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Exhibit 10.34
FIFTH AMENDMENT TO LOAN DOCUMENTS
THIS FIFTH AMENDMENT TO LOAN DOCUMENTS (this "Amendment"), made as of the 28th
day of May 1999 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 (1) a Promissory Note (the "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, (2) by
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, and (3) by a Credit Agreement (the "Credit Agreement") dated as of
October 31, 1996 between Borrower and Lender, and (4) by 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
Second Amendment to Loan Documents dated November 18, 1997 (the "Second
Amendment") amending the terms and conditions of the Credit Agreement,
Security Agreement and other Loan Documents to increase the amount of the
Revolving Loan to $10,000,000, (ii) by a Third Amendment to Loan Documents
dated September 30, 1998 (the "Third Amendment"), and (iii) by a Fourth
Amendment to Loan Documents dated December 31, 1998 (the "Fourth
Amendment") to increase the amount of the Revolving Loan to $20,000,000.
A. Borrower and Lender desire to further amend the Credit Agreement, Security
Agreement, 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 amended as follows:
a. The following definition set forth in Article I of the Credit
Agreement shall be revised as follows:
"BASE RATE" shall mean, for any day, a rate per annum (rounded upwards if
necessary, to the next 1/16 of 1%) equal to the Prime Rate in effect on such
day. For purposes hereof, "Prime Rate" shall mean the rate of interest per annum
announced from time to time by the Lender as its prime rate in effect at its
principal office in Cleveland, Ohio; each change in the Prime Rate shall be
effective on the date such change is announced. The Prime Rate may not be
publicly announced or published and does not necessarily represent the lowest or
best rate at which Lender will extend credit.
1. 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.
1. DOCUMENT RATIFICATION. Except as set forth in Paragraphs 1 and 2 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 Closing
Date.
1. 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 and
(ii) 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.
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1. 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.
1. CONTROLLING LAW. The terms and provisions of this Amendment shall be
construed in accordance with and governed by the laws of the State of
Colorado.
1. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns.
1. 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.
1. COUNTERPARTS. This 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 Amendment may be detached
from any counterpart of this Amendment without impairing the legal effect
of any signatures thereon and may be attached to another counterpart of
this 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 Amendment as of
the day and year first above written.
LENDER:
KEYBANK NATIONAL ASSOCIATION
By: /s/ Michelle Bushey
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Title: Vice President
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BORROWER:
BIRNER DENTAL MANAGEMENT SERVICES, INC.,
a Colorado corporation
By: /s/ Dennis N. Genty
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Title: Chief Financial Officer
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