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EXHIBIT 10.32
THIRD AMENDMENT TO LOAN DOCUMENTS
THIS THIRD AMENDMENT TO LOAN DOCUMENTS (this "Amendment"), made as of
the 30th day of September 1998, is between BIRNER DENTAL MANAGEMENT SERVICES,
INC., a Colorado corporation ("Borrower") and KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Lender").
R E C I T A L S:
1. 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 stated principal amount of
$800,000.00 executed by Borrower and payable to the order of Lender, and (2) a
Guaranty (the "Guaranty") dated as of October 31, 1996, executed by Fred
Birner, Mark Birner and Dennis Genty (collectively, the "Guarantors") securing
payment of the Note, and (3) 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 (4) by a Credit Agreement (the "Credit
Agreement") dated as of October 31, 1996 between Borrower and Lender, and (5)
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 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.
2. Lender also made a loan to Borrower in the principal amount of Two
Million and No/100 Dollars ($2,000,000.00) (the "Term Loan"), as evidenced by
that certain Promissory Note dated September 3, 1997 (the "Term Note") executed
and delivered to Lender by Borrower, together with that certain First Amendment
to Loan Documents dated September 3, 1997 (the "First Amendment") amending the
terms and conditions of the Loan Documents to incorporate the Term Loan. The
Term Loan has been paid in full and the Term Note canceled pursuant to the
Second Amendment.
3. Borrower and Lender desire to further amend the terms and
conditions contained in the Credit Agreement, Security Agreement, and other
Loan Documents to modify the Borrowing Base from which the outstanding balance
of the Revolving Loan is calculated.
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:
1. The following definition set forth in Article I of the
Credit Agreement shall be revised as follows:
"BORROWING BASE" means, at any applicable date of determination, three
(3) times Consolidated EBITDA of the Borrower for the previous twelve (12)
month period.
b. Section 5.4(d) of the Credit Agreement shall be deleted in
its entirety and replaced with the following:
"(d) Within forty (40) days after the end of each month, the
Borrower shall deliver to Lender (x) a borrowing base certificate in the form
of Exhibit D hereto (the "Borrowing Base Certificate") detailing the Borrower's
Consolidated EBITDA as of the last day of such month, and (y) an Acquired
Practice Obligation report, detailing any Acquired Practice Obligations
incurred in the previous month, each of which 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. If the Borrower fails to deliver any such Borrowing Base
Certificate within forty-five (45) days after the end of such month, then the
Borrowing Base shall be deemed to be $0 until such time as the Borrower
delivers such required Borrowing Base Certificate."
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c. The Borrowing Base Certificate referred to in Section
5.4(d) of the Credit Agreement and attached thereto as Exhibit D shall be
replaced in its entirety with the Borrowing Base Certificate attached hereto as
Exhibit D.
d. Section 6.14 of the Credit Agreement with respect to
Consolidated Acquisition Expenditures shall be deleted in its entirety.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns.
8. 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.
9. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
LENDER:
KEYBANK NATIONAL ASSOCIATION
By: 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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