AMENDMENT No. 2 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.5
This AMENDMENT No. 2 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”)
is made and entered into as of the 9th day of May, 2008, by and among NATIONAL DENTEX
CORPORATION, a Massachusetts corporation (“Dentex”), its Subsidiaries listed on the
signature page(s) hereto (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 and that certain Amendment to Second Amended and Restated Loan Agreement
dated as of October 24, 2007 (collectively, as the same may be 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 that the Bank consolidate the First Line of Credit and
the Second Line of Credit into a single line of Credit of $25,000,000 to be used by the Borrowers
for their general corporate purposes, for the issuance of Letters of Credit and to fund
acquisitions by the Borrowers; and
WHEREAS, the Bank is willing to grant and make such amendments to the Loan Agreement 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 the Recitals of the Loan Agreement. The following recital is hereby
added to the Loan Agreement by inserting it immediately after the second WHEREAS clause thereof:
“WHEREAS, pursuant to Amendment No. 2 to this Agreement, the Bank and the Borrowers have
agreed to amend this Agreement to combine the First Line of Credit and the Second Line of Credit
(as defined in the Agreement) into a single Revolving Line of Credit (as defined below) of
$25,000,000;”
2. Amendment to §1(a) of the Loan Agreement. Section 1(a) of the Loan Agreement is
hereby amended, (A) by deleting Section 1(a)(i) in its entirety and replacing it with the
following:
“(i) a revolving line of credit (the “Revolving Line of Credit”) in an amount equal to
$25,000,000, available until the day prior to, and due and payable on, the Revolving Line of Credit
Termination Date (as hereinafter defined); the Revolving Line of Credit shall include a sublimit
for the issuance, on the terms and conditions set forth in this Agreement, of letters of credit for
the Borrowers’ account, provided, that the Bank’s LC Exposure (as hereinafter defined) at any time
shall not exceed $1,500,000. Advances under the Revolving Line of Credit may be used by the
Borrowers for their general corporate purposes, to refinance existing indebtedness, for the
issuance of Letters of Credit and to fund acquisitions by the Borrowers in accordance with Section
8 and the other terms and conditions hereof.”
And (B) by deleting Section 1(a)(ii) in its entirety and inserting in lieu thereof
“Intentionally Omitted.”
3. Amendment to § 1(b) of the Loan Agreement. Section 1(b) of the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with the following:
“(b) Advances. After the Closing, advances under the Revolving Line of Credit may be made,
from time to time, until the day prior to the Revolving Line of Credit Termination Date, in such
amounts as the Borrowers may request; provided, that the aggregate principal amount of all
advances at any time outstanding under the Revolving Line of Credit (after giving effect to all
amounts requested) plus the aggregate LC Exposure at such time, shall not exceed $25,000,000;
provided, that any such advances under the Revolving Line of Credit for the purpose of
funding any acquisition by the Borrowers, are subject to the provisions set forth in Section 8(c)
and 6(k) hereof; and provided, further, that at the time the Borrowers request an
advance under the Revolving Line of Credit and after giving effect to the making thereof, no
Default or Event of Default has occurred and is continuing. Subject to the terms of this
Agreement, advances under the Revolving Line of Credit, once repaid, may be reborrowed. If at any
time the outstanding principal amount of the advances under the Revolving Line of Credit exceeds
the amount determined by reference to the limits set forth in the first sentence of this Section
1(b), the Borrowers shall promptly pay an amount equal to such excess to the Bank.”
4. Amendment to § 2(b) of the Loan Agreement. Section 2(b) of the Loan Agreement is
hereby amended by deleting the first paragraph of such Section in its entirety and replacing it
with the following:
“(b) Payments. All payments received by the Bank from any of the Borrowers, except for the
payments referred to in Subsection (c) below and regularly scheduled payments of the Term Loan
under Section 1(a)(iii) hereof, shall be applied first to expenses due hereunder, then to accrued
interest and then to principal. Upon the occurrence and during the continuance of an Event of
Default hereunder, however, payments may be applied in such manner as the Bank may, in its sole
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discretion, determine. All computations of interest shall be made on the basis of a 360-day
year. Advances under the Revolving Line of Credit shall be evidenced by this Agreement, the
records of the Bank and a promissory note in the form of Exhibit A hereto (the “Revolving Line
of Credit Note”), due on the Revolving Line of Credit Termination Date. The Term Loan shall be
evidenced by a promissory note in the form of Exhibit C hereto (the “Amended and Restated Term
Note”), dated as of the Closing Date and due on the fifth (5th) anniversary of the
Closing Date. The LC Reimbursement Obligations shall be evidenced by this Agreement, the records
of the Bank and the Letters of Credit. The records of the Bank shall be prima facie evidence of
the advances hereunder, the aggregate unpaid amount of the Term Loan and the LC Reimbursement
Obligations and, in each case, of accrued interest thereon and of all payments made in respect
thereof.”
5. Amendment to § 2(c) of the Loan Agreement. Section 2(c) of the Loan Agreement is
hereby amended by deleting such Section 2(c)(ii) in its entirety and replacing it with the
following “Intentionally Omitted.”
6. Amendment to § 2(d) of the Loan Agreement. Section 2(d) of the Loan Agreement is
hereby amended by deleting such Section 2(d)(ii)(X) in its entirety.
7. Amendment to § 2(f)(ii) of the Loan Agreement. The first paragraph of Section
2(f)(ii) of the Loan Agreement is hereby amended by deleting such paragraph in its entirety and
replacing it with the following:
“(ii) Continuation and Conversion Elections. Subject to the provisions hereof, the Borrowers
shall have the option (A) to convert at any time one or more integral multiples of $1,000,000 of
its outstanding Prime Rate Loans under the Revolving Line of Credit into one or more LIBOR Rate
Loans, Cost of Funds Rate Loans or Fixed Rate Loans, (B) to convert at any time one or more
integral multiples of $1,000,000 of its outstanding Prime Rate Loans under the Term Loan into one
or more LIBOR Rate Loans, Cost of Funds Rate Loans, or Fixed Rate Loans, (C) effective on and as of
the expiration date of the Interest Period of a LIBOR Rate Loan or Cost of Funds Rate Loan, to
continue such loan LIBOR Rate Loan or Cost of Funds Rate Loan, respectively, as such, with an
equivalent or different Interest Period, or (D) effective on and as of the expiration date of the
Interest Period of a LIBOR Rate Loan or Cost of Funds Rate Loan, to convert such loan to a Prime
Rate Loan; provided, however, that (1) a LIBOR Rate Loan or Cost of Funds Rate
Loans may only be continued pursuant to clause (C) above if the outstanding principal amount of
such loan equals or exceeds $1,000,000 in the case of a LIBOR Rate Loan or Cost of Funds Rate Loans
advanced under the Revolving Line of Credit, or $1,000,000 in the case of LIBOR Rate Loan or Cost
of Funds Rate Loans under the Term Loan; (2) no portion of the outstanding principal amount of any
advance may be converted to, or continued as, a LIBOR Rate Loan or Cost of Funds Rate Loan when any
Default or Event of Default has occurred and is continuing; and (3) no portion of the outstanding
principal amount of any LIBOR Rate Loan or Cost of
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Funds Rate Loan may be converted to a LIBOR Rate Loan or Cost of Funds Rate Loan,
respectively, of a different duration if such LIBOR Rate Loan or Cost of Funds Rate Loan relates to
any Hedging Obligations unless the maturity of the relevant Hedging Obligations has been
appropriately adjusted in a manner satisfactory to the Bank.”
8. Amendment to §2(f)(vi) of the Loan Agreement. Section 2(f)(vi) of the Loan
Agreement is hereby amended by deleting the first paragraph of such Section in its entirety and
replacing it with the following:
“(vi) Voluntary Prepayment of LIBOR Rate Loans. LIBOR Rate Loans in connection with which the
Borrowers have entered into Hedging Obligations with the Bank may not be prepaid; other LIBOR Rate
Loans may be prepaid only upon the terms and conditions set forth herein. The Borrowers shall give
the Bank, no later than 10:00 a.m. (Boston time), at least four (4) Business Days’ notice of any
proposed prepayment of any LIBOR Rate Loans, specifying the proposed date of payment of such LIBOR
Rate Loans, and the principal amount to be paid. Each partial prepayment of the principal amount
of LIBOR Rate Loans shall be in an integral multiple of $1,000,000 and accompanied by the payment
of all charges outstanding on such LIBOR Rate Loans and of all accrued interest on the principal
repaid to the date of payment.”
9. Amendment to §3(a) of the Loan Agreement. Section 3(a) of the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with the following:
“(a) Issuance. The Bank agrees, on the terms and conditions set forth in this Agreement, to
issue standby letters of credit hereunder (each a “Letter of Credit”) at the request of the
Borrowers from time to time prior to the date that is 30 days before the Revolving Line of Credit
Termination Date; provided, that immediately after each such Letter of Credit is issued,
(i) the LC Exposure shall not exceed $1,500,000, and (ii) the sum of the outstanding principal
amount of all Revolving Line of Credit Loans plus the LC Exposure shall not exceed $25,000,000.
All Letters of Credit issued and outstanding under the Existing Loan Agreement, on and as of the
Closing Date shall become Letters of Credit hereunder.”
10. Amendment to §4 of the Loan Agreement. Section 4 of the Loan Agreement is hereby
amended as follows:
(A) Section (dd) shall be deleted in its entirety and replaced with the following: “(dd) The
term “Revolving Line of Credit Termination Date” shall mean the maturity date of the
Revolving Line of Credit, November 7, 2009.”
(B) Section (ee) shall be deleted in its entirety and replaced with the following: “(ee) The
term “Loan” shall mean an extension of credit by the Bank to
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the Borrowers, in the form of an advance under either the Revolving Line of Credit, a Letter
of Credit issued under the Revolving Line of Credit, or the Term Loan.”
(C) Section (hh) shall be deleted in its entirety and replaced with the following: “The term
“Notes” shall refer to, collectively, the Revolving Line of Credit Note and the Amended and
Restated Term Note.”
11. Amendment to §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 calculation (i)
prior to and including December 31, 2008, shall not exceed 2.5:1.0 and (ii) thereafter shall not
exceed 2.0:1.0.”
12. Amendment to §6(v) of the Loan Agreement. Section 6(v) of the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with the following:
“6(v) Minimum Consolidated EBITDA. For the period of four (4) consecutive fiscal quarters
then ended, the Borrowers shall not permit Consolidated EBITDA to be less than $16,500,000 on March
31, 2008 and on the last day of each fiscal quarter thereafter.”
13. Amendment to § 8(c) of the Loan Agreement. Section 8(c) of the Loan Agreement is
hereby amended by deleting the first paragraph of such Section in its entirety and replacing it
with the following:
“If the Borrowers desire to make a drawing under the Revolving Line of Credit for the purposes
of funding an acquisition by a Borrower, then the obligation of the Bank to make any such advance
is subject to the satisfaction of the following conditions precedent on or before the Borrowing
Date for such advance:”
14. Amendment to § 12(m) of the Loan Agreement. Section 12(m) of the Loan Agreement
is hereby amended by deleting such Section in its entirety and replacing it with the following:
“The Borrowers shall use the proceeds under this Agreement (i) for working capital purposes of
the Borrower, (ii) to refinance existing Indebtedness of the Borrowers, (iii) to fund acquisitions
by the Borrower, to the extent permitted herein, (iv) in the case of the Term Loan, to pay the
outstanding balance under the Second Line of Credit on the Closing Date. No portion of the
proceeds of any loans shall be used, and no portion of any Letter of Credit is to be obtained, in
whole or in part, for the purpose of purchasing or carrying any “margin security” or “margin stock”
as
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such terms are used in Regulations U, T or X of the Board of Governors of the Federal Reserve
System.”
15. Amendment to Exhibits of the Loan Agreement. Exhibit A of the Loan Agreement
shall be deleted in its entirety and replaced by Exhibit A attached hereto. Exhibit B of the Loan
Agreement shall be deleted in its entirety.
16. Amendment to Certain References in the Loan Agreement. Except as otherwise
amended under Sections 1-15 above:
(A) All references to “Lines of Credit”, “a Line of Credit”, “the First Line of Credit” or
“the Second Line of Credit” shall be amended to read “the Revolving Line of Credit”.
(B) All references to “Lines of Credit Termination Date” shall be amended to read “Revolving
Line of Credit Termination Date”.
(C) All references to “Line of Credit Notes” shall be amended to read “Revolving Line of
Credit Note”.
17. Effective Dates and Conditions to Effectiveness. The amendments to Sections 6(u)
and 6(v) of the Loan Agreement, as set forth in Sections 11 and 12 hereof shall be effective as of
March 31, 2008. All other amendments made to the Loan Agreement hereby 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 Revolving Line of Credit Note in the
form of Exhibit A hereto, in exchange for, and to replace, the Second Amended and Restated First
Line of Credit Note and the Second Amended and Restated Second Line of Credit Note, each dated as
of November 7, 2006, which notes are hereby cancelled and of no further force or effect, and (iii)
a fee in the amount of $50,000 in respect of the Bank’s approval of the terms of the Revolving Line
of Credit, as set forth herein.
18. Representations and Warranties. Each of the Borrowers represents and warrants
as follows:
(a) The execution and delivery of this Agreement 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.
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(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) 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.
19. 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.
20. 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).
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21. 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.
22. 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]
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set
forth above.
NATIONAL DENTEX CORPORATION
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
|
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| Title: | Executive Vice President and Treasurer |
GREEN DENTAL LABORATORIES, INC.,
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
|
|||||
| Title: | Assistant Treasurer |
▇▇▇▇▇▇ GROUP, INCORPORATED
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
|
|||||
| Title: | Assistant Treasurer and Assistant Secretary |
▇▇▇▇▇▇ LABORATORIES, INCORPORATED — MIDWEST
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
|
|||||
| Title: | Assistant Treasurer and Assistant Secretary |
▇▇▇▇▇▇ LABORATORIES, INC. — SOUTHEAST
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
|
|||||
| Title: | Assistant Treasurer and Assistant Secretary |
Amendment No. 2 Signature Page
Acknowledged and Agreed:
BANK OF AMERICA, N.A.,
as the Bank
BANK OF AMERICA, N.A.,
as the Bank
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|||||
| Title: | Vice President |
Amendment No. 2 Signature Page
Exhibit A
FORM OF
REVOLVING LINE OF CREDIT NOTE
$25,000,000
|
Date: May 9, 2008 |
FOR VALUE RECEIVED, NATIONAL DENTEX CORPORATION (“Dentex”), GREEN DENTAL LABORATORIES,
INC. (“Green”), ▇▇▇▇▇▇ GROUP, INCORPORATED (“▇▇▇▇▇▇”), ▇▇▇▇▇▇ LABORATORIES,
INCORPORATED — MIDWEST (“▇▇▇▇▇▇ — Midwest”), and ▇▇▇▇▇▇ LABORATORIES, INC. — SOUTHEAST
(“▇▇▇▇▇▇ — Southeast”, and together with Dentex, Green, Keller, and ▇▇▇▇▇▇ — Midwest and
each of their respective successors in title and assigns, called the “Borrowers”), by this
promissory note (hereinafter, together with the Schedule annexed hereto, called this
“Note”), jointly and severally and absolutely and unconditionally promise to pay to the
order of BANK OF AMERICA, N.A. (hereinafter, together with its successors in title and assigns,
called the “Bank”), the principal sum of Twenty Five Million and 00/100 Dollars
($25,000,000), or so much thereof as shall have been advanced by the Bank to the Borrowers by way
of revolving loans under the Revolving Line of Credit under the Loan Agreement (as hereinafter
defined) and that shall remain outstanding from time to time, such payment to be made as
hereinafter provided, and to pay interest on the principal sum outstanding hereunder from time to
time from the date hereof until the said principal sum or the unpaid portion thereof shall have
become due and payable as hereinafter provided.
Capitalized terms used herein without definition shall have the meaning set forth in the Loan
Agreement (as defined below).
The unpaid principal (not at the time overdue) under this Note from time to time outstanding
shall bear interest at the rate or rates from time to time in effect under the Loan Agreement.
Accrued interest on the unpaid principal amount outstanding from time to time under this Note shall
be payable on the dates specified in the Loan Agreement. Advances under this Note, once repaid,
may be reborrowed.
If any payment on this Note becomes due and payable on a day that is not a Business Day (as
defined in the Loan Agreement), the maturity thereof shall be extended to the next succeeding
Business Day (unless the Loan Agreement provides otherwise), and with respect to any payment of
principal, interest thereon shall be payable at the then applicable rate during any such extension.
On November 7, 2009, the date of the final maturity of this Note, there shall become
absolutely due and payable by the Borrowers hereunder, and the
Borrowers hereby jointly and severally promise to pay to the Bank, the balance (if
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any) of the
principal hereof then remaining unpaid, all of the unpaid interest accrued hereon and all (if any)
other amounts payable on or in respect of this Note or the indebtedness evidenced hereby.
Each overdue amount payable on or in respect of this Note or the indebtedness evidenced hereby
shall (to the extent permitted by applicable law) bear interest at the rates and on the terms
provided by the Loan Agreement. The unpaid interest accrued on each overdue amount in accordance
with the foregoing terms of this paragraph shall become and be absolutely due and payable by the
Borrowers to the Bank on demand by the Bank. Interest on each overdue amount will continue to
accrue as provided by the foregoing terms of this paragraph, and will (to the extent permitted by
applicable law) be compounded monthly until the obligations of the Borrowers in respect of the
payment of such overdue amount shall be discharged (whether before or after judgment).
Each payment of principal, interest or other sum payable on or in respect of this Note or the
indebtedness evidenced hereby shall be made by the Borrowers directly to the Bank in U.S. dollars,
for the account of the Bank, at the address of the Bank set forth in the Loan Agreement, on the due
date of such payment, and in immediately available and freely transferable funds. All payments on
or in respect of this Note or the indebtedness evidenced hereby shall be made without set-off or
counterclaim and free and clear of and without any deductions, withholdings, restrictions or
conditions of any nature.
This Note constitutes the amendment and restatement in their entirety of the Second Amended
and Restated First Line of Credit Note and the Second Amended and Restated Second Line of Credit
Note, issued by the Borrowers to the Bank under the Loan Agreement (the “Prior Notes”) and
is issued in substitution therefor and as an amendment and replacement thereof. Nothing herein or
in any other document shall be construed to constitute payment of the Prior Notes.
This Note is made and delivered by the Borrowers to the Bank pursuant to (i) the Second
Amended and Restated Loan Agreement, dated as of November 7, 2006 by and among the Borrowers and
the Bank (hereinafter, as originally executed, and as varied or supplemented or amended and
restated from time to time, called the “Loan Agreement”), to which reference is hereby made
for a statement of the terms and conditions (to the extent not set forth herein) under which the
revolving loans evidenced by this Note were made and are to be repaid and (ii) the Joinder
Agreement (as defined below). This Note evidences the joint and several obligations of the
Borrowers (a) to repay the principal amount of the revolving loans under the Revolving Line of
Credit made by the Bank to the Borrowers pursuant to the Loan Agreement; (b) to pay interest, as
herein and therein provided, on the principal amount hereof remaining unpaid from time to time; and
(c) to pay other amounts which may become due and payable hereunder or thereunder as herein and
therein
provided. Reference is hereby made to the Loan Agreement (including the Exhibits and
Schedules annexed thereto) for a complete statement of the terms thereof.
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The Borrowers will have the right to prepay the unpaid principal of this Note in full or in
part upon the terms contained in the Loan Agreement. The Borrowers will have an obligation to
prepay principal of this Note from time to time if and to the extent required under, and upon the
terms contained in, the Loan Agreement. Any partial payment of the indebtedness evidenced by this
Note shall be applied in accordance with the terms of the Loan Agreement.
Pursuant to and upon the terms contained in Section 10 of the Loan Agreement, the
entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this
Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby may be declared to be immediately due and payable, whereupon the entire unpaid
principal of this Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby
shall (if not already due and payable) forthwith become and be due and payable to the Bank without
presentment, demand, protest or any other formalities of any kind, all of which are hereby
expressly and irrevocably waived by each of the Borrowers, excepting only for notice expressly
provided for in the Loan Agreement.
All computations of interest payable as provided in this Note shall be made by the Bank in
accordance with the terms of the Loan Agreement. The interest rate in effect from time to time
shall be determined in accordance with the terms of the Loan Agreement.
Should all or any part of the indebtedness represented by this Note be collected by action at
law, or in bankruptcy, insolvency, receivership or other court proceedings, or should this Note be
placed in the hands of attorneys for collection after default, EACH OF THE BORROWERS HEREBY
PROMISES TO PAY TO THE HOLDER OF THIS NOTE, UPON DEMAND BY THE HOLDER HEREOF AT ANY TIME, IN
ADDITION TO PRINCIPAL, INTEREST AND ALL (IF ANY) OTHER AMOUNTS PAYABLE ON OR IN RESPECT OF THIS
NOTE OR THE INDEBTEDNESS EVIDENCED HEREBY, ALL COURT COSTS AND REASONABLE ATTORNEYS’ FEES AND ALL
OTHER COLLECTION CHARGES AND EXPENSES REASONABLY INCURRED OR SUSTAINED BY THE HOLDER OF THIS NOTE.
No delay or omission on the part of the Bank or any holder hereof in exercising any right
hereunder shall operate as a waiver of such right or of any other rights of the Bank or such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of
the same or any other right on any further occasion.
Each of the Borrowers and every endorser and guarantor of this Note hereby irrevocably waive
notice of acceptance, presentment, demand, notice of nonpayment, protest, notice of protest, suit
and all other demands, notices and other
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conditions precedent in connection with the delivery,
acceptance, performance, default, collection and/or enforcement of this Note or any collateral or
security therefor, except for notices expressly provided for in the Loan Agreement or any other
Loan Document, and assent to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
The Bank’s books and records concerning the revolving loans under the Revolving Line of
Credit, the accrual of interest thereon, and the repayment of such revolving loans, shall be prima
facie evidence of the indebtedness hereunder.
This Note shall be binding upon each of the Borrowers, and each endorser and guarantor hereof,
and upon their respective successors, assigns and representatives, and shall inure to the benefit
of the Bank and its permitted successors, endorsees, and assigns.
Each of the Borrowers hereby absolutely and irrevocably consents and submits, for itself and
its property, to the jurisdiction of the courts of the Commonwealth of Massachusetts, U.S.A. and of
the United States of America for the District of Massachusetts in connection with any actions or
proceedings brought against the Borrower by the holder hereof arising out of or relating to this
Note.
EACH PARTY HERETO HEREBY MUTUALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO
A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THE LOAN
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, AND AGREES THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY HERETO CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS NOTE
AND MAKE THE LOANS.
This Note is intended to take effect as a sealed instrument. This Note and the obligations of
the Borrowers hereunder shall be governed by and interpreted
and determined in accordance with the laws of the Commonwealth of Massachusetts, U.S.A.
-4-
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-5-
IN WITNESS WHEREOF, this REVOLVING LINE OF CREDIT NOTE has been duly executed under seal by
the undersigned on the day and in the year first above written.
| BORROWERS: | ||||||||||||
| WITNESS: | NATIONAL DENTEX CORPORATION | |||||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||||
| Title: | Vice President, Treasurer and Chief Financial Officer |
|||||||||||
| WITNESS: | GREEN LABORATORIES, INC. | |||||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||||
| Title: | Assistant Treasurer | |||||||||||
ADDITIONAL BORROWERS, pursuant to that certain Joinder Agreement dated as of January 11, 2007
(the “Joinder Agreement”) by and among each of ▇▇▇▇▇▇, ▇▇▇▇▇▇ — Midwest, ▇▇▇▇▇▇ — Southeast
(each as defined therein) and the Bank et al.
| WITNESS: | ▇▇▇▇▇▇ GROUP, INCORPORATED | |||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Title: Assistant Treasurer and Assistant Secretary |
||||||||||
| WITNESS: | ▇▇▇▇▇▇ LABORATORIES, INCORPORATED — MIDWEST |
|||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Title: Assistant Treasurer and Assistant Secretary |
||||||||||
| WITNESS: | ▇▇▇▇▇▇ LABORATORIES, INC. — SOUTHEAST | |||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||||||
| Title: Assistant Treasurer and Assistant Secretary |
||||||||||
SCHEDULE TO REVOLVING LINE OF CREDIT NOTE
| TYPE OF LOAN | LIBOR OR | |||||||||||||
| (PRIME RATE, | COST OF | |||||||||||||
| LIBOR RATE, COST | FUNDS | |||||||||||||
| AMOUNT OF | OF FUNDS RATE OR | APPLICABLE | INTEREST | INTEREST | AMOUNT | NOTATION | ||||||||
| DATE | LOAN | FIXED RATE) | MARGIN | RATE* | PERIOD ** | PAID | MADE BY | |||||||
| * | For Prime Rate Loans, insert Prime Rate plus Applicable Margin | |
| For LIBOR Loans, insert LIBOR Rate plus Applicable Margin | ||
| For Cost of Funds Rate Loans, insert Cost of Funds Rate plus Applicable Margin | ||
| For Fixed Rate Loans, insert Fixed Rate | ||
| ** | For LIBOR Rate loans and Cost of Funds Rate loans only |