Exhibit 10.40
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment"), executed this 9th day of September 2002, is by and among
BIRNER DENTAL MANAGEMENT SERVICES, INC., a Colorado corporation (the
"Borrower"), and KEYBANK NATIONAL ASSOCIATION, a national banking association
(the "Lender").
R E C I T A L S:
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A. On October 31, 1996, Borrower and Lender entered into that certain
Credit Agreement, as amended (the "Credit Agreement") pursuant to which Lender
agreed to make available to Borrower a revolving credit facility, in an amended
amount not to exceed $20,000,000 upon the terms and conditions set forth in the
Credit Agreement, as amended.
B. On December 17, 2001, Borrower and Lender amended and restated the
terms and conditions of the Credit Agreement pursuant to that certain Amended
and Restated Credit Agreement (the "Amended Credit Agreement"). Borrower and
Lender further amended the Amended Credit Agreement by that certain First
Amendment to Amended and Restated Credit Agreement dated April 30, 2002.
C. Borrower desires to further modify certain terms and conditions of
the Amended Credit Agreement, and Lender is willing to agree to the
modifications contained in this Second Amendment, on the terms and conditions
set forth herein.
D. All references herein to the Loan Documents shall refer collectively
to the Amended Credit Agreement, the Revolving Credit Note, the Term Loan Note,
the Amended and Restated Security Agreement, UCC-1 Financing Statements (all as
defined in the Amended Credit Agreement) and any other instruments or documents
evidencing, securing or relating to the Loans, as amended by the First Amendment
and by this Second Amendment.
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 covenant and agree as follows:
1. AMENDED CREDIT AGREEMENT AMENDMENTS. The Amended Credit Agreement is
hereby amended as follows:
(i) Deletion of Defined Term.The defined term "Base Rate Margin" set
forth in Section 1.1 is hereby deleted in its entirety.
(ii) Modification of Interest on Loans. Section 2.6(a) and (b) are
hereby deleted in its entirety and replaced with the following:
"(a) With respect to any Base Rate Loan, at a rate per annum equal to
the Base Rate, which rate shall change when and as the Base Rate changes in
accordance with this Agreement.
(b) The Borrower shall pay to the Lender accrued interest on the unpaid
principle balance of each Base Rate Loan on the last day of each month."
2. LOAN DOCUMENT AMENDMENTS. Each of the Loan Documents is hereby amended
to conform to the amendments to the Amended Credit Agreement as set
forth in Paragraph 1.
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3. DOCUMENT RATIFICATION. Subject to the amendments set forth in
Paragraph 1 above, all of the terms and conditions contained in the Amended
Credit Agreement and the other Loan Documents, shall remain unmodified and in
full force and effect.
4.RELEASE. Except as specifically set forth herein, the execution of
this Second Amendment by Lender does not and shall not constitute a waiver of
any rights or remedies to which Lender is entitled pursuant to the Loan
Documents, nor shall the same constitute a waiver of any default now existing or
which may occur in the future with respect to the Loan Documents. Borrower
hereby agrees that Lender has fully performed its obligations pursuant to the
Loan Documents through the date hereof and hereby waives, releases and
relinquishes any and all claims whatsoever, known or unknown, that it may have
against Lender with respect to the Loan Documents through the date hereof.
5. PAYMENT OF COSTS AND FEES; CONDITIONS PRECEDENT. Notwithstanding
anything to the contrary set forth herein, the terms and provisions of this
Second Amendment shall not be effective unless and until all of the following
shall have occurred:
(a) Borrower shall have executed and delivered to Lender such other
documents, instruments, resolutions and other items as may be required by
Lender, in form satisfactory to Lender.
(b) Borrower agrees to pay a fee to Lender in the amount of $5,000 with
respect to this Second Amendment, and further agrees to pay Lender all
out-of-pocket expenses incurred by Lender in connection with the preparation of
this Second Amendment, including, without limitation, the costs and expenses of
Lender 's legal fees incurred in connection with this Second Amendment.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower
represents, warrants and covenants to Lender:
(a) No default or event of default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Loan
Documents as modified herein has occurred and is continuing.
(b) There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to Lender in connection with the Loan from the most recent financial
statement received by Lender.
(c) Each and all representations and warranties of Borrower in the Loan
Documents are accurate on the date hereof.
(d) Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents as modified herein.
(e)The Loan Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.
(f) Borrower shall execute, deliver, and provide to Lender such
additional agreements, documents, and instruments as reasonably required by
Lender to effectuate the intent of this First Amendment.
7. CONTROLLING LAW. The terms and provisions of this Second Amendment
shall be construed in accordance with and governed by the laws of the
State of Colorado.
8. BINDING EFFECT. This Second 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.
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10. COUNTERPARTS. This Second 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 Second Amendment may be detached from any counterpart of this
Second Amendment without impairing the legal effect of any signatures
thereon and may be attached to another counterpart of this Second
Amendment identical in form hereto but having attached to it one or
more additional signature pages.
11. DEFINED TERMS. Capitalized terms not defined herein shall have the same
meaning as set forth in the Amended Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the day and year first above written.
BORROWER:
BIRNER DENTAL MANAGEMENT SERVICES, INC.,
a Colorado corporation
By: Dennis N. Genty
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/s/ Dennis N. Genty
Title: Chief Financial Officer
LENDER:
KEYBANK NATIONAL ASSOCIATION,
a national banking association
By: Michelle K. Bushey
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/s/ Michelle K. Bushey
Title: Vice President
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