EXHIBIT 10.1
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FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT TO LOAN
AGREEMENT (this "Amendment") is entered
into as of the 17th day of June, 2009 by and between LANDAUER,
INC., a
Delaware corporation ("Borrower"), and U.S. BANK NATIONAL
ASSOCIATION, a
national banking association (the "Bank").
W I T N E S S E T H:
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WHEREAS, Bank and the Borrower are
party to that certain Loan
Agreement dated as of October 5, 2007 (the "Agreement"); and
WHEREAS, the Bank and the Borrower
desire to amend the Agreement in
accordance with this Amendment.
NOW, THEREFORE, for and in
consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth
the terms
and conditions of this Amendment, the parties, intending to be
bound,
hereby agree as follows:
1. INCORPORATION
OF THE AGREEMENT. All capitalized terms which
are not defined hereunder shall have the same meanings as set forth
in the
Agreement, and the Agreement, to the extent not inconsistent with
this
Amendment, is incorporated herein by this reference as though the
same were
set forth in its entirety. To the extent any terms and
provisions of the
Agreement are inconsistent with the amendments set forth in
PARAGRAPH 2
below, such terms and provisions shall be deemed superseded
hereby. Except
as specifically set forth herein, the Agreement shall remain in
full force
and effect and its provisions shall be binding on the parties
hereto.
2. AMENDMENT OF
THE AGREEMENT.
(a) The definitions of the terms "Borrowing Base",
"Borrowing
Base Certificate", "EBITDAR", "Fixed Assets", "Fixed Charge
Coverage
Ratio", "Global Dividends", "Liquidity Premium", "Maintenance
Capital
Expenditures", "Minority Distributions", "Pro Forma
Amortization",
"Revolving Loan Availability" and "Subsidiary Guarantor" are hereby
added
to Section 1.1 of the Agreement to read as follows:
"Borrowing Base" shall mean:
(a) an amount equal to eighty percent (80%) of the
amount of
Accounts due and owing to the Borrower and each Subsidiary
Guarantor from Account Debtors domiciled in the United States
or Canada, plus
(b) an amount equal to fifty percent (50%) of the lower
of
cost or market value of Inventory of the Borrower and each
Subsidiary Guarantor located in the United States,
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(c) an amount equal to fifty percent (50%) of the net
book
value of all domestic Fixed Assets of the Borrower and each
Subsidiary Guarantor, plus
(d) an amount equal to one hundred percent of cash on
hand
located in deposit accounts within the United States.
"Borrowing Base Certificate" shall have the meaning set forth
in Section 9.7(i).
"EBITDAR" shall mean EBITDA plus domestic rent expense of the
Borrower and each Subsidiary Guarantor.
"Fixed Assets" means all domestic assets of Borrower and each
Subsidiary Guarantor which are classified as fixed assets in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means as of any date, computed
for the prior twelve month period, the ratio of (a) EBITDAR for
the prior twelve month period MINUS Maintenance Capital
Expenditures MINUS federal and state income taxes paid in cash
of the Borrower and each Subsidiary domiciled in the United
States LESS Global Dividends PLUS Minority Distributions to
(b)
domestic Interest Expense of the Borrower and each
Subsidiary Guarantor PLUS Pro Forma Amortization PLUS domestic
rent expense of the Borrower and each Subsidiary Guarantor,
PLUS scheduled principal payments of the Borrower and each
Subsidiary Guarantor, all as determined in accordance with
GAAP.
"Global Dividends" shall mean 100% of all dividends issued by
Borrower to its shareholders.
"Liquidity Premium" means 1.00% with respect to all LIBOR Loans
and 0.97% with respect to all Prime Loans.
"Maintenance Capital Expenditures" shall mean an amount equal
to fifty percent (50%) of the domestic depreciation expense of
Borrower and each Subsidiary Guarantor.
"Minority Distributions" means, for any period, all
distributions and dividends made from the foreign Subsidiaries
of Borrower to Borrower in cash.
"Pro Forma Amortization" means, for purposes of calculating the
Fixed Charge Coverage Ratio, the pro forma amortization of that
portion of the Borrowing Base advanced on domestic Fixed Assets
determined in accordance with the most recently delivered
Borrowing Base Certificate, which amount is assumed to be
amortized during such period based upon a term of seven (7)
years.
"Revolving Loan Availability" shall mean at any time, the
lesser of (a) the Revolving Loan Commitment, or (b)
the Borrowing Base.
"Subsidiary Guarantor" means each domestic Subsidiary of the
Borrower which has executed a guaranty of the Obligations in
favor of the Bank in form and substance
acceptable to the Bank.
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(b) The definition of the terms "EBITDA", "Interest
Rate",
"LIBOR Loans", "LIBOR Rate", "Loan Period", "Maturity Date",
"Maximum
Letter of Credit Obligation" and "Revolving Loan Commitment" are
hereby
amended and restated to read as follows:
"EBITDA" shall mean, for any period, (a) the sum for such
period of: (i) domestic net income of the Borrower and
each
Subsidiary Guarantor, as determined in accordance with GAAP,
PLUS (ii) domestic Interest Expense of the Borrower and each
Subsidiary Guarantor, PLUS (iii) federal and state income taxes
paid in the United States, as determined in accordance with
GAAP (iv) all amounts treated as expenses for domestic
depreciation and amortization expense for the Borrower and each
Subsidiary Guarantor PLUS any non-cash items of loss which are
extraordinary items as defined by GAAP, MINUS (b) any non-cash
items of gain which are extraordinary items as defined by GAAP,
including, without limitation, (i) that portion of net income
arising out of the sale of assets outside of the ordinary
course of business, (ii) income from all foreign Subsidiaries
and any domestic Subsidiaries which are not Subsidiary
Guarantors, and (iii) any gains from minority interest income.
"Interest Rate" means Borrower's option from time to time of
(i) the Prime Rate MINUS 0.50% PLUS the Liquidity Premium in
effect for Prime Loans (the "Prime Based Interest Rate") or
(ii) the LIBOR Rate PLUS 1.90% PLUS the Liquidity Premium in
effect for LIBOR Loans (the "LIBOR Based Interest Rate");
provided, however, the Prime Based Interest Rate shall only be
available when (i) the Prime Based Interest Rate is more than
the LIBOR Based Interest Rate or (ii) in instances where the
LIBOR Rate is not available in accordance with SECTION 2.2(b)
and (c).
"LIBOR Loan" or "LIBOR Loans" shall mean that portion, and
collectively those portions, of the aggregate outstanding
principal balance of the Revolving Loans that will bear
interest at the LIBOR Rate.
"LIBOR Rate" means the one-month LIBOR Rate quoted by the Bank
from Reuters
Screen LIBOR01 or any successor thereto, which
shall be that one-month LIBOR rate in effect and reset each New
York Banking Day, adjusted for any reserve requirement and any
subsequent costs arising from a change in government
regulation, such rate rounded up to the nearest one-sixteenth
percent.
"Loan Period" shall mean the period commencing on the advance
date of the applicable LIBOR Rate Loan and ending on the
numerically corresponding day one month thereafter matching the
interest rate term selected by Borrower; provided, however,
(a) if any Loan Period would otherwise end on a day which is
not a New York Banking Day, then the Loan Period shall end on
the next succeeding New York Banking Day unless the next
succeeding New York Banking Day falls in another calendar
month, in which case the Loan Period shall end on the
immediately preceding New York Banking Day; or (b) if any Loan
Period begins on the last New York Banking Day of a calendar
month (or on the day for which there is no numerically
corresponding day in the calendar month at the end of the Loan
Period), then the Loan Period shall end on the last New York
Banking Day of the calendar month at the end of such Loan
Period.
"Maturity Date" shall mean June 16, 2011, unless extended by
the Bank pursuant to any modification, extension or renewal
note executed by the Borrower and accepted by the Bank in its
sole and absolute discretion in substitution for the Revolving
Note.
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"Maximum Letter of Credit Obligation" shall mean (a) in the
event the outstanding amount of all Revolving Loans PLUS the
stated amount of all Letter of Credit Obligations is less than
or equal to Twenty Million Dollars ($20,000,000), the lesser of
(i) the amount of the Revolving Loan Commitment less the
aggregate amount of all Loans (including, but not limited to,
Letter of Credit Obligations which shall include any requested
Letter of Credit, as applicable) outstanding at any time and
(ii) Fifteen Million Dollars ($15,000,000) and (b) in the event
the outstanding amount of all Revolving Loans PLUS the stated
amount of all Letter of Credit Obligations is greater than
Twenty Million Dollars($20,000,000), the lesser of (i) the
Borrowing Base less the aggregate amount of all Revolving Loans
(including, but not limited to, Letter of Credit Obligations
which shall include any requested Letter of Credit, as
applicable) outstanding at any time and (ii) Fifteen Million
Dollars ($15,000,000).
"Revolving Loan Commitment" shall mean Thirty Million Dollars
($30,000,000).
(c) The definition of the term "LIBOR" is hereby
deleted from
Section 1.1 of the Agreement.
(d) The first sentence of Section 2.1(a) is hereby
amended
and restated to read as follows:
Subject to the terms and conditions of this Agreement and the
other Loan Documents, and in reliance upon the representations
and warranties of Borrower set forth herein and in the other
Loan Documents, the Bank agrees to make such Revolving Loans at
such times as Borrower may from time to time request until, but
not including, the Maturity Date, and in such amounts as
Borrower may from time to time request; provided, however, that
the aggregate principal balance of all Revolving Loans and all
Letter of Credit Obligations (the "Outstandings") outstanding
at any time shall not exceed (i) the Revolving Loan Commitment
in the event Outstandings (including the requested advance) are
less than or equal to $20,000,000 and (ii) Revolving Loan
Availability in the event Outstandings (including the requested
advance) are greater than $20,000,000.
(e) SECTION 2.1(c)(i) is hereby amended and restated to
read
as follows:
(i) MANDATORY PREPAYMENTS. All Revolving Loans
hereunder
shall be repaid by Borrower on the Maturity Date, unless
payable sooner pursuant to the provisions of this Agreement.
In the event the aggregate outstanding principal balance of all
Revolving Loans and Letter of Credit Obligations hereunder
exceeds (i) the Revolving Loan Commitment (in the event the
aggregate amount of outstanding Revolving Loans and the stated
amount of all Letters of Credit are less than or equal to
$20,000,000) or (ii) Revolving Loan Availability (in the event
the aggregate amount of outstanding Revolving Loans and the
stated amount of all Letters of Credit are greater than
$20,000,000), Borrower shall, without notice or demand of any
kind, immediately make such repayments of the Revolving Loans
or take such other actions as shall be necessary to eliminate
such excess. Also, if Borrower chooses not to convert any
Revolving Loan which is a LIBOR Loan to a Prime Loan as
provided in Section 2.2(b) and Section 2.2(c), then
such
Revolving Loan shall be immediately due and payable on the last
New York Banking Day of the then-existing Loan Period or on
such earlier date as required by law, all without further
demand, presentment, protest or notice of any kind, all of
which are hereby waived by Borrower (each a "Mandatory
Prepayment").
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(f) SECTION 5.1(a) is hereby amended and restated to
read as
follows:
(a) Each Loan shall be made available to Borrower
upon
Borrower's request from any Person whose authority to so act
has not been revoked by Borrower in writing previously received
by the Bank. Each Revolving Loan may be advanced either as
a
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