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EXHIBIT 10.37
EIGHTH AMENDMENT TO LOAN DOCUMENTS
THIS EIGHTH AMENDMENT TO LOAN DOCUMENTS (this "Eighth Amendment"), made
as of the 29th day of September, 2000, is between BIRNER DENTAL MANAGEMENT
SERVICES, INC., a Colorado corporation ("Borrower") and KEYBANK NATIONAL
ASSOCIATION, a national banking association ("Lender").
RECITALS
A. Lender has made a loan (the "Revolving Loan") to Borrower, which
Revolving Loan is evidenced and/or secured by (i) a Promissory Note (the
"Original Note") dated as of October 31, 1996 in the original principal amount
of $800,000.00 executed by Borrower and payable to the order of Lender, (ii) an
Amended and Restated Promissory Note (the "Amended Note") dated as of December
31, 1998 in the amended principal amount of $20,000,000.00 and (iii) the Second
Amended and Restated Promissory Note (the "Second Amended Note") dated as of
March __, 2000 in the amended principal amount of $10,000,000.00 (the Original
Note, Amended Note and Second Amended Note shall be collectively referred to
herein as the "Note"), (iii) a Security Agreement (the "Security Agreement")
dated as of October 31, 1996 from Borrower for the benefit of Lender also
securing payment of the Note, (iv) a Credit Agreement (the "Credit Agreement")
dated as of October 31, 1996 between Borrower and Lender, and (v) certain other
documents or instruments (the Note, the Security Agreement, the Credit Agreement
and such other documents and instruments, as same may from time to time be
amended or replaced, are sometimes collectively referred to herein as the "Loan
Documents"). The Revolving Loan was modified by (i) a First Amendment to Loan
Documents dated September 3, 1997 (the "First Amendment"), (ii) a Second
Amendment to Loan Documents dated November 18, 1997 (the "Second Amendment"),
(iii) a Third Amendment to Loan Documents dated September 30, 1998 (the "Third
Amendment"), (iv) a Fourth Amendment to Loan Documents dated December 31, 1998
(the "Fourth Amendment"), (v) a Fifth Amendment to Loan Documents dated May 28,
1999 (the "Fifth Amendment"), (vi) a Sixth Amendment to Loan Documents dated
September 20, 1999 (the "Sixth Amendment") and (vii) a Seventh Amendment to Loan
Documents dated March 24, 2000 (the "Seventh Amendment"). The Credit Agreement,
First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth
Amendment, Sixth Amendment and Seventh Amendment shall be collectively referred
to herein as the "Amendment."
B. Borrower and Lender desire to further amend the Credit Agreement,
Security Agreement, Note and other Loan Documents under the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto hereby covenant and agree as
follows:
1. CREDIT AGREEMENT AMENDMENTS. The Credit Agreement is hereby amended
as follows:
(a) The following definition set forth in Article I of the Credit
Agreement shall be amended to read in its entirety as follows:
"MATURITY DATE" shall mean April 30, 2002.
(b) A new section 6.16 shall be added as a negative covenant to
Section VI of the Credit Agreement as follows:
Section 6.16 Capital Expenditures. Borrower's annual capital
expenditures in any fiscal year, beginning with fiscal year 2001,
shall not exceed $1,500,000.
(c) Section 5.4(h) of the Credit Agreement shall be deleted and
replaced in its entirety as follows:
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(h) within 60 days after the end of each fiscal quarter of
each fiscal year and within 120 days after the end of each fiscal
year, the Borrower shall deliver to Lender a covenant compliance
certificate in form acceptable to Lender (the "Covenant Compliance
Certificate"), confirming that Borrower is in compliance with all
financial covenants to which it is subject under the terms of this
Agreement and which Covenant Compliance Certificate shall be
certified as complete and correct on behalf of the Borrower by the
chief executive officer, chief financial officer, controller or
other Authorized Officer of the Borrower, respectively. In
addition, each Covenant Compliance Certificate shall have attached
to it such calculations necessary to support the financial
covenants certified to therein by Borrower.
(d) The "ADJUSTED LIBOR RATE" and "BASE RATE" as defined in
Article I of the Credit Agreement and the "FACILITY FEE" as defined in Section
2.5(a) of the Credit Agreement, each of which was most recently amended in the
Seventh Amendment, are based on the ratio of Consolidated Senior Debt to
Consolidated EBITDA, which applicable rates and fee shall adjust on a quarterly
basis pursuant to the applicable percentages set forth in the Seventh Amendment,
beginning on the first day of each fiscal quarter and based upon the Senior
Debt/EBITDA ratio calculation, as set forth in the most recent quarterly
Covenant Compliance Certificate submitted to and received by Lender (pursuant to
Section 5.4(h) of the Credit Agreement) prior to such date. For example, for the
fiscal quarter beginning on January 1, the applicable LIBOR Rate Margin, Base
Rate Margin and Facility Fee shall be determined based on the Consolidated
Senior Debt to Consolidated EBITDA ratio set forth in the most recent Covenant
Compliance Certificate submitted to Lender by Borrower prior to January 1. As of
the first day of each fiscal quarter, the LIBOR Rate Margin, Base Rate Margin
and Facility Fee shall be adjusted in accordance with the percentages indicated
in the Seventh Amendment corresponding to the Senior Debt/EBITDA ratio
calculated and set forth in the Covenant Compliance Certificate as set forth
above. Any such adjustment to the foregoing rates and fee shall only remain
effective until the earlier of the first day of the next fiscal quarter or the
date on which an Event of Default shall occur.
(e) A new subsection (m) shall be added as an Event of Default
under Article VII of the Credit Agreement as follows:
(m) Mark Birner has his license to practice dentistry revoked
or suspended in any manner during the term of the Loan.
2. PAYMENT OF COSTS AND FEES; CONDITIONS PRECEDENT TO DISBURSEMENT.
Notwithstanding anything to the contrary set forth herein, the terms of this
Eighth Amendment shall not be effective until the following shall have occurred:
(a) Borrower shall have paid to Lender a renewal fee in the amount
of $12,500;
(b) Borrower shall have paid all costs and expenses of the Lender
incurred in connection with this Amendment, including all legal fees of Lender's
counsel relating to this Amendment.
3. OTHER LOAN DOCUMENT AMENDMENTS. Each of the other Loan Documents are
amended to reflect and to incorporate the amendment to the Credit Agreement as
set forth above.
4. DOCUMENT RATIFICATION. Except as set forth in Paragraphs 1, 2 and 3
above, all of the terms and conditions contained in the Credit Agreement, the
Security Agreement and other Loan Documents shall remain the same and in full
force and effect, and are ratified, reaffirmed and republished as of the date
hereof.
5. REPRESENTATION OF BORROWER. Borrower hereby confirms that, as of the
date hereof, (i) Borrower is in compliance with each of the representations,
warranties and covenants of Borrower set forth in the Loan Documents, (ii) no
Event of Default exists under the Loan Documents and (iii) no fact or condition
exists, which with the passage of time and/or giving of notice, would constitute
an Event of Default under the Loan Documents.
6. ACKNOWLEDGMENT OF PARTIES. Borrower and Lender acknowledge and agree
that as of the date hereof, there are no known claims or defaults by either
party against the other, nor are there any existing covenant violations arising
from or under the Credit Agreement.
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7. CONTROLLING LAW. The terms and provisions of this Eighth Amendment
shall be construed in accordance with and governed by the laws of the State of
Colorado.
8. BINDING EFFECT. This Eighth Amendment shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns.
9. CAPTIONS. The paragraph captions utilized herein are in no way
intended to interpret or limit the terms and conditions hereof, rather, they are
intended for purposes of convenience only.
10. COUNTERPARTS. This Eighth Amendment may be executed in any number
of counterparts, each of which shall be effective only upon delivery and
thereafter shall be deemed an original, and all of which shall be taken to be
one and the same instrument, for the same effect as if all parties hereto had
signed the same signature page. Any signature page of this Eighth Amendment may
be detached from any counterpart of this Eighth Amendment without impairing the
legal effect of any signatures thereon and may be attached to another
counterpart of this Eighth Amendment identical in form hereto but having
attached to it one or more additional signature pages.
IN WITNESS WHEREOF, the parties hereto have executed this Eighth
Amendment as of the day and year first above written.
LENDER:
KEYBANK NATIONAL ASSOCIATION
By: /s/ Michelle K. Bushey
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Name: Michelle K. Bushey
Title: Vice President
BORROWER:
BIRNER DENTAL MANAGEMENT SERVICES, INC.,
a Colorado corporation
By: /s/ Dennis Genty
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Name: Dennis Genty
Title: Chief Financial Officer