1
EXHIBIT 10.33
FOURTH AMENDMENT TO LOAN DOCUMENTS
THIS FOURTH AMENDMENT TO LOAN DOCUMENTS (this "Amendment"), made as of the 31st
day of December, 1998, is 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:
X. Xxxxxx 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 Xxxxxxxx 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, and (ii) by a Third Amendment to Loan Documents dated
September 30, 1998 (the "Third Amendment").
X. Xxxxxxxx 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 amount of the Revolving Loan shall be increased from
$10,000,000 to $20,000,000.
b. The following definition set forth in Article I of the Credit
Agreement shall be revised as follows:
"MATURITY DATE" shall mean February 11, 2001.
c. The ratio set forth in Section 6.9 of the Credit Agreement
shall be revised to 1.25 to 1.
d. The 180 day reference set forth in Section 5.4(a) of the
Credit Agreement shall be revised to 120 days.
e. Section 6.16 shall be added to Article VI as follows:
f. "Section 6.16. Change in Management. Change the management
positions of or accept a resignation or other termination,
without prior written notification to Lender, of any of the
following officers of Borrower: Xxxxxx Xxxxx, Xxxx Xxxxxx or
Xxxx Xxxxxx."
g. Subsection (z), following subsection (y), shall be added to
Section 5.4(d) as follows:
"and (z) income statements of the Borrower, showing the
financial condition of the Borrower as of the close of such
month, certified by one of its Financial Officers as fairly
presenting the financial condition of the Borrower."
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.
67
2
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. PAYMENT OF COSTS AND FEES; CONDITIONS PRECEDENT TO DISBURSEMENTS.
Notwithstanding anything to the contrary set forth herein, in the Note, the
Credit Agreement, the Security Agreement or the other Loan Documents,
Lender shall not be required to make any further disbursements of proceeds
of the Revolving Loan until the following shall have occurred:
(a) Borrower shall have paid to Lender an Origination Fee in the
amount of $25,000 and shall have paid all closing costs and expenses
of the Lender incurred in connection with this Amendment and all legal
fees of Xxxxxx's counsel relating to this Amendment.
(b) Borrower shall have delivered to Lender borrowing
resolutions confirming the authority of the individual executing this
Amendment on behalf of the Borrower.
(c) Borrower shall have executed and delivered to Lender the
Amended and Restated Promissory Note attached hereto as Exhibit A.
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 Xxxxxx 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.
7. 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.
8. BINDING EFFECT. This 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 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 al 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.
68
3
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/Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
BORROWER:
XXXXXX DENTAL MANAGEMENT SERVICES, INC., a
Colorado corporation
By: /s/Xxxxxx X. Xxxxx
-----------------------------------------
Title: Chief Financial Officer
69
