AMENDMENT NO. 5
TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This
AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this “ Amendment ”) is made and
entered into as of the 13 th day of March, 2009, but shall be deemed to be
effective as of the 30 th 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,
that certain Consent and Amendment No. 3 to Second Amended and
Restated Loan Agreement dated as of September 2, 2008, and
that certain Amendment No. 4 to Second Amended and Restated
Loan Agreement dated as of December 11, 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;
WHEREAS, the Bank is willing to modify the Loan Agreement in
certain 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 4(j) of the Loan Agreement
(“Consolidated EBITDA”) . Section 4(j) of the
Loan Agreement is hereby amended by inserting, immediately after
the word “GAAP” in the first sentence thereof, the
following:
“plus, to
the extent deducted in determining Consolidated Net Income for such
fiscal period, one-time non-recurring expenses, not to exceed
$7,000,000
-1-
in the
aggregate, which are directly related to non-cash goodwill
impairment charges”.
2. Effective Dates and Conditions to Effectiveness .
The amendments contained herein shall be effective 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 the 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 its jurisdiction of
incorporation or organization; and (iii) a fee in the amount
of $25,000 in respect of the Bank’s modification of the
credit facilities contained in the Loan Agreement as set forth
herein.
3. 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 cha
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