FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.49
FIFTH
AMENDMENT TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
THIS
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Fifth
Amendment"),
executed this 30th
day of
April, 2007, is by and between XXXXXX
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
A. Borrower
and Lender are parties to a Second Amended and Restated Credit Agreement,
dated
as of August 7, 2003 (the "Credit
Agreement"),
pursuant to which Lender has agreed to make loans up to $7,000,000 to Borrower
on the terms and subject to the conditions set forth therein. The Credit
Agreement was amended by the terms of that certain First Amendment to Second
Amended and Restated Credit Agreement dated May 6, 2004 (the "First
Amendment"),
that
certain Second Amendment to Second Amended and Restated Credit Agreement
dated
April 29, 2005 (the "Second
Amendment"),
that
certain Third Amendment to Second Amended and Restated Credit Agreement dated
April 25, 2006 (the "Third
Amendment")
and
that certain Fourth Amendment to Second Amended and Restated Credit Agreement
dated August 31, 2006 (the "Fourth
Amendment").
B. Borrower
desires to further modify certain terms and conditions of the Credit Agreement,
and Lender is willing to agree to the modifications contained in this Fifth
Amendment, on the terms and conditions set forth herein.
C. Capitalized
terms used in this Fifth Amendment and not defined herein shall have the
meanings assigned to those terms in the Credit Agreement.
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. AMENDMENTS
TO CREDIT AGREEMENT.
The
Credit Agreement is hereby amended as follows:
(i) Extension
of Maturity Date.
The
definition of "Revolving Credit Maturity Date" contained in Section 1.1 of
the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Revolving
Credit Maturity Date"
shall
mean May 31, 2009.
(ii) Reduction
in Interest Rate Margin.
Section
2.6 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"SECTION
2.6 Interest
on Loans. The
Borrower shall pay interest on the unpaid principal amount of each Loan from
the
date such Loan is made until such principal amount shall be paid in full
as
follows:
(a) (i)
With
respect to any LIBOR Rate Loan, at a rate per annum equal to the sum of the
LIBOR Rate effective as of the date such LIBOR Rate Loan was made and the
LIBOR
Rate Margin specified in subpart (a)(iii) below.
(ii)
With
respect to any Base Rate Loan, at a rate per annum equal to the sum of the
Base
Rate and the Base Rate Margin specified in subpart (a)(iii) below, which
rate
shall change when and as the Base Rate changes in accordance with this
Agreement.
(iii)
The
LIBOR Rate Margin or Base Rate Margin, as applicable, shall be equal to the
margin set forth in the table below with respect to Revolving Loans or Term
Loan, as applicable:
|
LIBOR
Rate Margin
|
Base
Rate Margin
|
|
|
Revolving
Loans
|
125
Basis Points
|
0
Basis Points
|
|
Term
Loan
|
150
Basis Points
|
0
Basis Points
|
(b)
The
Borrower shall pay to the Lender accrued interest on the unpaid principal
balance of each Base Rate Loan on either (i) the date such Loan is converted
to
a LIBOR Rate Loan, or (ii) the last day of each month, whichever is earlier.
The
Borrower shall pay to the Lender accrued interest on the unpaid principal
balance of each LIBOR Rate Loan on (i) the date such Loan is converted to
a Base
Rate Loan, or (ii) the last day of the applicable Interest Period."
2. LOAN
DOCUMENT AMENDMENTS.
Each of
the other Loan Documents is hereby amended to conform to the amendments to
the
Credit Agreement as set forth in Paragraph 1.
3. DOCUMENT
RATIFICATION.
Subject
to the amendments set forth in Paragraph 1 above, all of the terms and
conditions contained in the Credit Agreement and the other Loan Documents
shall
remain unmodified and in full force and effect.
4. RELEASE.
The
execution of this Fifth Amendment by Lender does not and shall not constitute
a
waiver of any rights or remedies to which Lender is entitled pursuant to
the
Credit Agreement or the other 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 Credit Agreement or the other Loan Documents. Borrower hereby agrees
that
Lender has fully performed its obligations pursuant to the Credit Agreement
and
the other 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 Credit Agreement or the other Loan Documents
through the date hereof.
5. PAYMENT
OF COSTS AND FEES.
Borrower shall pay all out-of-pocket expenses incurred by Lender in connection
with the preparation of this Fifth Amendment, including, without limitation,
reasonable attorneys' fees.
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 Fifth Amendment.
7. CONTROLLING
LAW.
The
terms and provisions of this Fifth Amendment shall be construed in accordance
with and governed by the laws of the State of Colorado.
8. BINDING
EFFECT.
This
Fifth 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
Fifth 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 Fifth Amendment may be detached from any counterpart
of
this Fifth Amendment without impairing the legal effect of any signatures
thereon and may be attached to another counterpart of this Fifth Amendment
identical in form hereto but having attached to it one or more additional
signature pages.
[Signatures
appear on following page]
[SIGNATURE
PAGE TO FIFTH AMENDMENT TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment as
of the
day and year first above written.
BORROWER:
XXXXXX
DENTAL MANAGEMENT SERVICES, INC., a Colorado corporation
By: /s/
Xxxxxx X. Xxxxx
Xxxxxx
Xxxxx, Chief Financial Officer
LENDER:
KEYBANK
NATIONAL ASSOCIATION, a
national banking association
By: /s/
Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx, Vice President
