FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.49

THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Fifth Amendment"), executed this 30^th day of April, 2007, is by and between BIRNER DENTAL MANAGEMENT SERVICES, INC., a Colorado corporation ("Borrower"), and KEYBANK NATIONAL ASSOCIATION, a national banking association ("Lender").

 

 

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.

 

 

 

 

[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:

BIRNER DENTAL MANAGEMENT SERVICES, INC., a Colorado corporation

By: /s/ Dennis N. Genty   

      Dennis Genty, Chief Financial Officer

LENDER:

KEYBANK NATIONAL ASSOCIATION,  a national banking association

By: /s/ Joseph Nimmons  

     Joseph Nimmons, Vice President