AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
Execution Copy
This AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”)
is made and entered into as of the 11 day of December, 2008, by and among NATIONAL DENTEX
CORPORATION, a Massachusetts corporation (“Dentex”), its Subsidiaries listed on the
signature page(s) hereof (together with Dentex, collectively the “Borrowers”), and BANK OF
AMERICA, N.A. (the “Bank”). Capitalized terms used herein without definition shall have
the meaning ascribed to them in the Loan Agreement (as defined below).
WHEREAS, the Borrowers and the Bank are parties to that certain Second Amended and Restated
Loan Agreement dated as of November 7, 2006, as amended by that certain Loan Modification Agreement
dated as of March 29, 2007, that certain Amendment to Second Amended and Restated Loan Agreement
dated as of October 24, 2007, that certain Amendment No. 2 to Second Amended and Restated Loan
Agreement dated as of May 9, 2008, and that certain Consent and Amendment No. 3 to Second Amended
and Restated Loan Agreement dated as of September 2, 2008 (collectively, as the same may be hereby
and further amended and in effect from time to time, the “Loan Agreement”), pursuant to
which the Bank has extended credit to the Borrowers on the terms set forth therein;
WHEREAS, the Borrowers have requested the Bank to modify the Loan Agreement in certain
respects and to extend the Revolving Line of Credit Termination Date;
WHEREAS, the Bank is willing to modify the Loan Agreement and the Revolving Line of Credit
Note by extending the Revolving Line of Credit Termination Date and in certain other respects as
requested, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment to Section 2(c)(i) of the Loan Agreement. Section 2(c)(i) of the Loan
Agreement is hereby amended by deleting the reference to “1/8 of 1%” in the first line thereof and
replacing it with “1/2 of 1%”.
2. Amendment to Section 4(c) of the Loan Agreement. Section 4(c) of the Loan
Agreement is hereby amended by deleting the table set forth in such Section in its entirety and
replacing it with the following:
| “Ratio of Consolidated | ||||||||||||||||||
| Total Funded Debt to | Prime Rate | LIBOR Rate | Cost of Funds | |||||||||||||||
| Consolidated EBITDA | Loans | Loans | Rate Loans | |||||||||||||||
Greater than or equal to 2.5:1.0 |
0% | 3.50% | 3.50% | |||||||||||||||
Greater than or equal to 2.25:1.0 but less than 2.5:1.0 |
0% | 3.25% | 3.25% | |||||||||||||||
Greater than or equal to 2.0:1.0 but less than 2.25:1.0 |
0% | 3.00% | 3.00% | |||||||||||||||
Greater than or equal to 1.75:1.0 but less than 2.0:1.0 |
0% | 2.75% | 2.75% | |||||||||||||||
Less than 1.75:1.0 |
0% | 2.50% | 2.50% | ” | ||||||||||||||
3. Amendment to Section 4(p) of the Loan Agreement. Section 4(p) of the Loan
Agreement is hereby amended by deleting the table set forth in such Section in its entirety and
replacing it with the following:
“(p) The term “Fixed Charge Coverage Ratio” shall mean as of the end of any
fiscal quarter of the Borrowers the ratio of (i) Consolidated Adjusted EBITDA for the
period of four consecutive fiscal quarters ending with such fiscal quarter, determined in
accordance with GAAP, to (ii) the sum of (A) the aggregate amount of principal payments of
Indebtedness of the Borrowers or any of their subsidiaries scheduled to have been made
during such period plus (B) the aggregate amount of interest expense of the
Borrowers or any of their subsidiaries for such period.”
4. Amendment to Section 4(dd) of the Loan Agreement. Section 4(dd) of the Loan
Agreement is hereby amended by deleting the reference to “November 7, 2009” in the second line
thereof and replacing it with “November 7, 2011”.
5. Amendment to Section 4(kk) of the Loan Agreement. Section 4(kk) of the Loan
Agreement is hereby amended by deleting such Section in its entirety and replacing it with the
following:
“(kk) The term “Prime Rate” shall mean, for any day, a fluctuating
rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%,
(b) the rate of interest in effect for such day as publicly announced from time to
time by the Bank as its “prime rate”, and (c) the LIBOR Lending Rate for an
Interest Period of 1-month beginning on such day plus 100 basis points. The “prime
rate” is a rate set by the Bank based upon various factors including the Bank’s
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate announced by the Bank shall
take effect at the opening of business on the day specified in the public
announcement of such change.”
-2-
6. Amendment to Section 4 of the Loan Agreement. Section 4 of the Loan Agreement is
hereby amended by inserting the following new clause (rr) at the end thereof:
“(rr) The term “Federal Funds Rate” shall mean, for any day, the rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next succeeding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the average
rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
the Bank on such day on such transactions as determined by the Bank.”
7. Amendment to Section 6(u) of the Loan Agreement. Section 6(u) of the Loan
Agreement is hereby amended by deleting such Section in its entirety and replacing it with the
following:
“(u) Maximum Consolidated Total Funded Debt to Consolidated EBITDA.
As of the end of any fiscal quarter, the ratio of (a) Consolidated Total Funded
Debt as of such date to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters ending on the date of such calculation (i) prior to
and including March 30, 2009, shall not exceed 2.75:1.0; (ii) prior to and
including June 30, 2009, shall not exceed 2.50:1.0; (iii) prior to and including
September 30, 2009, shall not exceed 2.25:1.0; and (iv) thereafter shall not
exceed 2.0:1.0.”
8. Amendment to Revolving Line of Credit Note. The fifth paragraph of the Revolving
Line of Credit Note is hereby amended by deleting the reference to “November 7, 2009” in the first
line thereof and replacing it with “November 7, 2011”.
9. Effective Dates and Conditions to Effectiveness. The amendments contained herein
shall be effective as of the date hereof upon the receipt by the Bank of (i) a counterpart
signature page to this Amendment duly executed and delivered by each of the Borrowers; (ii) a
certificate, certified by a duly authorized officer of each Borrower to be true and complete as of
the date hereof, (a) attaching a copy of records of all corporate action taken by such Borrower to
authorize its execution and delivery of this Amendment, and the performance of all of its
agreements and obligations hereunder, (b) certifying that its charter and bylaws have not been
amended since last delivered to the Bank, and (c) certifying as to its good standing in
-3-
its jurisdiction of incorporation or organization; and (iii) a fee in the amount of $125,000
in respect of the Bank’s modification of the credit facilities contained in the Loan Agreement and
extension of the Revolving Line of Credit Termination Date, in each case as set forth herein.
10. Representations and Warranties. Each of the Borrowers represents and warrants as
follows:
(a) The execution and delivery of this Amendment and the performance of each of this Amendment
and the Loan Agreement, as amended as of the date hereof, are within the corporate power and
authority of such Borrower and have been or will be authorized by proper corporate proceedings, and
do not (i) require any consent or approval of the stockholders of such Borrower, (ii) contravene
any provision of the charter documents or by-laws of such Borrower or any law, rule or regulation
applicable to such Borrower, or (iii) contravene any provision of, or constitute an event of
default or event which, but for the requirement that time elapse or notice be given, or both, would
constitute an event of default under, any other material agreement, instrument or undertaking
binding on such Borrower.
(b) This Amendment and the Loan Agreement, as amended as of the date hereof, and all of the
terms and provisions hereof and thereof are the legal, valid and binding obligations of such
Borrower enforceable in accordance with their respective terms except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights
generally, and except as the remedy of specific performance or of injunctive relief is subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) Except with respect to filings with the U.S. Securities and Exchange Commission, the
execution, delivery and performance of this Amendment, as of the date hereof, do not require any
approval or consent of, or filing or registration with, any governmental or other agency or
authority, or any other party.
(d) Except as set forth on Schedule I hereto, each of the representations and
warranties of the Borrowers contained in the Loan Agreement (after giving effect to this Amendment)
or in any document or instrument delivered pursuant to or in connection with the Loan Agreement are
true and correct in all material respects as of the date hereof with the same effect as if made on
and as of the date hereof (except to the extent of changes resulting from transactions contemplated
or permitted by the Loan Agreement and changes occurring in the ordinary course of business which
singly or in the aggregate do not create a Material Adverse Effect, and to the extent that such
representations and warranties relate expressly to an earlier date).
(e) After giving effect to this Amendment, no Default or Event of Default under the Loan
Agreement has occurred and is continuing.
-4-
11. Ratification, etc. Except as expressly amended hereby, the Loan Agreement, the
other Loan Documents and all documents, instruments and agreements related thereto are hereby
ratified and confirmed in all respects and shall continue in full force and effect. Each Borrower
hereby affirms all of its obligations under the Loan Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and unconditional promise to pay
to the Bank the Loans and all other amounts due under the Loan Agreement (as amended hereby) and
the other Loan Documents. This Amendment and the Loan Agreement shall hereafter be read and
construed together as a single document, and all references in the Loan Agreement or any related
agreement or instrument to the Loan Agreement shall hereafter refer to the Loan Agreement as
amended by this Amendment.
12. Governing Law. This Amendment and the rights and obligations of the parties
hereunder shall be deemed to be a document executed under seal and shall be construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts (excluding the laws
applicable to conflicts or choice of law).
13. Delivery By Facsimile Or Other Electronic Transmission. This Amendment, to the
extent signed and delivered by means of a facsimile machine or other electronic transmission in
which the actual signature is evident, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal effect as if it were
the original signed version thereof delivered in person. At the request of any party hereto, each
other party hereto or thereto shall re-execute original forms hereof and deliver them to all other
parties. No party hereto shall raise the use of a facsimile machine or other electronic
transmission in which the actual signature is evident to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile
machine or other electronic transmission in which the actual signature is evident as a defense to
the formation of a contract and each party forever waives such defense.
14. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which counterparts taken together shall be deemed to constitute
one and the same instrument.
[Remainder of page intentionally blank]
-5-
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set
forth above.
| NATIONAL DENTEX CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: | Executive Vice President and Treasurer | |||
| GREEN DENTAL LABORATORIES, INC., |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: | Assistant Treasurer | |||
| XXXXXX GROUP, INCORPORATED |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: | Assistant Treasurer and Assistant Secretary | |||
| XXXXXX LABORATORIES, INCORPORATED — MIDWEST |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | ||||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | ||||
| Title: | Assistant Treasurer and Assistant Secretary | ||||
| XXXXXX LABORATORIES, INC. — SOUTHEAST |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: | Assistant Treasurer and Assistant Secretary | |||
-6-
| BANK OF AMERICA, N.A., as the Bank |
||||
| By: | /s/ Xxxxxxx X. XxxXxxxxx | |||
| Name: | Xxxxxxx X. XxxXxxxxx | |||
| Title: | Vice President | |||
-7-
