4
EXHIBIT 10.46
-------------
THIRD AMENDMENT TO
------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
--------------------------------------------
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Third Amendment"), executed this 25th day of April, 2006, is by and between
▇▇▇▇▇▇ 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 $5,000,000 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") and that
certain Second Amendment to Second Amended and Restated Credit Agreement dated
April 29, 2005 (the "Second 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 Third Amendment, on the terms and conditions set forth herein.
C. Capitalized terms used in this Third 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, 2008.
(ii) Increase in Commitment. The definition of "Revolving Loan
Commitment" contained in Section 1.1 of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
"Revolving Loan Commitment" shall mean the commitment of Lender to
make Revolving Loans hereunder up to an amount of $7,000,000 as set forth in
Section 2.1. The reference to "Revolving Loans" in Recital C of the Credit
Agreement shall be amended from $5,000,000 to $7,000,000.
(iii) Revolving Credit Note. The definition of "Revolving Credit Note"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"Revolving Credit Note" shall mean the Third Amended and Restated
Revolving Credit Note of the Borrower evidencing the Revolving Loans.
(iv) Financial Statements, Reports, Etc. Section 5.4(e) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
subsidiary, or compliance with the terms of any Loan Document, as the Lender may
reasonably request.
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 Third 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 Third 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 Third Amendment, including, but not limited to
execution and delivery of the Third Amended and Restated Revolving Credit Note
in the form attached hereto as Exhibit A.
7. CONTROLLING LAW. The terms and provisions of this Third Amendment shall
be construed in accordance with and governed by the laws of the State of
Colorado.
8. BINDING EFFECT. This Third 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 Third 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 Third Amendment may be detached
from any counterpart of this Third Amendment without impairing the legal effect
of any signatures thereon and may be attached to another counterpart of this
Third Amendment identical in form hereto but having attached to it one or more
additional signature pages.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
[SIGNATURE PAGE TO THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the day and year first above written.
BORROWER:
▇▇▇▇▇▇ DENTAL MANAGEMENT SERVICES, INC.,
a Colorado corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Financial Officer
LENDER:
KEYBANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
EXHIBIT A
THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
------------------------------------------------
$7,000,000.00 Denver, Colorado
April 25, 2006
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ DENTAL MANAGEMENT SERVICES,
INC., a Colorado corporation ("Borrower"), whose address is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, promises to pay to the order of
KEYBANK NATIONAL ASSOCIATION ("LENDER"), at its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place as Lender shall designate in
writing), in lawful money of the United States of America, the principal sum of
Seven Million and No/100 Dollars ($7,000,000.00) or so much thereof as may be
advanced by Lender and remain unpaid from time to time, pursuant to the terms of
that certain Second Amended and Restated Credit Agreement dated May 6, 2004 (as
amended) to which the Borrower and Lender are parties (as the same may from time
to time be amended or supplemented, the "Credit Agreement"), together with
interest on said principal sum or such part thereof advanced by Lender, from the
date of each advance made by Lender (an "Advance") until repaid in full, at the
rate and at the times set forth in the Credit Agreement. The loan evidenced by
this Note is a revolving loan, whereby the Borrower may borrow, repay and
reborrow the principal indebtedness evidenced hereby.
1. Credit Agreement. This Note (the "Note") is the Third Amended and
Restated Revolving Credit Note referred to in the Third Amendment to the Second
Amended and Restated Credit Agreement of even date herewith and is entitled to
the benefits thereof. The proceeds of this Note have been advanced for the uses
specified in the Credit Agreement. Capitalized terms used herein, unless
otherwise defined herein, shall have the meanings given them in the Credit
Agreement.
2. Interest and Payments. The outstanding principal balance of this Note
shall bear interest, from the date of each Advance made by Lender until repaid
in full, at the Base Rate as specified in the Credit Agreement, which interest
shall be due and payable, in arrears, as provided in the Credit Agreement. Upon
the Revolving Credit Maturity Date or upon the earlier termination of the
Credit Agreement, the entire outstanding principal balance of this Note,
together with all accrued but unpaid interest thereon and all other sums due
hereunder, shall be due and payable in full. The Borrower shall have the right
to prepay the outstanding principal balance of this Note, together with all
accrued but unpaid interest thereon and all other sums due hereunder, in full or
in part, as set forth in the Credit Agreement. All payments of principal,
interest and any other sums on this Note due from the Borrower to Lender shall
be made to Lender in lawful money of the United States of America in the manner
set forth in the Credit Agreement.
3. Application of Proceeds. All payments hereunder by Borrower shall be
applied by Lender:
First, to the payment of all reimbursable expenses, liabilities and
advances made or incurred by Lender in connection herewith including reasonable
attorneys fees incurred in connection with any enforcement action taken with
respect to this Note;
Second, to the payment of any other amounts due (other than principal and
interest) under this Note or the Credit Agreement;
Third, to the payment of all interest accrued and unpaid on the outstanding
indebtedness; and
Fourth, to the payment of the outstanding principal balance of the
outstanding indebtedness.
4. Default. Time is of the essence hereof. The occurrence of any Event of
Default under the Credit Agreement shall be a default hereunder and, upon the
occurrence of any such default, the payment of all principal, interest and any
other sums due in accordance with the terms of this Note shall, at the option of
Lender, be accelerated and such principal, interest and other sums shall be
immediately due and payable without notice or demand, and Lender shall have the
option to foreclose or to require foreclosure of any or all liens and security
interests securing the payment hereof and/or to exercise any other rights and
remedies available to Lender hereunder or under the Credit Agreement. From and
after an Event of Default, the outstanding principal balance shall accrue
interest at the Default Rate.
5. Governing Law. As additional consideration for the extension of credit,
Borrower understands and agrees that the loan evidenced by this Note is made in
the State of Colorado and the provisions hereof will be construed in accordance
with the laws of the State of Colorado. The parties consent to the personal
jurisdiction of the courts and the venue specified in the Credit Agreement.
6. Maximum Interest. The provisions of this Note are hereby expressly
limited so that in no event whatsoever, whether by reason of demand or
acceleration of the maturity of this Note or otherwise, shall the amount paid,
or agreed to be paid ("Interest"), to Lender for the use, forbearance or
retention of the money loaned hereunder exceed the maximum amount permissible
under applicable law. If, from any circumstance whatsoever, performance or
fulfillment of any provision of this Note shall, at the time of performance or
fulfillment of such provision shall be due, exceed the limit for Interest
prescribed by law, then ipso facto the obligation to be performed or fulfilled
shall be reduced to such limit and if, from any circumstance whatsoever, Lender
shall ever receive anything of value deemed Interest by applicable law in excess
of the maximum lawful amount, an amount equal to any excessive Interest
shall be applied to the reduction of the principal (whether or not then due) or
at the option of Lender be paid over to the Borrower, and not to the payment of
Interest.
7. Miscellaneous Provisions.
(a) The Borrower hereby waives demand for payment, presentment for payment,
protest, notice of protest, notice of dishonor, notice of nonpayment, notice of
acceleration of maturity, diligence in taking any action to collect sums owing
hereunder and all duty or obligation of Lender to effect, protect, perfect,
retain or enforce any security for the payment of this Note or to proceed
against any collateral before otherwise enforcing this Note.
(b) This Note and each payment of principal and interest hereunder shall be
paid when due without deduction or setoff of any kind or nature or for any costs
whatsoever.
(c) The Borrower agrees to reimburse Lender upon demand for all reasonable
out-of-pocket expenses, including, without limitation, reasonable attorneys'
fees and costs, incurred in connection with Lender's collection of payments due
from Borrower hereunder.
(d) The Borrower agrees that Lender may from time to time extend the
maturity of this Note or the time any payment is due under this Note and may
accept further security or release security for the payment of this Note,
without in any way affecting any obligations of the Borrower to Lender.
(e) This Third Amended and Restated Revolving Credit Note restates and
replaces in its entirety the Second Amended and Restated Revolving Credit Note
dated April 29, 2005 in the principal amount of $5,000,000.
IN WITNESS WHEREOF, the Borrower has executed this Note to be effective as
of the day and year first-above written.
▇▇▇▇▇▇ DENTAL MANAGEMENT SERVICES, INC.,
a Colorado corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer