AMENDMENT NO. 4
TO
CREDIT FACILITIES AGREEMENT
(THAT WAS EFFECTIVE MARCH 20, 2001)
BY AND BETWEEN
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT AND A LENDER
AND
THE OTHER LENDERS SIGNATORY THERETO
AND
YOUNG INNOVATIONS, INC.
AS BORROWER
In consideration of their mutual agreements herein and for other sufficient
consideration, the receipt of which is hereby acknowledged, YOUNG INNOVATIONS,
INC. ("Borrower"), BANK OF AMERICA, N.A. (as "Administrative Agent") agree as
follows:
1. DEFINITIONS; SECTION REFERENCES. The term "Original Loan Agreement" means the
Credit Facilities Agreement effective as of March 20, 2001, between Borrower,
Administrative Agent and the Lenders signatory thereto, as amended, including
without limitation, as amended by that certain Amendment No. 1 thereto effective
April 20, 2001, that certain Amendment No. 2 thereto effective September 28,
2001, that certain Amendment No. 3 thereto effective September 19, 2002 and that
certain Master Assignment and Assumption between Administrative Agent, Lenders,
Xxxxxx Trust and Savings Bank and Borrower, of even date herewith that is
effective simultaneously herewith (the "Master Assignment and Assumption"). The
term "this Amendment" means this Amendment. Capitalized terms used and not
otherwise defined herein have the meanings defined in the Original Loan
Agreement, except that the term "this Agreement" in the Original Loan Agreement
shall be deemed to mean the Original Loan Agreement as amended by this
Amendment. Section references are to sections of the Original Loan Agreement
unless otherwise indicated.
2. EFFECTIVE DATE OF THIS AMENDMENT. Provided that Administrative Agent has
received this Amendment fully executed by all parties hereto and each of the
documents and other items listed or described on Exhibit A hereto as being
required to be obtained, delivered or satisfied on or before the Effective Date
(as hereinafter defined), with each being satisfactory to Administrative Agent
and (as applicable) duly executed and (also as applicable) sealed, attested,
acknowledged, certified, or authenticated, this Amendment shall be effective as
of May ___, 2004 (the "Effective Date"), simultaneously with the effectiveness
of the Master Assignment and Assumption. If this Amendment does not become
effective, the Original Loan Agreement shall continue in full force and effect
as it existed in the absence of this Amendment.
3. AMENDMENTS TO ORIGINAL LOAN AGREEMENT. The Original Loan Agreement is amended
as follows, all such amendments to be effective on the Effective Date unless
otherwise indicated:
3.1. REQUIRED LENDERS. Section 2.4 is deleted and replaced with the
following:
2.4. REFERENCES TO REQUIRED LENDERS. The words Required Lenders means
(i) at any time when there are more than two Lenders, any one or more
Lenders whose shares of Lenders' Exposure at the relevant time
aggregate 51%, or (ii) at any time when there are less than three
Lenders, any one or more Lenders whose shares of Lenders' Exposure at
the relevant time aggregate 100%.
3.2. INCREASE IN REVOLVING LOAN COMMITMENT. The amount "$40,000,000" in
Section 3.1.1 is deleted and replaced with the amount "$50,000,000".
3.3. INTEREST RATES. The table in Section 4.5 is deleted and replaced with
the following:
------------------------------------ -------------------- -------------------- ---------------------
IF THE RATIO OF BORROWER'S TOTAL THE EURODOLLAR THE BASE RATE REVOLVING LOAN
FUNDED INDEBTEDNESS TO EBITDA IS: INCREMENT INCREMENT COMMITMENT FEE (PER
SHALL BE: SHALL BE: ANNUM)
------------------------------------ -------------------- -------------------- ---------------------
Greater than or equal to 2.00 to 1 1.50% 0.00% 0.20%
------------------------------------ -------------------- -------------------- ---------------------
Greater than or equal to 1.50 to 1 1.25% 0.00% 0.175%
but less than 2.00 to1
------------------------------------ -------------------- -------------------- ---------------------
Less than 1.50 to 1 1.00% 0.00% 0.15%
------------------------------------ -------------------- -------------------- ---------------------
3.4. EXTENSION OF MATURITY. The date "September 28, 2004", each place it
appears in Section 6.1.2, is deleted and replaced with the date "September
28, 2007".
3.5. GUARANTIES. The phrase "20 Business Days" in Section 8 is hereby
deleted and replaced with the phrase "60 days."
3.6. PRO FORMAS FOR PERMITTED ACQUISITIONS. Section 13.18 is deleted in its
entirety.
3.7. PERMITTED INVESTMENTS. Section 14.1.8 is deleted and replaced with the
following two Sections:
14.1.8. Loans by Young Acquisitions Company and/or Panoramic Rental
Corp to its customers to finance the purchase of panoramic x-ray
equipment from such Person, provided that (i) each such loan is
secured by the equipment financed, (ii) the term of each such loan is
no longer than three years, (iii) the other terms of each such loan,
including the loan amount and interest rate, reflect that such loan
was made on an arm's-length basis, and (iv) the amount of all such
loans made by Young Acquisitions and Panoramic Rental Corp do not at
any one time exceed $10,000,000 in the aggregate.
14.1.9. Notes payable to any Covered Person in payment for the assets
of such Covered Person sold, transferred, exchanged, leased or
otherwise disposed of as permitted herein and Investments of Persons
acquired in a Permitted Acquisition which do not fall within the
Investments listed in Sections 14.1.1 through 14.1.8, to the extent
the aggregate amount of such notes and such Investments does not at
any one time exceed $250,000.
3.8. PERMITTED INDEBTEDNESS - CAPITAL LEASES. The Dollar amount
"$2,000,000", as it appears in Section 14.2.5, is deleted and replaced with
the Dollar amount "$2,500,000".
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3.9. ACQUISITIONS. Section 14.6 is deleted and replaced with the following:
14.6. ACQUISITIONS. Acquire stock or membership interests of, or any
other equity interest in, another Person sufficient for such Person to
become a Subsidiary or Affiliate of a Covered Person or a Joint
Venture, or acquire all or substantially all of the assets of a Person
or acquire a portion of the assets of a Person which constitute an
operating division or operating group of such Person, except for, if
there is no Existing Default and no Default or Event of Default will
occur as a result of thereof, (i) asset acquisitions in the ordinary
course of business that are not otherwise prohibited herein, (ii)
acquisitions not otherwise permitted under this Section as are
approved in writing by, and on terms and conditions satisfactory to,
Required Lenders, and (iii) any acquisition of stock or membership
interests of, or other equity interests in or assets of a Person with
respect to which all of the following requirements have been met (in
each case a Permitted Acquisition):
14.6.1. NON-HOSTILE ACQUISITIONS; SIMILAR BUSINESS LINE. The
acquisition must be non-hostile and must be of assets, or equity
interests in a Person, in the same or similar line of business as
Borrower or in a line of business that is synergistic with, or
reasonably related to, the line of business of Borrower.
14.6.2. INDIVIDUAL ACQUISITION DOLLAR LIMITATION. The total
consideration to be paid in any particular acquisition may not
exceed $17,500,000, unless otherwise approved by the Required
Lenders.
14.6.3. SURVIVING COMPANY BECOMES A GUARANTOR. If upon the
consummation of the acquisition the Surviving Company will not be
a Joint Venture, a Borrower or a Guarantor under this Agreement,
Borrower shall provide notice of that fact to Administrative
Agent no later than the date of the consummation of the
acquisition. In such event, within 60 days after the consummation
of the acquisition, at Administrative Agent's option, the
Surviving Company shall become either (i) a Guarantor hereunder
(by execution of a separate Guaranty or a joinder to an existing
Guaranty which is satisfactory to Administrative Agent and the
Lenders), or (ii) a Borrower hereunder (by execution and delivery
of an amendment to this Agreement and appropriate notes, and
other documents, and instruments which are satisfactory to
Administrative Agent and the Lenders) and, if such Surviving
Company is a Domestic Subsidiary that is a Material Subsidiary,
shall deliver to Administrative Agent and the Lenders all other
documents required by Section 8 for a Domestic Subsidiary that is
a Material Subsidiary acquired, created or organized after the
Execution Date.
14.6.4. SURVIVING COMPANY IS SOLVENT. The Surviving Company will
be Solvent upon consummation of the acquisition and upon the
passage of time thereafter, and none of the covenants in Section
15 will be violated as a consequence of such acquisition or with
the passage of time thereafter.
3.10. DISPOSAL OF PROPERTY. The Dollar amount "$2,500,000", as it appears
in Section 14.11, is deleted and replaced with the Dollar amount
"$5,000,000".
3.11. FINANCIAL COVENANTS. Section 15 of the Loan Agreement is deleted and
replaced with the following:
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15.1. SPECIAL DEFINITIONS. As used in this Section 15.1 and elsewhere
herein, the following capitalized terms have the following meanings:
EBITDA means, with respect to any fiscal period of Borrower, the net
income of Borrower for such fiscal period, as determined in accordance
with GAAP and reported on the Financial Statements for such period,
plus (i) (A) Interest Expense in such period, (B) income tax expense
in such period, (C) depreciation and amortization expense in such
period, and (D) any extraordinary loss in such period, minus (ii) any
extraordinary gain in such period, in each case calculated for
Borrower for such period.
Interest Expense means for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without
duplication, on Indebtedness of Borrower during such period.
Net Worth means net worth as determined in accordance with GAAP.
Total Capitalization means, as of the date of any determination, the
sum of Borrower's Total Funded Indebtedness and Borrower's Net Worth.
Total Funded Indebtedness means, as of any time, the sum of any
contractual obligations to pay borrowed money (including, without
limitation, any such Indebtedness incurred in connection with purchase
money financing) and to make payments or reimbursements with respect
to letters of credit (whether or not there have been drawings
thereunder) at such time including, without limitation, the Aggregate
Revolving Loan and the aggregate dollar amount of Capital Leases
presented in Borrower's most recent Financial Statements as
Liabilities.
All other capitalized terms used in this Section 15 shall have their
meanings and shall be determined under GAAP. All financial
measurements respecting Borrower shall be made and calculated for
Borrower and all of its now existing or later acquired, created or
organized Subsidiaries, if any, on a consolidated basis in accordance
with GAAP.
15.2. MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO EBITDA. The ratio
of Borrower's Total Funded Indebtedness to EBITDA, measured at the end
of each fiscal quarter of Borrower (for the four fiscal quarters then
ended) shall not be greater than 2.50 to 1.00.
15.3 MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO TOTAL
CAPITALIZATION. The ratio of Borrower's Total Funded Indebtedness to
Total Capitalization, measured at the end of each fiscal quarter of
Borrower shall not be greater than 0.50 to 1.00.
15.4. MINIMUM EBITDA. Borrower's EBITDA measured as of the last day of
each fiscal quarter of Borrower ending during each period specified
below (in each case calculated for the four fiscal quarters then
ended) shall not be less than the amount specified for such period
below:
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-------------------------------------------------- -----------------------------------------------
PERIOD MINIMUM EBITDA
-------------------------------------------------- -----------------------------------------------
January 1, 2004 to December 31, 2004 $ 18,500,000
-------------------------------------------------- -----------------------------------------------
January 1, 2005 to December 31, 2005 $ 19,500,000
-------------------------------------------------- -----------------------------------------------
January 1, 2006 to December 31, 2006 $ 20,500,000
-------------------------------------------------- -----------------------------------------------
January 1, 2007 and the last day of each $ 21,500,000
calendar quarter thereafter
-------------------------------------------------- -----------------------------------------------
3.12. The following new Section 13.14.3 is added to the Original Loan
Agreement immediately following Section 13.14.2:
13.14.3. QUARTERLY REPORT OF ACQUISITION ACTIVITY. Quarterly, at the
same time when financial statements of Borrower and its Subsidiaries
are delivered under Section 13.13.2, a summary of the acquisition
activity of Borrower and its Subsidiaries during Borrower's fiscal
quarter most recently ended, specifying in reasonable detail for each
acquisition (as applicable), the name of the Target Company, the name
of the Acquiring Company, the name of the Surviving Company and
whether any new Subsidiary was created, organized or acquired, the
nature of the acquisition (e.g., asset or entity acquisition, merger
or consolidation), the aggregate purchase price paid, the nature of
the business(es) or assets acquired, the location(s) of the
business(es) or assets acquired, the historical revenues of the
business(es) or assets acquired, any Indebtedness, Indirect
Obligations or Security Interests affecting the business(es) or assets
acquired, any Investments acquired in connection with the acquisition
and a certification that any such Indebtedness, Indirect Obligations,
Security Interests and Investments, are Permitted Indebtedness,
Permitted Indirect Obligations, Permitted Security Interests or
Permitted Investments, respectively, and certifying that, at the time
of each acquisition, there was no Existing Default and that no Default
or Event of Default has occurred as a result of any of the
acquisitions described.
3.13. EVENTS OF DEFAULT. The amount "$250,000", each place it appears in
Section 16.1 is hereby deleted and replaced with the amount "$2,000,000."
3.14. REVISED DEFINITIONS. The definitions of "Permitted Redemptions" and
"Redemption Documents" in the Glossary attached to the Original Loan
Agreement as Exhibit 2.1 are hereby deleted and replaced with the following
definitions:
PERMITTED REDEMPTIONS -- the redemption by Borrower from time to time
during the period commencing on May ___, 2004 and ending on the
Revolving Loan Maturity Date pursuant to Redemption Documents, in one
or more transactions, of such of its shares as may be purchased for
consideration in an amount not to exceed $23,000,000; such repurchases
may be made using the proceeds of this Agreement, however the total
amount of consideration to be paid for all such repurchases (including
funds which are not proceeds of this Agreement) may not exceed
$23,000,000 unless otherwise approved by the Required Lenders.
REDEMPTION DOCUMENTS -- those certain agreements between a Covered
Person and one or more of the shareholders or other equity holders of
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any Covered Person (whether now existing or hereafter executed)
providing for all or a portion of the Permitted Redemptions.
4. NEW EXHIBIT 3. Exhibit 3 is hereby deleted and replaced with Exhibit 3
attached to this Amendment.
5. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under the Original Loan Agreement or any of
the other Loan Documents, nor constitute a waiver of any provision of the
Original Loan Agreement, or any of the other Loan Documents. Each reference in
the Original Loan Agreement to "the Agreement", "hereunder", "hereof", "herein",
or words of like import, shall be read as referring to the Original Loan
Agreement as amended hereby.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and
warrants to Lenders that (i) execution, delivery and performance of this
Amendment, and all transactions contemplated by the Amendment, have been duly
authorized by all requisite action of Borrower; (ii) no consents are necessary
from any third parties for Borrower's execution, delivery or performance of this
Amendment or in connection with any transaction contemplated by this Amendment,
(iii) this Amendment and the Original Loan Agreement constitute the legal, valid
and binding obligations of Borrower enforceable against Borrower in accordance
with their terms, except to the extent that the enforceability thereof against
Borrower may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of creditors rights generally or by equity principles of general
application, (iv) except as disclosed on the supplemental disclosure schedule
attached hereto as Exhibit B and the disclosure schedule attached to the
Original Loan Agreement, all of the representations and warranties contained in
Section 11 of the Original Loan Agreement, as amended hereby, are true and
correct with the same force and effect as if made on and as of the Effective
Date, and (v) there is no Existing Default and no Default or Event or Default
will occur immediately or with the passage of time or giving of notice as a
consequence of this Amendment becoming effective.
7. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i) except as
expressly amended hereby, the Original Loan Agreement and other Loan Documents
remain in full force and effect, (ii) the Original Loan Agreement, as amended
hereby, is in full force and effect, (iii) Borrower has no defenses to its
obligations under the Original Loan Agreement and the other Loan Documents, and
(iv) Borrower has no claim of any nature against Administrative Agent or any
Lender arising from or in connection with the Original Loan Agreement or the
other Loan Documents.
8. COUNTERPARTS. This Amendment may be executed by the parties hereto on any
number of separate counterparts, and all such counterparts taken together shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Amendment to produce or account for more than one counterpart
signed by the party to be charged.
9. COUNTERPART FACSIMILE EXECUTION. This Amendment, or a signature page thereto
intended to be attached to a copy of this Amendment, signed and transmitted by
facsimile machine or telecopier shall be deemed and treated as an original
document. The signature of any Person thereon, for purposes hereof, is to be
considered as an original signature, and the document transmitted is to be
considered to have the same binding effect as an original signature on an
original document. At the request of any party hereto, any facsimile or telecopy
document is to be re-executed in original form by the Persons who executed the
facsimile or telecopy document. No party hereto may raise the use of a facsimile
machine or telecopier or the fact that any signature was transmitted through the
use of a facsimile or telecopier machine as a defense to the enforcement of this
Amendment.
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10. GOVERNING LAW. This Amendment and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with
the internal laws of the State of Missouri applicable to contracts made and to
be performed wholly within such state, without regard to choice or conflict of
laws provisions.
11. FINAL EXPRESSION; NO COURSE OF DEALING. This Amendment is intended by the
parties as a final expression of their agreement evidenced hereby and is
intended as a complete and exclusive statement of the terms and conditions
thereof.
12. INCORPORATION BY REFERENCE. Administrative Agent, the undersigned Lenders
and Borrower hereby agree that all of the terms of the Loan Documents are
incorporated in and made a part of this Amendment by this reference.
13. STATUTORY NOTICE. The following notice is given pursuant to Section 432.045
of the Missouri Revised Statutes; nothing contained in such notice will be
deemed to limit or modify the terms of the Loan Documents or this Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER
AGREE IN WRITING TO MODIFY IT.
BORROWER AND LENDER HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT
AGREEMENT BETWEEN BORROWER AND LENDER WITH RESPECT TO THE SUBJECT MATTER OF
THIS AMENDMENT.
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by appropriate duly authorized officers as of the Effective Date.
YOUNG INNOVATIONS, INC. BANK OF AMERICA, N.A., as
by its Executive Vice President and Chief Administrative Agent
Financial Officer by its Vice President
/s/ Xxxxxx X. Xxxxxx, Xx. /s/ Xxxxx X. Xxxxxxxx
------------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxxxxxx
THE NORTHERN TRUST COMPANY, as a Lender BANK OF AMERICA, N.A., as a Lender
by its Vice President by its Senior Vice President
/s/ Xxxxxxx XxXxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------------- ------------------------------------
Name: Xxxxxxx XxXxxxxxx Name: Xxxxxxxx Xxxxxx
EXHIBIT 3
LENDERS' COMMITMENTS AND PRO-RATA SHARES
------------------------------------------- ---------------------------------------- ----------------------------
LENDER REVOLVING LOAN COMMITMENT PRO-RATA SHARES
------------------------------------------- ---------------------------------------- ----------------------------
Bank of America, N.A. $35,000,000 70%
------------------------------------------- ---------------------------------------- ----------------------------
The Northern Trust Company $15,000,000 30%
------------------------------------------- ---------------------------------------- ----------------------------
AGGREGATES $50,000,000 100%
------------------------------------------- ---------------------------------------- ----------------------------
------------------------------------------ ----------------------------------------- ---------------------------
LENDER SWINGLINE LOAN COMMITMENT PRO RATA SHARES
------------------------------------------ ----------------------------------------- ---------------------------
Bank of America, N.A. $ 3,000,000 100%
------------------------------------------ ----------------------------------------- ---------------------------
EXHIBIT A
DOCUMENTS AND REQUIREMENTS LIST
ITEMS TO BE OBTAINED, DELIVERED, OR SATISFIED EXECUTED ON OR BEFORE THE
EXECUTION DATE
1. Copies of all Consents, Licenses and Approvals (obtained by Borrower in
connection with the execution, performance, and enforceability of this
Amendment)
2. Master Assignment and Assumption Agreement
3. Amendment No. 4 to Credit Facilities Agreement, together with all exhibits
and schedules (including the Supplement to Disclosure Schedule)
4. Amended and Restated Revolving Notes:
a. $35,000,000 - Bank of America
b. $15,000,000 - The Northern Trust Company
5. Certificate of the Secretary of Borrower, certifying (a) that its articles
or certificate of incorporation and bylaws of Borrower previously certified
in connection with the execution of the Loan Agreement have not been
amended, (b) the resolutions adopted by the Board of Directors of Borrower,
authorizing the execution, delivery and performance of the Amendment and
all related documents by Borrower, are attached to the certificate and
remain in full force and effect, and (c) a certificate of incumbency
specifying the names, titles, and true signatures of the incumbent
corporate officers authorized to sign the Amendment and all related
documents on behalf of Borrower is attached to the certificate.
6. Good Standing Certificates for Borrower and each of the following Material
Subsidiaries from the Secretary of State of their states of incorporation
and qualification:
a. Borrower (MO corporation) - MO
x. Xxxxx Dental Manufacturing I, LLC (MO limited liability company) - MO,
TX
x. Xxxxx Acquisitions Company d/b/a Panoramic (MO corporation) - MO, IN
x. Xxxxx PS Acquisitions, LLC d/b/a Plak Smacker (DE limited liability
company) - DE, CA
x. Xxxxx Colorado, LLC - DE, CO
x. Xxxxx OS LLC - DE
7. Joint Acknowledgement of Guarantors
8. Legal Opinion of counsel to Borrower and each Material Subsidiary in form
satisfactory to Administrative Agent
9. Payment of Upfront Fee ($20,000, to be divided pro rata among the Lenders)
EXHIBIT B
(SUPPLEMENTAL DISCLOSURE SCHEDULE)
There are no supplemental disclosures if nothing is listed below.
