3.2 through 3.5.
Section 3.2. Amendment Fee. In consideration of Agent and each Lenders'
agreement to enter into this Amendment, Borrower will pay to Agent for the
account of Lenders an amendment fee in the aggregate amount of $20,000 (the
"Amendment Fee"), which shall be due and payable on the date of effectiveness of
this Amendment.
Section 3.3. Additional Security. Pursuant to Section 6.15 of the
Credit Agreement, Lender hereby requests and Borrower hereby agrees to grant
security interests in additional collateral to further secure the Obligations
and to modify existing Security Documents on or before July 31, 2000, each in
form and substance satisfactory to Agent, in order to effect the following:
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(a) to grant new liens in all of Borrower's inventory and equipment,
including that inventory and equipment used in all Dental Practice Groups, and
in any of Borrower's other personal property;
(b) to grant new liens in all of Borrower's stock or other equity
interests in any Dental Practice Groups;
(c) to modify existing Security Documents to confirm that all right,
title and interest of Borrower in and to all management service agreements and
receivables of the Dental Practice Groups which secure such management service
agreements are covered by the Security Documents;
(d) to obtain security agreements covering the accounts receivable of
each Dental Practice Group acquired as part of a Dental Practice Acquisition,
and assigning each such agreement to Agent for the benefit of Lenders; and
(e) to execute and file all necessary UCC-1 and UCC-3 financing
statements covering all additional collateral above and reflecting Borrower's
name change to e-dentist.com upon the occurrence of such change.
Section 3.4. Waiver of Financial Covenants. In connection with
Borrower's creation of an additional reserve for bad debts totaling $4,200,000,
on Borrower's financial statements as of March 31, 2000 (collectively, the
"Financial Statement Changes"), Agent (on behalf of Lenders) hereby waives any
Default or Event of Default resulting from any violations of Sections 7.14,
7.15, 7.16, 7.17, and 7.19 of the Credit Agreement as of March 31, 2000.
ARTICLE IV.
Conditions of Effectiveness
Section 4.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when:
(a) Agent shall have received all of the following, at Agent's
office, duly executed and delivered and in form and substance satisfactory to
Agent, all of the following:
(i) this Amendment;
(ii) a Consent of Guarantor in the form attached hereto;
(iii) a certificate of the President and Secretary of Borrower
dated the date of this Amendment certifying as to certain
corporate matters and that all of the representations and
warranties set forth in Article IV hereof are true and
correct at and as of the time of such effectiveness;
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(iv) the Amendment Fee described in Section 3.1;
(v) a First Amendment to Security Agreement dated the date of
this Amendment;
(vi) UCC-1 financing statements naming Borrower, as debtor, and
Agent, as secured party, covering the Remittance Account,
to be filed with the Secretary of State of Arizona and the
Secretary of State of Texas;
(vii) an Acknowledgment Agreement among Borrower, Agent, and
Bank One, Arizona, N.A.;
(viii) such other supporting documents as Agent may reasonably
request;
(b) Borrower shall have paid, in connection with such Loan Documents,
all recording, handling, amendment and other fees required to be paid to Agent
pursuant to any Loan Documents; and
(c) Borrower shall have paid, in connection with such Loan Documents,
all other fees and reimbursements to be paid to Agent pursuant to any Loan
Documents, or otherwise due Agent and including fees and disbursements of
Agent's attorneys.
ARTICLE V.
Representations and Warranties
Section 5.1. Representations and Warranties of Borrower. In
order to induce Agent to enter into this Amendment, Borrower represents and
warrants to Agent that:
(a) The representations and warranties contained in
Article V of the Original Agreement, are true and correct at and
as of the time of the effectiveness hereof except to the extent
that the facts upon which such representations are based have
been changed by transactions and events expressly permitted by
the Credit Agreement.
(b) Borrower is duly authorized to execute and
deliver this Amendment and will continue to be duly authorized
to borrow and to perform its obligations under the Credit
Agreement. Borrower has duly taken all corporate action
necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of its obligations
hereunder and thereunder.
(c) The execution and delivery by Borrower of this
Amendment, the performance by Borrower of its obligations
hereunder and the consummation of the transactions contemplated
hereby do not and will not conflict with any provision of law,
statute, rule or any of its organizational documents, or of any
material agreement,
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judgment, license, order or permit applicable to or binding upon
it, or result in the creation of any lien, charge or encumbrance
upon any assets or properties or any of its assets. Except for
those which have been duly obtained, no consent, approval,
authorization or order of any court or governmental authority or
third party is required in connection with the execution and
delivery by Borrower of this Amendment or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, each of this
Amendment and the Credit Agreement will be a legal and binding
obligation of Borrower, enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency and similar
laws applying to creditors' rights generally and by principles
of equity applying to creditors' rights generally.
(e) The audited annual Consolidated financial
statements of Borrower dated as of March 31, 1999 and the
unaudited quarterly Consolidated financial statements of
Borrower dated as of December 31, 1999 fairly present the
Consolidated financial position at such dates and the
Consolidated statement of operations and the changes in
Consolidated financial position for the periods ending on such
dates for Borrower. Copies of such financial statements have
heretofore been delivered to each Lender. Since such dates no
Material Adverse Change has occurred in the financial condition
or businesses or in the Consolidated financial condition or
businesses of Borrower.
(f) Attached hereto as Schedule 1 is a true,
correct, and complete list of each Dental Practice Advance made
by Borrower on or prior to the date hereof which has not been
repaid in full.
ARTICLE VI.
Miscellaneous
Section 6.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. The Loan
Documents, as they may be amended or affected by this Amendment are hereby
ratified and confirmed in all respects. Any reference to the Credit Agreement in
any Loan Document shall be deemed to refer to this Amendment also. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
Agent under the Credit Agreement or any other Loan Document nor constitute a
waiver of any provision of the Credit Agreement or any other Loan Document.
Section 6.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loan, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Guarantor or Borrower hereunder or
under
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the Credit Agreement to Agent shall be deemed to constitute representations and
warranties by, or agreements and covenants of, such Person under this Amendment
and under the Credit Agreement.
Section 6.3. Release of Claims. Borrower hereby releases and forever
discharges Agent, together with its employees, agents, attorneys, officers, and
directors (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter accruing, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date hereof, and in any way
directly or indirectly arising out of or in any way connected to the Original
Agreement, including but not limited to claims of usury (although no such claims
are known to exist) (all of the foregoing hereinafter called the "Released
Matters"). Borrower acknowledges that the agreements in this Section 5.3 are
intended to cover and be in full satisfaction for all or any alleged injuries or
damages arising in connection with the Released Matters herein compromised and
settled.
Section 6.4. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto and
thereto.
Section 6.5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
Section 6.6. Counterparts; fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
THIS AMENDMENT 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 OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
PENTEGRA DENTAL GROUP, INC.
Borrower
By: _________________________________
James M. Powers, Jr.
President & Chief Executive Officer
BANK ONE, TEXAS, N.A.
Agent and Lender
By: _________________________________
Bonnie D. Wilson
Vice President
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SCHEDULE 1
DENTAL PRACTICE ADVANCES
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[THIRD AMENDMENT]
CONSENT AND AGREEMENT
Pentegra Investments, Inc., a Delaware corporation, hereby (i) consents
to the provisions of this Amendment and the transactions contemplated herein and
(ii) ratifies and confirms the Guaranty dated as of June 1, 1998 made by it for
the benefit of Bank One Texas, N.A. and any other Lenders that become parties to
the Credit Agreement ("Guaranty") and (iii) agrees that all of its respective
obligations and covenants thereunder (to the extent it is a party thereto) shall
remain unimpaired by the execution and delivery of the Amendment and the other
documents and instruments executed in connection therewith and that the Guaranty
shall remain in full force and effect.
THIS CONSENT AND 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 OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Consent and Agreement is executed by the
undersigned and is made effective as of June 1, 2000.
PENTEGRA INVESTMENTS, INC.
By: ________________________________
Sam H. Carr
Senior Vice President
