WAIVER AND AMENDMENT NO. 5 TO CREDIT AGREEMENT
Exhibit 10.35
THIS WAIVER AND AMENDMENT NO. 5 TO CREDIT AGREEMENT (this “Amendment”), dated as of
the 31st day of July, 2009, is by and among XXXXXXX TECHNOLOGY COMPANY, INC., a Delaware
corporation (“Parent”), XXXXXXX GERMANY HOLDING GMBH, a German company (“Newco”),
XXXXXXX GERMANY GMBH, a German company (“BGG”), XXXXXXX OXY-DRY GMBH (formerly known as
“OXY-DRY MASCHINEN GMBH”), a German company (“Oxy-Dry GmbH”, and, collectively with the
Parent, Newco and BGG, the “Borrowers”), the other Credit Parties (as defined in the
Guaranty and Collateral Agreement (as defined below)) a party hereto, the Lenders (as defined in
the Credit Agreement referred to below) signatory hereto and BANK OF AMERICA, N.A., a national
banking association (as successor-by-merger to LASALLE BANK NATIONAL ASSOCIATION), in its capacity
as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders.
PRELIMINARY STATEMENTS
A. The Borrowers, the Lenders and the Administrative Agent are parties to that certain Credit
Agreement, dated as of November 21, 2006, as amended by that certain (i) Amendment to Credit
Agreement dated as of December 29, 2006, (ii) Waiver, Consent and Amendment No. 2, dated as of
April 18, 2007 (“Amendment No. 2”), (iii) Waiver, Consent and Amendment No. 3 to Credit
Agreement dated as of January 3, 2008, (iv) Amendment No. 4 to Credit Agreement dated as of
February 26, 2008 and (v) Modification and Limited Waiver Agreement dated as of March 31, 2009, as
amended and restated as of May 15, 2009 and amended on June 22, 2009 (such Modification and Limited
Waiver Agreement, as so amended and restated and as so amended, and as may be further amended,
restated, supplemented or otherwise modified from time to time, the “Modification and Limited
Waiver”);
B. The term “Credit Agreement” as used in this Amendment shall mean such Credit
Agreement as amended as set forth in paragraph A above.
C. The Guaranty and Collateral Agreement (as defined in the Credit Agreement) was amended
pursuant to an Amendment No. 1 to Guaranty and Collateral Agreement, dated as of June 24, 2009 (the
“Amendment No. 1 to Guaranty and Collateral Agreement”).
D. The Borrowers, the Administrative Agent and the Lenders party hereto desire to further
amend the Credit Agreement, as hereafter set forth, and each of the Borrowers, the Administrative
Agent and such Lenders is willing to do so upon the terms and conditions set forth in this
Amendment; and
E. The Borrowers have requested that the Administrative Agent and the Lenders waive the
“Specified Events of Default” set forth in the Modification and Limited Waiver, and the
Administrative Agent and the Lenders are willing to waive such “Specified Events of Default” upon
the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.01 Capitalized terms used in this Amendment and not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement unless otherwise stated herein.
ARTICLE II
AMENDMENTS
AMENDMENTS
2.01 Amendment to Section 1.1: Addition of New Definitions. Section 1.1 of
the Credit Agreement is hereby amended by adding the following new definitions (to be inserted in
proper alphabetical order):
Amendment No. 5 means that certain Waiver and Amendment No. 5 to Credit
Agreement dated as of July 31, 2009, among Borrowers, the other Credit Parties a
party thereto, the Lenders signatory thereto and the Administrative Agent, as
amended, restated, supplemented or otherwise modified from time to time.
Currency Adjusted Net Sales means, with respect to any period, the net
sales of the Parent and its Subsidiaries for such period on a consolidated basis.
Such Currency Adjusted Net Sales shall, subject to the immediately succeeding
sentence, be calculated in accordance with GAAP in a manner consistent with how net
sales were calculated in the financial statements delivered pursuant to Sections
10.1.1 and 10.1.2 prior to the Fifth Amendment Effective Date.
Notwithstanding the foregoing, (i) sales for June of 2009 made in currencies other
than Dollars shall be converted to Dollars using the exchange rates set forth in the
projections for June of 2009 previously delivered to the Lenders and (ii) sales made
on or after July 1, 2009 in the following currencies shall, for purposes of
calculating Currency Adjusted Net Sales, be converted to Dollars using the following
respective exchange rates (which exchange rates are referred to herein as the
“Specified Assumed Exchange Rates”):
| Foreign Currency | Exchange Rate (per Dollar) | |||
GBP |
0.61 | |||
AUD |
1.36 | |||
JPY |
99.31 | |||
SEK |
7.36 | |||
HKD |
7.77 | |||
RMB |
6.84 | |||
EURO |
0.73 | |||
REAL |
2.06 | |||
RUPEE |
46.82 | |||
SING |
1.46 | |||
CHF |
1.12 | |||
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Excess Cash Flow means, without duplication, with respect to any
applicable Fiscal Year of the Parent and its Subsidiaries, (a) EBITDA with respect
to such Fiscal Year minus (b) the consolidated Capital Expenditures of the
Parent and its Subsidiaries during such Fiscal Year to the extent such Capital
Expenditures are permitted by this Agreement and are not financed with the proceeds
of Debt (other than Revolving Loans), minus (c) Interest Expense (whenever
accrued) actually paid in cash by the Parent or its Subsidiaries in such Fiscal
Year, minus (d) to the extent not deducted in determining such EBITDA, any
scheduled permanent principal payments (but excluding for the avoidance of doubt any
mandatory prepayments required under Section 6.2.2) actually paid in cash by
the Parent or its Subsidiaries in respect of Total Debt (other than the Revolving
Loans or other revolving indebtedness) permitted under this Agreement, minus
(e) any voluntary prepayments (if any) of the Term Loans made by Newco in such
Fiscal Year and any voluntary prepayment of the Revolving Loans made in such Fiscal
Year and after the Fifth Amendment Effective Date but only to the extent that the
applicable Revolving Commitments are simultaneously and permanently reduced by the
amount of such prepayment, minus (f) consolidated income taxes and franchise
taxes (to the extent in lieu of income taxes) actually paid in cash by the Parent or
its Subsidiaries in such Fiscal Year, plus (in the case of extraordinary
items consisting of a gain or income) and minus (in the case of
extraordinary items consisting of a loss or expense) (g) the cash component (if any)
of any extraordinary item (but excluding, in each case, any extraordinary item
covered by clause (h) below) in such Fiscal Year, minus (in the case of a
gain) and plus (in the case of a loss) (h) any gain or loss from any Asset
Disposition in such Fiscal Year, minus (i) any restructuring charges or
restructuring expenses paid in cash by the Parent and its Subsidiaries in such
Fiscal Year to the extent such charges or expenses are added-back in calculating
EBITDA pursuant to clause (vii) of the definition of EBITDA and minus (i)
any Fifth Amendment Expenses (as defined in the definition of EBITDA) paid in cash
by the Parent and its Subsidiaries in such Fiscal Year and added-back in
calculating EBITDA pursuant to clause (x) of the definition of EBITDA.
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Fifth Amendment Effective Date means July 31, 2009.
Four Fiscal Quarter Computation Period means each period of four
consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.
German Pledge Agreements means the German Pledge Agreements as defined
in the Guaranty and Collateral Agreement.
Minimum Liquidity and Currency Adjusted Net Sales Certificate means a
Minimum Liquidity and Currency Adjusted Net Sales Certificate in substantially the
form of Exhibit C.
Specified Assumed Exchange Rates — see the definition of Currency
Adjusted Net Sales.
Specified Availability Amount means $7,900,000, or such lesser amount
(if any) as the Required Lenders may (in their absolute discretion) agree to in
writing from time to time.
Specified Currency Prepayment Amount means, at any time, an amount
equal to $25,000,000 less the applicable Specified Availability Amount at such time.
Technotrans Litigation means any and all claims, counterclaims or other
causes of action of the Parent or any of its Subsidiaries against technotrans AG or
its Affiliates arising out of or otherwise relating to any patent infringements (or
the like).
Technotrans Litigation Net Proceeds shall mean (i) any recovery (or
other receipt of cash proceeds) by the Parent or any of its Subsidiaries from the
Technotrans Litigation, whether from any judgment, decision, award, settlement or
otherwise less (ii) any and all out-of-pocket costs and expenses, including
out-of-pocket attorney fees and disbursements and the out-of-pocket fees and
disbursements of other outside experts, paid by the Parent or any of its
Subsidiaries in bringing or prosecuting the Technotrans Litigation or in any
settlement thereof, or in defending or settling any counterclaims related thereto.
If requested by the Administrative Agent, the Parent shall provide reasonable
evidence of the amount(s) under clause (i) and/or (ii) of the immediately preceding
sentence.
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2.02 Amendment to Section 1.1: Amendment and Restatement of Certain Definitions.
Section 1.1 of the Credit Agreement is hereby amended by amending and restating the
following definitions to read in their entireties as follows:
Applicable Margin means, for any day on or after March 31, 2009, the
rate per annum set forth below (it being understood and agreed that the Applicable
Margin for (i) LIBOR Loans shall be the percentage set forth under the column “LIBOR
Margin”, (ii) Base Rate Loans shall be the percentage set forth under the column
“Base Rate Margin”, (iii) the Non-Use Fee Rate shall be the percentage set forth
under the column “Non-Use Fee Rate” and (iv) the L/C Fee Rate shall be the
percentage set forth under the column “L/C Fee Rate”):
| LIBOR | Base Rate | Non-Use | L/C Fee | |||||||||
| Margin | Margin | Fee Rate | Rate | |||||||||
4.50% |
3.00 | % | 0.500 | % | 4.50 | % | ||||||
Bank Product Agreements means those certain cash management service
agreements and other agreements or other documents entered into from time to time
between any Loan Party and a Lender or its Affiliates or the Administrative Agent in
connection with any of the Bank Products.
Collateral Documents means, collectively, the Guaranty and Collateral
Agreement, each Mortgage (if any), each Collateral Access Agreement, the Foreign
Pledge Agreements, the German Opco Security Documents (as defined in the Guaranty
and Collateral Agreement), each control agreement and any other agreement or
instrument pursuant to which at any time the Parent, any Subsidiary or any other
Person grants or purports to grant collateral to the Administrative Agent for the
benefit of the Lenders or otherwise relates to such collateral.
EBITDA means, for any period, Consolidated Net Income for such period
plus (without duplication), in each case to the extent deducted in
determining such Consolidated Net Income in such period, (i) Interest Expense, (ii)
income tax expense and franchise tax expense (to the extent in lieu of income tax
expense), (iii) depreciation and amortization, (iv) non-cash charges (if any) under
FAS No. 142 regarding the impairment of goodwill, (v) other non-cash impairment
charges with respect to long-term assets (for the avoidance of doubt there is no
“add-back” under this clause (v) or any other clause of this definition for any
increases in the reserves with respect to inventory or accounts receivable or for
any write-off with respect to inventory or accounts receivable), (vi) non-cash write
offs of previously capitalized financing costs, (vii) restructuring charges or
restructuring expenses (whether cash or non-cash) incurred by the Parent or its
Subsidiaries with respect to (a) the closure or consolidation of plants or offices,
(b) rent reserves for closed or consolidated plants or offices and (c) severance
payments for employees terminated as part of a general downsizing, (viii)
establishment or increase in reserves for uninsured litigation claims provided that
the aggregate add-back under this clause (viii) shall not exceed $100,000 for such
period, (ix) non-cash expenses (if any) resulting from the grant by the Parent of
Capital Securities (including options), and (x) non-capitalized one-time
out-of-pocket fees (including the Amendment Fee (as defined in Amendment No. 5) and
any
fees payable pursuant to the Agent Fee Letter in connection with Amendment No.
5) and legal and financial advisor expenses, not to exceed $998,000 in the aggregate
for purposes of this clause (x), incurred (in such period) by the Parent and its
Subsidiaries in connection with the negotiation, execution and delivery of Amendment
No. 5 and any documents prepared and delivered in connection therewith or any term
sheet relating thereto (such one-time fees and expenses, the “Fifth Amendment
Expenses”), all on a consolidated basis of the Parent and its Subsidiaries.
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Fixed Charge Coverage Ratio means, for any Four Fiscal Quarter
Computation Period, the ratio of (a) the total for such Four Fiscal Quarter
Computation Period of EBITDA minus the sum of (i) income taxes (and
franchise taxes in lieu of income taxes) paid, or required to be paid, in cash by
the Parent and its Subsidiaries in such Four Fiscal Quarter Computation Period plus
(ii) all Capital Expenditures of the Parent and its Subsidiaries for such Four
Fiscal Quarter Computation Period to the extent not financed (it being agreed that
Capital Expenditures paid with the proceeds of Revolving Loans shall not be
considered financed for such purposes) to (b) the sum for such Four Fiscal Quarter
Computation Period of (i) Interest Expense with respect to such Four Fiscal Quarter
Computation Period plus (ii) all payments of principal of Debt (including
the Term Loans but excluding payments required under Section 6.2.2 and also
excluding required payments of the Revolving Loans) required to be paid by the
Parent or its Subsidiaries in such Four Fiscal Quarter Computation Period
plus (iii) any Rabbi Trust Permitted Payments made in such Four Fiscal
Quarter Computation Period.
Foreign Pledge Agreements shall mean (i) the German Pledge Agreements,
(ii) the Pledge Agreement between BEC BV and the Administrative Agent, pledging the
shares of Xxxxxxx Jimek AB, (iii) the respective Share Pledge Agreements, as
supplemented and modified by any Undertaking and Acknowledgement(s) if applicable,
and any other share pledge modifications, agreements, undertakings and
acknowledgments pledging the shares of BEC BV and Xxxxxxx Graphic Equipment B.V. in
favor of the Administrative Agent at any time entered into (collectively, the
“Netherlands Pledge Agreements”), and (iv) the Stock Pledge Agreement
pledging the shares of Japan-Xxxxxxx Ltd. in favor of the Administrative Agent.
German Revolving Commitment or German Revolving Loan Commitment
means, with respect to a Permanent Lender at the applicable time, the commitment of
such Permanent Lender to make German Revolving Loans. The initial amount (in
Dollars) of the respective German Revolving Commitment of each initial Permanent
Lender that has made such a commitment is set forth in Annex A hereto; and,
as of the Fifth Amendment Effective Date, the amount (in Dollars) of the respective
German Revolving Commitment of each Permanent Lender that has made such a commitment
is also set forth in Annex A hereto. The German Revolving Commitment of
each Permanent Lender may be reduced pursuant to Section 6. The German
Revolving Commitment(s) of the applicable
assigning and assignee Permanent Lender shall be adjusted to give effect to any
assignments of a German Revolving Commitment(s) pursuant to Section 15.6.1.
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German Revolving Commitments or the German Revolving Loan
Commitments means, collectively, the aggregate amount, at the applicable time,
of all German Revolving Commitments of all Permanent Lenders. The initial aggregate
amount of the German Revolving Commitments shall be $15,000,000 and, as of the Fifth
Amendment Effective Date, the aggregate amount of the German Revolving Commitments
shall be $5,000,000.
Loan Documents means this Agreement, the Notes, the Letters of Credit,
the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter,
the Collateral Documents, any applicable subordination agreements (if any), and all
documents, instruments and agreements at any time delivered in connection with the
foregoing.
Obligations means all obligations (monetary (including post-petition
interest, allowed or not) or otherwise) of any Loan Party under this Agreement and
any other Loan Document including Attorney Costs and any reimbursement obligations
of each Loan Party in respect of Letters of Credit (including those to the Issuing
Lender or any other applicable Person) and surety bonds, all Hedging Obligations of
any Loan Party permitted hereunder which are owed to any Lender or its Affiliate or
the Administrative Agent (whether or not such Lender or the Person acting as
Administrative Agent subsequently is no longer a party to this Agreement), and all
Bank Product Obligations, all in each case howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing, or
due or to become due.
Parent Revolving Commitment or Parent Revolving Loan Commitment
means, with respect to a Permanent Lender at the applicable time, the commitment of
such Permanent Lender to make Parent Revolving Loans. The initial amount (in
Dollars) of the respective Parent Revolving Commitment of each initial Permanent
Lender that made such a commitment is set forth in Annex A hereto; and, as
of the Fifth Amendment Effective Date, the amount (in Dollars) of the respective
Parent Revolving Commitment of each Permanent Lender that has made such a commitment
is also set forth in Annex A hereto. The Parent Revolving Commitment of
each Permanent Lender may be reduced pursuant to Section 6. The Parent
Revolving Commitment(s) of the applicable assigning and assignee Permanent Lender
shall be adjusted to give effect to any assignments of a Parent Revolving Commitment
pursuant to Section 15.6.1.
Rabbi Trust Existing Contributions means cash contributions made by the
Parent to the Rabbi Trust prior to the Closing Date and aggregating no more than
$1,250,000.
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Rabbi Trust Permitted Payments shall mean the following contributions
to the Rabbi Trust made after the Closing Date: (a) cash contributions made prior to
January 1, 2009 in compliance with the terms and provisions of this Agreement
(as it existed at the time of such contributions) and (b) upon the occurrence of a
Potential Change of Control (as defined in the Rabbi Trust Agreement as constituted
on November 21, 2006) the Parent shall be permitted to make those contributions
required to be made (as a result of the Potential Change of Control) under the Rabbi
Trust Agreement (as constituted on November 21, 2006).
Required Lenders means Permanent Lenders whose Pro Rata Shares are
equal (in the aggregate) to at least
662/3% as determined pursuant to clause (d) of
the definition of “Pro Rata Share”.
Specified Permitted Redemption means (i) the $1,721,000 of redemptions
consummated by the Parent prior to February 26, 2008 pursuant to the Announced 1999
Stock Repurchase Program (as defined below) and (ii) redemptions (if any) by the
Parent, on or after February 26, 2008 and prior to January 1, 2009, of shares of the
Parent’s Class A Common Stock in compliance with the terms and provisions of this
Agreement (as it existed at the time of such redemption). The “Announced 1999
Stock Repurchase Program” means the stock repurchase program announced by the
Parent on November 3, 1999 pursuant to which program the Parent was authorized
(pursuant to prior resolutions adopted by the Parent’s Board of Directors) to
utilize up to $5,000,000 to repurchase its Class A Common Stock. Borrowers
acknowledge and agree that no Specified Permitted Redemptions are permitted to be
made after January 1, 2009.
Total Debt to EBITDA Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (a) Total Debt as of such day to (b) EBITDA for the Four
Fiscal Quarter Computation Period ending on such day.
2.03 Amendment to Section 1.1: Amendment of Interest Period Definition. Section
1.1 of the Credit Agreement is hereby amended by amending the definition “Interest Period” as
follows:
The definition of “Interest Period” in Section 1.1 of the Credit
Agreement is hereby amended by deleting “one, two, three or six months
thereafter as selected” where it appears therein, and inserting, in lieu
thereof, “(i) prior to the Fifth Amendment Effective Date, one (1), two (2),
three (3) or six (6) months thereafter and (ii) on or after the Fifth
Amendment Effective Date, one (1) month thereafter (unless additional
periods are otherwise consented to as Interest Periods by the Required
Lenders in their sole discretion), as selected (to the extent available)”.
2.04 Amendment to Section 1.1: Amendment to Definition of Change of Control. The
definition of Change of Control in Section 1.1 of the Credit Agreement is hereby amended by
deleting the phrase “any Change of Control as defined in the Rabbi Trust Agreement” and inserting
in lieu thereof the phrase “any Change of Control or Potential Change of Control as those terms are
respectively defined in the Rabbi Trust Agreement”.
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2.05 Amendment to Section 1.1: Deletion of Definitions. Section 1.1 of the
Credit Agreement is hereby amended by deleting the definition “Computation Period”.
2.06 Amendment to Section 2.1.2. Section 2.1.2 of the Credit Agreement is
hereby amended by deleting the last sentence thereof and substituting in lieu thereof the
following:
The Parent Revolving Loans may (i) before the Fifth Amendment Effective Date, be
borrowed in Dollars or Euros and (ii) on or after the Fifth Amendment Effective Date, only
be borrowed in Dollars. In addition to (and not in impairment of) any other limitation on
the borrowing of the Parent Revolving Loans contained in this Agreement, the Parent agrees
to also comply with the limitations set forth in Section 11.14.6(b).
2.07 Amendment to Section 2.1.3. Section 2.1.3 of the Credit Agreement is
hereby amended as follows:
(a) by amending and restating clause (ii) of the first sentence thereof to read in its
entirety as follows:
(ii)(a) after the Initial German Revolving Loan, only the German
Opcos shall be permitted to borrow German Revolving Loans and (b) on
or after March 31, 2009, only BGG shall be permitted to borrow
German Revolving Loans,
and
(b) by adding the following sentence to the end thereof:
In addition to (and not in impairment of) any other limitation on the borrowing
of German Revolving Loans contained in this Agreement, BGG agrees to also comply
with the limitations set forth in Section 11.14.6(b).
2.08 Amendment to Section 2.1.5. Section 2.1.5 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
2.1.5 L/C Commitments. Subject to Section 2.3.1, the Issuing Lender
agrees to issue letters of credit, in each case containing such terms and conditions as are
permitted by this Agreement and are reasonably satisfactory to the Issuing Lender (each, a
“Letter of Credit”), at the request of and for the account of the Parent or a German
Opco (except that on or after the Fifth Amendment Effective Date Oxy-Dry GmbH may not
request or have issued on its account a Letter of Credit), as the case may be, from time to
time before the scheduled Termination Date and, as more fully set forth in
Section 2.3.2, each Permanent Lender with a Parent Revolving Commitment agrees to
purchase a participation in each Parent Letter of Credit (and such obligation to so purchase
shall not be impaired by any termination of the Parent Revolving Commitments) and each
Permanent Lender with a German Revolving Commitment agrees to purchase a participation in
each German Letter of Credit (and such obligation to so purchase shall not be impaired by
any termination of the German Revolving Commitments); provided that, the Issuing
Lender shall have no obligation to issue or increase any Letter of
Credit (and the
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applicable Borrower shall have no right to request such issuance or increase),
unless (among other conditions precedent) (i) the aggregate Dollar Equivalent (as of the
most recent Revaluation Date) of the Parent Stated Amounts and the German Stated Amounts
shall not exceed $6,000,000, (ii) the Dollar Equivalent (as of the most recent Revaluation
Date) of all Parent Revolving Outstandings shall not exceed the Parent Revolving Loan
Commitments (in Dollars), (iii) the Dollar Equivalent (as of the most recent Revaluation
Date) of all German Revolving Outstandings shall not exceed the German Revolving Loan
Commitments (in Dollars), and (iv) the Dollar Equivalent (as of the most recent Revaluation
Date) of Revolving Outstandings shall not exceed the Revolving Commitments (in Dollars). In
addition to (and not in impairment of) any other limitations under the Agreement with
respect to the issuance (or increase) of any Letter of Credit, (i) the Borrowers agree to
also comply with the applicable limitations set forth in Section 11.14.6(b) or (ii)
if any Lender (other than the Issuing Lender) has failed to make a required Loan hereunder
or has failed to make any required payment to the Administrative Agent or the Issuing Lender
or otherwise failed to make a required payment hereunder the Issuing Lender shall not be
required to issue (or increase) any Letter of Credit. The Letters of Credit shall include
the Initial Letters of Credit. The Initial Letters of Credit (to the extent issued) shall
be part of the Parent Letters of Credit (and the Master Letter of Credit Agreement executed
by the Parent shall cover, among other things, the Initial Letters of Credit (to the extent
issued) as well as any other Parent Letters of Credit). The Parent Letters of Credit may
only (i) before the Fifth Amendment Effective Date, be issued in Dollars or Euros and (ii)
on or after the Fifth Amendment Effective Date be issued in Dollars. The German Letters of
Credit may only be issued in Dollars or Euros.
2.09 Amendment to Section 2.3.1. Section 2.3.1 of the Credit Agreement is
hereby amended by adding to the end thereof the following sentence: “It is hereby acknowledged and
agreed that failure by Parent or any German Opco to execute a Master Letter of Credit Agreement
shall not limit or otherwise impair the obligations of the Borrowers, any Subsidiary thereof or any
other party under this Agreement or any other Loan Document with respect to any Letter of Credit.”
2.10 Amendment to Section 5.1. Section 5.1 of the Credit Agreement is hereby
amended by adding the following sentence immediately after the third sentence of Section
5.1 and immediately before the fourth sentence of Section 5.1:
(For the avoidance of doubt, Borrowers acknowledge and agree that the limitations
on borrowings set forth in Section 11.14.6 shall not, and shall not be
interpreted to, limit the non-use fees payable under this Section 5.1.)
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2.11 Amendment to Section 6.2.2. Section 6.2.2 of the Credit Agreement is
hereby amended as follows:
(a) by adding the following new clauses (iv) and (v) to paragraph (a) therein as
follows:
| (iv) | Within three (3) Business Days of the receipt
by the Parent or any Subsidiary of the Parent of any Technotrans
Litigation Net Proceeds, in an amount equal to 100% of such Technotrans
Litigation Net Proceeds. |
| (v) | On or before October 10, 2010, in an amount equal
to fifty percent (50%) of the Excess Cash Flow for the Fiscal Year
ending June 30, 2010. |
and
| (b) | by adding the following to the end of paragraph (b) of such Section 6.2.2: |
In addition to, and not in limitation of, any other mandatory prepayment
provisions set forth in this Agreement, if at any time (as of the most
recent Revaluation Date) the Dollar Equivalent of all Revolving Outstandings
at any time in the period from (and including) the Fifth Amendment Effective
Date to (and including) November 16, 2010 exceeds 105% of the Specified
Currency Prepayment Amount, the Parent shall immediately cause the
prepayment of the Revolving Loans and Cash Collateralization of the
outstanding Letters of Credit, or do a combination of the foregoing
(provided, that if so instructed by the Administrative Agent, prepayments
shall be made to eliminate the excess before any Cash Collateralization), in
an amount sufficient to eliminate such excess. Nothing contained in this
Section 6.2.2(b) shall, or shall be interpreted to, impair any
limitation contained in this Agreement on the borrowing of Revolving Loans
or the issuance or increase of any Letters of Credit. Notwithstanding
anything contained in Section 6.2.2(d) to the contrary, the Parent
shall not have the option provided for in Section 6.2.2(d) with
respect to a prepayment required under the third sentence of this
Section 6.2.2(b) unless the Administrative Agent in its absolute
discretion permits the Parent to use such option.
2.12 Amendment to Section 9.4. Section 9.4 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
9.4 Financial Condition.
The audited consolidated financial statements of the Parent and its
Subsidiaries as at (and for the Fiscal Years ended) June 30, 2007 and June
30, 2008, and the unaudited consolidated financial statements of the Parent
and its Subsidiaries as at (and for the nine months ended) March 31, 2009,
copies of each of which have been delivered to the Administrative Agent and
each Lender, were prepared in accordance with GAAP (subject, in the case of
such unaudited statements, to the absence of footnotes and to normal
year-end adjustments) and present fairly, in all material respects, the
consolidated financial condition of the Parent and its
Subsidiaries as at such dates and the results of their operations and cash
flows for the periods then ended.
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2.13 Amendment to Section 9.5. Section 9.5 of the Credit Agreement is hereby
amended by deleting the date “September 30, 2006” and inserting the date “March 31, 2009”.
2.14 Amendment to Section 9.26. Section 9.26 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
9.26 Certain Rabbi Trust Payments. To the best knowledge of the
Parent, as of the Fifth Amendment Effective Date the amount of aggregate
remaining cash contributions necessary to fully fund the projected
liabilities under the Plans (as defined in the Rabbi Trust Agreement) would
not exceed $3,700,000.
2.15 Amendment to Section 10.1.3. Section 10.1.3 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
10.1.3 Compliance Certificates. Contemporaneously with the furnishing of a
copy of each annual audit report pursuant to Section 10.1.1 and each set of
quarterly statements pursuant to Section 10.1.2, an accompanying duly
completed Compliance Certificate, with appropriate insertions and signed by a Senior
Officer of the Parent, containing (i) a computation of all applicable financial
covenants and restrictions set forth in Section 11.14 (except for the
Currency Adjusted Net Sales financial covenant under Section 11.14.4 and
the minimum liquidity financial covenant under Section 11.14.6, it being
agreed that Section 10.1.6(a) shall cover the certifications as to the
calculation of such financial covenants), (ii) a statement that such officer has not
become aware of any Event of Default or Unmatured Event of Default that has occurred
and is continuing or, if there is any such event, describing it and the steps, if
any, being taken to cure it, and (iii) a written statement of the Parent’s
management setting forth a discussion of the financial condition, changes in
financial condition and results of operations of the Parent and its Subsidiaries.
In addition, to, and not in limitation of, any obligations under the immediately
preceding sentence, the Compliance Certificate delivered in connection with
quarterly statements (A) for each of the first three Fiscal Quarters of the Fiscal
Year ending June 30, 2010 shall also contain a separate computation of the Capital
Expenditures for such Fiscal Quarter and for the elapsed portion of such Fiscal Year
ending with such Fiscal Quarter and (B) for the Fiscal Quarter ending September 30,
2010 shall also contain a separate computation of EBITDA for such Fiscal Quarter.
-12-
2.16 Amendment to Section 10.1.6. Section 10.1.6 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
10.1.6 Certain Additional Deliverables.
(a) Within 30 days after the end of each month (commencing with the month of
July of 2009 and ending (in the case of clauses (i) and (ii) below) with the
month of September of 2010 and ending (in the case of clause (iii) below)
with the month of November of 2010), a duly completed Minimum Liquidity and
Currency Adjusted Net Sales Certificate, with appropriate insertions and
signed by a Senior Officer of the Parent (i) attaching (and certifying as
to) a report (in detail reasonably satisfactory to the Administrative Agent
including a breakdown of actual consolidated net sales of the Parent and its
Subsidiaries by currency and comparing such actual net sales to “budgeted”
net sales and showing (for all sales made on or after July 1, 2009) the
conversion of net sales in all applicable foreign currencies using the
Specified Assumed Exchange Rates (and showing for sales for June of 2009 the
applicable exchange rates referred to in the definition of Currency Adjusted
Net Sales for such sales) in order to obtain the applicable Currency
Adjusted Net Sales) of the Currency Adjusted Net Sales for such month and
for the Currency Adjusted Net Sales for the consecutive three (3) month
period ending with such month, (ii) certifying as to whether or not the
applicable Currency Adjusted Net Sales financial covenant in Section
11.14.4 for the three (3) months ending on such date has been satisfied
and (iii) certifying (in detail reasonably satisfactory to the
Administrative Agent) as to whether or not the minimum liquidity financial
covenant set forth in Section 11.14.6 and any prepayment
requirements under the third sentence of Section 6.2.2(b) have each
been satisfied;
(b) Within 15 days after the end of each month (commencing with the month of
July of 2009), a so-called “flash report” (in the same form as flash reports
delivered to the Administrative Agent and Lenders prior to the Fifth
Amendment Effective Date with such adjustments thereto as may reasonably be
required by the Administrative Agent) showing the preliminary Currency
Adjusted Net Sales figures for such month;
(c) On a bi-weekly basis, rolling updated 13-week cash flow forecasts for
the Parent and its Subsidiaries and accompanying “forecasting accuracy”
schedule (such forecasts and schedule to be in the same format as the
13-week cash flow forecasts and forecasting accuracy schedules delivered to
the Administrative Agent and the Lenders prior to the Fifth Amendment
Effective Date); and
(d) At the earlier of (i) the making of any mandatory prepayment pursuant
to Section 6.2.2(a)(v) or (ii) October 10, 2010, a certificate
(signed by a Senior Officer of the Parent) setting forth (in detail
reasonably satisfactory to the Administrative Agent) the Excess Cash Flow
for the Fiscal Year ending June 30, 2010.
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2.17 Amendment to Section 10.1.8. Section 10.1.8 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
| 10.1.8 | Projections. As soon as practicable, and in any event (i) for the
Fiscal Year commencing July 1, 2010, no later than June 15, 2010, and (ii) for
any Fiscal Year other than the Fiscal Year commencing July 1, 2010, no later
than the last Business Day of the first month of such Fiscal Year, financial
projections for the Parent and its Subsidiaries for such Fiscal Year (including
quarterly operating and cash flow budgets) prepared in a manner consistent with
the projections delivered by the Parent to the Lenders prior to the Fifth
Amendment Effective Date, or otherwise in a manner reasonably satisfactory to
the Administrative Agent, accompanied by a certificate of a Senior Officer of
the Parent on behalf of the Parent to the effect that (a) such projections were
prepared by the Parent in good faith, (b) the Parent believes the assumptions
contained in such projections are reasonable and (c) such projections have been
prepared in accordance with such assumptions. |
2.18 Amendment to Section 10.2. Section 10.2 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Keep, and cause each Subsidiary of the Parent to keep, its books and
records in accordance with sound business practices sufficient to allow the
preparation of financial statements in accordance with GAAP; permit, and
cause each Subsidiary of the Parent to permit, any Lender or the
Administrative Agent or any representative thereof, during reasonable
business hours and upon reasonable notice (provided that no notice need be
given during the existence of an Event of Default), to inspect the
properties and operations of the Parent or any of its Subsidiaries and
permit, and cause each Subsidiary of the Parent to permit, at any
reasonable time and with reasonable notice (or at any time without notice
if an Event of Default exists), any Lender or the Administrative Agent or
any representative thereof to visit any or all of its offices, to discuss
its financial matters with its officers and its independent auditors (and
the Borrowers hereby authorize such independent auditors to discuss such
financial matters with any Lender or the Administrative Agent or any
representative thereof), and to examine (and, at the expense of the
Borrowers, photocopy extracts from) any of its books or other records; and
permit, and cause each Subsidiary of the Parent to permit, the
Administrative Agent and its representatives during reasonable business
hours and upon reasonable notice (provided, that no notice need be given
during the existence of an Event of Default), to inspect the Inventory and
other tangible assets of the Parent and its Subsidiaries, and to inspect,
audit, check and make copies of and extracts from the books, records,
computer data, computer programs, journals, orders, receipts,
correspondence and other data relating to Inventory, Accounts and other
assets or the operations of the Parent and its Subsidiaries. All such
inspections or audits by the Administrative Agent shall be at the Parent’s
expense. If any Event of Default exists or if any Borrower requests any
modification of the Loan Documents, the Administrative Agent (or its
legal counsel) may, in addition to any other rights and remedies provided
for herein, retain an outside financial advisor with respect to any matters
relating to the Parent or its Subsidiaries (and/or the Loan Documents), and
the Parent shall pay the reasonable fees (and disbursements) of such
advisor.
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2.19 Amendment to Section 10.6. Section 10.6 of the Credit Agreement is
hereby amended by adding to the end thereof the following sentence: “In addition to (and not in
impairment of) any other limitations set forth herein, no Revolving Loans proceeds shall be used to
fund any Rabbi Trust Permitted Payments made after January 1, 2009.”
2.20 Amendment to Section 10.9. Section 10.9 of the Credit Agreement is
hereby amended by adding the following sentence to the end thereof: “Upon receipt by the applicable
Borrower(s) of an affidavit and indemnity agreement in customary form from an authorized
representative of any Lender stating the circumstances of the loss, theft, destruction or
mutilation of any Note (and in the case of any such mutilation, on surrender and cancellation of
such Note) and providing for customary indemnification resulting from the loss of such Note, the
applicable Borrower(s) will promptly execute and deliver, in substitution for same, a new Note of
like tenor.”
2.21 Amendment to Section 10.10. Section 10.10 of the Credit Agreement is
hereby amended by adding to the end thereof, but before the period, the following parenthetical
phrase: “(the German Borrowers shall also comply with any provisions in the “German Opco Security
Documents” (as defined in the Guaranty and Collateral Agreement) with respect to deposit
accounts)”.
2.22 Amendment to Section 11.1. Section 11.1 of the Credit Agreement is
hereby amended by:
(a) deleting the amount “$2,500,000” in Section 11.1(b) and
inserting in lieu thereof the amount $1,000,000”.
(b) amending Section 11.1(d) by inserting the following phrase at
the end thereof immediately after the phrase “that is also not a Material
Subsidiary;”:
“provided, further, that in addition to (and not in
limitation of) any of the other restrictions set forth above
or otherwise contained in this Agreement (x) any Debt
incurred under the preceding clauses (ii) or (iii) on or
after March 31, 2009 must be incurred in the ordinary course
of business of the Parent and its Subsidiaries and be
consistent with the practices of the Parent and its
Subsidiaries prior to March 31, 2009 and (y) Xxxxxxx-Japan,
Ltd. shall not be permitted to incur (i.e. become liable
under) any Debt under this Section 11.1(d) on or
after March 31, 2009;”
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(c) amending and restating Section 11.1(f) to read in its entirety as
follows:
(f) Debt consisting of reimbursement obligations with
respect to bank guaranties issued by one or more Swedish
banks in the ordinary course of business and securing the
performance obligations (under contracts entered into in the
ordinary course of business) of Xxxxxxx Jimek AB;
provided, that (i) such reimbursement obligations
are secured only by the Swedish Letter of Credit (as defined
in Amendment No. 5) and (ii) the aggregate sum of (A) the
aggregate outstanding amounts of such bank guaranties and
(B) the aggregate sum of any outstanding reimbursement
obligations with respect any amounts drawn on such bank
guaranties shall not exceed, at any one time outstanding,
15,000,000 Swedish Krona;
and
(d) amending and restating Section 11.1(i) to read in its entirety as
follows:
(i) reimbursement obligations with respect to bank
guaranties issued by one or more German banks in the
ordinary course of business and securing the performance
obligations (under contracts entered into in the ordinary
course of business) of the German Opcos and, if applicable,
any other European Foreign Subsidiary (including the
Existing German Bank Guaranty Obligations as defined in
Section 7.03 of Amendment No. 5) provided, that (i)
such reimbursement obligations are either unsecured or
secured only by the pledge of cash deposits (held with the
bank(s) issuing such bank guaranties) in an aggregate amount
no greater than the then outstanding amount of such bank
guaranties (limited as provided in clause (ii) below) that
such pledged cash deposits secure and (ii) the aggregate sum
of (A) the aggregate outstanding amounts of such bank
guaranties and (B) the aggregate sum of any outstanding
reimbursement obligations with respect any amounts drawn on
such bank guaranties shall not exceed, at any one time
outstanding, the Dollar Equivalent of $1,000,000;
2.23 Amendment to Section 11.2. Section 11.2(b) of the Credit Agreement is
hereby amended by adding to the end thereof the following phrase immediately after the phrase
“adequate reserves;”: “and the pledges of cash deposits referred to in subclause (a) of Section
11.1(i) as limited by subclause (b) of Section 11.1(i);”.
2.24 Amendment to Section 11.4. Section 11.4 of the Credit Agreement is
hereby amended by (a) inserting at the end of clause (iii) thereof immediately before “, and” the
phrase “may be made” and (b) deleting the phrase “distributions by” in clause (iv) thereof and
inserting in lieu thereof the phrase “distributions may be made by”.
-16-
2.25 Amendment to Section 11.5. Section 11.5 of the Credit Agreement is
hereby amended by (a) amending and restating clause (v) thereof to read in its entirety as follows:
“(v) [Reserved];”, (b) deleting the phrase “the sale of” in clause (vi) thereof and inserting in
lieu thereof the phrase “the sale, prior to March 31, 2009, of” and (c) deleting the phrase “any
Acquisition” in clause (vii) thereof and inserting in lieu thereof the phrase “any Acquisition,
consummated prior to March 31, 2009,”. The Borrowers acknowledge and agree that as a result of the
modification of clause (v) of Section 11.5 of the Credit Agreement set forth above (1) the
sale of Oxy-Dry Food Blends, Inc. is not permitted (unless such sale is hereafter consented to in
writing by the Required Lenders in their absolute discretion) and (2) the parenthetical phrase
“(subject to clause (v) of Section 11.5)” contained in Section 6.2.2(a)(i) of the
Credit Agreement is no longer applicable.
2.26 Amendment to Section 11.11. Section 11.11 of the Credit Agreement is
hereby amended by:
(a) Amending Section 11.11(a) by inserting the following phrase at
the end thereof immediately after the phrase “of this Section
11.11(a);”: “provided, further, that in addition to (and not in
limitation of) any of the other restrictions set forth above in this
Section 11.11(a) or otherwise contained in this Agreement (1) the
contributions made under the preceding clauses (ii) and (iii) of this
Section 11.11(a) on or after March 31, 2009 must be incurred in the
ordinary course of business of the Parent and its Subsidiaries and
consistent with the practices of the Parent and its Subsidiaries prior to
March 31, 2009 and (2) no capital contributions may be made to
Xxxxxxx-Japan, Ltd. on or after March 31, 2009;”;
and
(b) Deleting the phrase “other Investments not consisting of” in clause (j)
thereof and inserting in lieu thereof the phrase “other Investments
consummated prior to March 31, 2009 and not consisting of”.
2.27 Amendment to Section 11.14. Section 11.14 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
11.14 Financial Covenants.
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11.14.1 EBITDA. Not Permit EBITDA for the following periods to be
less than the following respective amounts of minimum EBITDA set forth below
for such period:
| Period | Minimum EBITDA | |||
The two consecutive Fiscal Quarters ending December 31, 2009 |
$ | 1,100,000 | ||
The three consecutive Fiscal Quarters ending March 31, 2010 |
$ | 2,300,000 | ||
The four consecutive Fiscal Quarters ending June 30, 2010 |
$ | 4,100,000 | ||
Each Four Fiscal Quarter Computation Period ending on or
after September 30, 2010 |
$ | 12,000,000 | ||
11.14.2 Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio for any Four Fiscal Quarter Computation Period, commencing
with the Four Fiscal Quarter Computation Period ending September 30, 2010,
to be less than 1.25 to 1.0
11.14.3 Total Debt to EBITDA Ratio. Not permit the Total Debt to
EBITDA Ratio as of the last day of any Four Fiscal Quarter Computation
Period, commencing with the Four Fiscal Quarter Computation Period ending
September 30, 2010, to exceed 3.00 to 1.0.
11.14.4 Currency Adjusted Net Sales. Not permit Currency Adjusted
Net Sales for the following consecutive three-month periods to be less than
the following respective amounts set forth below for such three-month
period:
| Minimum Currency Adjusted | ||||
| Consecutive Three Months Ending | Net Sales for the Applicable Period | |||
July 31, 2009 |
$ | 35,152,500 | ||
August 31, 2009 |
$ | 33,100,500 | ||
September 30, 2009 |
$ | 33,525,500 | ||
October 31, 2009 |
$ | 38,165,100 | ||
November 30, 2009 |
$ | 38,687,300 | ||
December 31, 2009 |
$ | 36,116,300 | ||
January 31, 2010 |
$ | 33,658,800 | ||
February 28, 2010 |
$ | 33,890,400 | ||
March 31, 2010 |
$ | 37,709,300 | ||
April 30, 2010 |
$ | 40,563,300 | ||
May 31, 2010 |
$ | 40,080,000 | ||
June 30, 2010 |
$ | 40,612,800 | ||
July 31, 2010 |
$ | 37,000,000 | ||
August 31, 2010 |
$ | 36,300,000 | ||
September 30, 2010 |
$ | 35,100,000 | ||
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11.14.5 Capital Expenditures. Not permit Capital Expenditures of
the Parent and its Subsidiaries on a consolidated basis for the Fiscal Year
ending June 30, 2010 to exceed $1,000,000.
11.14.6 Minimum Liquidity.
(a) Not permit the Dollar Equivalent of the consolidated cash and Cash
Equivalent Investments of the Parent and its Domestic Subsidiaries and the
European Foreign Subsidiaries of the Parent, in each case unrestricted and
without any Liens thereon except in favor of the Administrative Agent and
maintained in a deposit account (or money market type account linked to a
deposit account), to at any time on or after the Fifth Amendment Effective
Date to (and including) November 16, 2010 be less than $300,000; and
(b) Neither the Parent nor BGG shall, on or after the Fifth Amendment
Effective Date to (and including) November 16, 2010 (i) make any borrowing
of a Revolving Loan or request the issuance of or increase in any Letter of
Credit if immediately after such borrowing, issuance or increase, as the
case may be, the sum of (i) the Dollar Equivalent of all Revolving
Outstandings plus (ii) the then applicable Specified Availability Amount
exceeds $25,000,000. Nothing contained in this Section 11.14.6(b)
shall, or shall be interpreted to, impair any other limitation contained in
this Agreement with respect to the borrowing of Revolving Loans or the
issuance or increase of any Letters of Credit.
2.28 Amendment to Section 11.17. Section 11.17 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
11.17 Payments on the Rabbi Trust; Amendment to Eliminate Insurance
Policies from Rabbi Trust. Not, and not permit any Subsidiary to, make
any payment, contribution or other transfer of monies or other properties
to the Rabbi Trust other than (i) the Rabbi Trust Existing Contributions
and (ii) the Rabbi Trust Permitted Payments. The Parent shall cause an
amendment to the Rabbi Trust Agreement eliminating the obligation of the
Parent (or any Subsidiary of the Parent) to deliver the Insurance Policies
(as defined in the Rabbi Trust Agreement prior to such amendment) and
otherwise removing references to such Policies and the obligations with
respect thereto to be executed and delivered no later than September 30,
2009, such amendment to be in form and substance reasonably satisfactory to
the Administrative Agent.
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2.29 Amendment to Section 13.1.5. Section 13.1.5 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
13.1.5. Non-Compliance with Loan Documents. (a) Failure by any Loan
Party to comply with or to perform any covenant set forth in Sections
10.1.5, 10.1.6(d), 10.3(b) (unless such failure with respect to
Section 10.3(b) is of a non-material nature in which case such
failure shall be covered by clause (d) below), 10.5 or 10.6
or Section 11; (b) failure of any Loan Party to comply with any
provisions of the Agent Fee Letter (and not constituting an Event of Default
under any other provision of this Section 13 above) and the
continuance of such failure described in this clause (b) for 20 days after
the earlier to occur of (i) any Lender or the Administrative Agent providing
notice of such failure or (ii) any Senior Officer of the Parent or any of
its Subsidiaries becoming aware of such failure; (c) failure by any Loan
Party to comply with or to perform any covenant set forth in Sections
10.1.1, 10.1.2, 10.1.3, 10.1.4, 10.1.6 (except 10.1.6(d)), 10.1.7, 10.1.8
10.1.9 or 10.1.10 and continuance of such failure described in
this clause (c) for 10 Business Days, (except that in the case of a
failure with respect to Section 10.1.6 covered by this clause (c)
the period shall be 5 Business Days not 10 Business Days) after the earlier
to occur of (i) any Lender or the Administrative Agent providing notice of
such failure or (ii) any Senior Officer or the Parent or any of its Material
Subsidiaries becoming aware of such failure; or (d) failure by any Loan
Party to comply with or to perform any other provision of this Agreement or
any other Loan Document (and not constituting an Event of Default under any
other provision of this Section 13) and continuance of such failure
described in this clause (d) for 30 days after the earlier to occur
of (i) any Lender or the Administrative Agent providing notice of such
failure or (ii) any Senior Officer or the Parent or any of its Material
Subsidiaries becoming aware of such failure.
2.30 Amendment to Section 15.5. Section 15.5 of the Credit Agreement is
hereby amended by deleting the phrase “acting it is” in the third sentence thereof and inserting in
lieu thereof the phrase “acting in its”.
2.31 Amendment to Section 15.17. Section 15.17 of the Credit Agreement is
hereby amended by amending and restating clause (E) thereof (which clause (E) commences with “(E)
THE EXECUTION” and ends with “BY ANY OF THE LENDER PARTIES,” to read in its entirety as follows:
“(E) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER AGREEMENT OR
INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, THE NON-PERFORMANCE BY ANY CREDIT PARTY OF ITS OBLIGATIONS HEREUNDER OR
THEREUNDER, THE ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY ANY LENDER PARTY, THE
MAKING OF ANY LOAN (OR THE USE OR PROPOSED USE OF ANY PROCEEDS OF ANY LOAN), THE ISSUANCE OF ANY
LETTER OF CREDIT (OR THE USE OR PROPOSED USE THEREOF) OR ANY DRAWING (OR REQUESTED DRAWING) UNDER
ANY LETTER OF CREDIT, OR, IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT
THEREOF) AND ITS AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES, THE ADMINISTRATION OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS,”.
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2.32 Amendment to Section 15.21. Section 15.21(a) of the Credit Agreement is
hereby amended by deleting the phrase “or any of the Lenders” in the first sentence thereof and
inserting in lieu thereof the phrase “or any of the Lenders (or their respective Affiliates)”.
2.33 Amendment to Annex A. Annex A to the Credit Agreement is hereby amended
and restated to read in its entirety as set forth in Annex A attached hereto and hereby
made a part hereof.
2.34 Amendment to Exhibit B. Exhibit B to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit B attached hereto and
hereby made a part hereof.
2.35 Amendment to Exhibit C. Exhibit C to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit C attached hereto and
hereby made a part hereof.
2.36 Amendment to Exhibit E. Exhibit E to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit E attached hereto and
hereby made a part hereof.
2.37 Amendment to Exhibit F. Exhibit F to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit F attached hereto and
hereby made a part hereof.
2.38 Amendment to Schedules. The Schedules to the Credit Agreement are hereby amended
by deleting Schedule 11.1 to the Credit Agreement and any reference to such Schedule
11.1 in the Credit Agreement is hereby deleted in each instance and any corresponding
conforming changes in connection therewith shall be deemed made.
2.39 Further Amendments to Credit Agreement. Reference is hereby made to Sections
7.03, Section 7.04 and Section 7.05 of this Amendment and the further
modifications of the Credit Agreement (and any other applicable Loan Document) set forth therein;
and it is hereby agreed that such modifications are in full force and effect.
ARTICLE III
CERTAIN WAIVERS
CERTAIN WAIVERS
3.01 Waiver. The Required Lenders hereby waive the “Specified Events of Default” (as
defined in the Modification and Limited Waiver). The foregoing waivers in this Section
3.01 are limited solely to such “Specified Events of Default” and shall not apply to any other
Events of Default or Unmatured Events of Default which may now or hereafter exist. Without
limiting the generality of the immediately preceding sentence, the Borrowers (and other Credit
Parties) hereby acknowledge and agree that the waivers set forth in the first sentence of this
paragraph do not apply to any breach of Sections 11.14.1, 11.14.2 or 11.14.3 of the Credit
Agreement other than the breach of Section 11.14.1 for the Computation Periods (as defined
in the Credit
Agreement prior to the amendments set forth in this Amendment) ending March 31, 2009 and June
30, 2009, the breach of Section 11.14.2 for the Computation Period ending June 30, 2009,
and the breach of Section 11.4.3 as of the last day of the Computation Periods ending March
31, 2009 and June 30, 2009. Each of the Borrowers and the other Credit Parties hereby consents to,
and acknowledges the availability of, each and every right and remedy set forth in the Credit
Agreement, the Guaranty and Collateral Agreement and the other Loan Documents with respect to any
Event of Default other than the Events of Default expressly waived pursuant to the first sentence
of this paragraph.
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ARTICLE IV
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
4.01 Conditions to Effectiveness. The effectiveness of the amendments set forth in
Sections 2.01 — 2.38 and the waiver set forth in Section 3.01 hereof are subject to
the satisfaction of the following conditions precedent, unless specifically waived in writing by
the Administrative Agent:
(a) The Administrative Agent shall have received the following documents, each in form
and substance satisfactory to the Administrative Agent and its legal counsel:
(i) this Amendment duly executed by Borrowers and the other Credit Parties and
the Lenders constituting at least the Required Lenders;
(ii) the amended and restated Agent Fee Letter; and
(iii) such other documents as reasonably requested by the Administrative Agent;
(b) All corporate (or other organization) proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to the Administrative Agent and its legal
counsel;
(c) Borrowers shall have delivered to the Administrative Agent and the Lenders a “flash
report” reporting the consolidated “Currency Adjusted Net Sales” (as defined in the Credit
Agreement after giving effect to Amendment No. 5) for the month ending June 30, 2009;
(d) Borrowers shall have paid all costs and expenses (including reasonable attorneys’
fees and disbursements) and fees of the Administrative Agent; and
(e) Borrowers shall have paid the first installment of the Amendment Fee as set forth
in Section 5.01.
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ARTICLE V
CERTAIN COVENANTS
CERTAIN COVENANTS
5.01 Amendment Fee. In consideration of the Required Lenders entering into this
Amendment, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Borrowers hereby agree to pay to each Lender who executes and delivers
this Amendment on or before the date hereof, an amendment fee equal to such Lender’s pro-rata share
of the product of (a) the sum of the aggregate Term Loan Exposures of all Lenders on the date
hereof plus the aggregate Revolving Commitments (after giving effect to the reduction of
the Revolving Commitments set forth in this Amendment) of all Lenders on the date hereof multiplied
by (b) 0.75% (i.e., 75 basis points). This amendment fee shall be fully earned on the date
hereof and shall be payable in four (4) equal installment payments, with the first of such payments
due on the date hereof and the next three payments respectively due three (3), six (6) and nine (9)
months following the date hereof. The phrase “pro-rata share” as used in the immediately preceding
sentence shall mean, with respect to any Lender, the percentage obtained by dividing (i) such
Lender’s aggregate Revolving Commitments (as so reduced) plus such Lender’s Term Loan
Exposure as of the date hereof by (ii) the aggregate amount of Revolving Commitments (as so
reduced) of all Lenders plus the Term Loan Exposures of all Lenders as of the date hereof.
Any failure of the Borrowers to pay, when due, any such installments shall constitute an Event of
Default under the Credit Agreement. The term “Amendment Fee” as used herein shall mean the
aggregate amendment fees owed pursuant to this Section 5.01 to those Lenders who execute
and deliver this Amendment.
ARTICLE VI
NO WAIVER
NO WAIVER
6.01 No Waiver. Other than the waivers set forth in Section 3.01 hereof,
nothing contained in this Amendment shall be construed as a waiver by the Administrative Agent or
the Lenders of any covenant or provision of the Credit Agreement, the Guaranty and Collateral
Agreement, this Amendment, the other Loan Documents, or of any other contract or instrument among
the Borrowers and/or the other Credit Parties, as the case may be, and the Administrative Agent
and/or the Lenders (and/or their respective Affiliates), as the case may be, and the failure of the
Administrative Agent and/or Lenders (and/or their respective Affiliates) at any time or times
hereafter to require strict performance by the Borrowers and/or the other Credit Parties of any
provision thereof shall not waive, affect or diminish any right of the Administrative Agent and the
Lenders (or their respective Affiliates) to thereafter demand strict compliance therewith.
ARTICLE VII
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS
7.01 Ratifications. The terms and provisions set forth in this Amendment shall modify
and supersede all inconsistent terms and provisions set forth in Credit Agreement and the other
Loan Documents. The terms and provisions of the Credit Agreement and the other Loan Documents, as
amended hereby, are ratified and confirmed and shall continue in full force and effect. The
Borrowers, the other Credit Parties, the Lenders and the Administrative Agent agree that the Credit
Agreement and the other Loan Documents, as amended hereby, shall continue to be legal, valid,
binding obligations of the parties thereto, enforceable against such parties in accordance with
their respective terms. Without limiting the generality of the foregoing, the Borrowers and the
other Credit Parties hereby confirm and agree that (a) all Liens under the Collateral Documents (as
amended) remain in
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full force and effect (as so amended) and (b) the
guaranty obligations and other obligations of the Borrowers and all other Credit Parties under
the Guaranty and Collateral Agreement (and other applicable Collateral Documents), as amended,
remain in full force and effect (as so amended) and (as set forth in the Guaranty and Collateral
Agreement) shall not be impaired or otherwise limited by any waiver or modification set forth in
this Amendment (and nothing contained in this Amendment shall, or shall be interpreted to, create a
custom, course of dealing or other agreement or arrangement by which the consent or confirmation of
any Credit Party to any modification or waiver is required in order to keep any obligations under
the Guaranty and Collateral Agreement (and other applicable Collateral Documents) in full force and
effect, it being agreed that no such consent or confirmation is necessary or required in order to
keep such obligations in full force and effect). Without limiting the generality of the foregoing
(or of Section 1.2(e) of the Credit Agreement), it is hereby confirmed and agreed that any
reference in the Loan Documents to any Note shall include all amendments, restatements, supplements
and other modifications thereto and any Notes issued under Section 15.6.1 of the Credit
Agreement and/or other Notes in substitution or replacement of any Note(s). Any breach of any
representation, warranty or confirmation set forth in this Amendment by any Borrower or any other
Credit Party shall be deemed to constitute an Event of Default under the Credit Agreement.
7.02 Representations and Warranties. Each of the Borrowers and the other Credit
Parties hereby represents and warrants to the Administrative Agent and the Lenders that (a) the
execution, delivery and performance of this Amendment and any and all Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite corporate (or other
applicable organization) action on the part of such Borrower or other Credit Party, as the case may
be, and will not violate the charter, by-laws or other organizational documents of such Borrower or
other Credit Party; (b) the representations and warranties of such Borrower or other Credit Party,
as the case may be, contained in any Loan Document are true and correct in all respects (or if the
applicable representation or warranty is not qualified by a materiality qualifier, true and correct
in all material respects) on the date hereof and on and as of the date of execution hereof as
though made on and as of each such date (except to the extent stated to relate to a specific
earlier date, in which case such representations and warranties were true and correct in all
respects (or if the applicable representation or warranty is not qualified by a materiality
qualifier, true and correct in all material respects) as of such earlier date); (c) after giving
effect to the waivers set forth in Section 3.01 hereof, no Event of Default or Unmatured
Event of Default under the Credit Agreement has occurred and is continuing; (d) no Specified
Permitted Redemption Payment and no Rabbi Trust Permitted Payment, as each of those terms were
defined in the Credit Agreement prior to this Amendment, were made from (and including) January 1,
2009 to (and including) the date hereof; and (e) no Credit Party that is party to the Guaranty and
Collateral Agreement has changed its legal name since November 21, 2006 except (i) Newco changed
its name from Mainsee 430. VV GmbH to Xxxxxxx Germany Holding GmbH, (ii) Oxy-Dry GmbH changed its
name from Oxy-Dry Maschinen GmbH to Xxxxxxx Oxy-Dry GmbH and (iii) Xxxxxxx Southeast Asia
Corporation changed its name from Oxy-Dry Asia Pacific, Inc.. The Borrowers and the other Credit
Parties acknowledge and agree that the unpaid principal of, and accrued and unpaid interest under,
each of the Loans as of July 31, 2009 is as set forth below and such sums are justly owed without
claim, counterclaim, cross-complaint, offset, defense or other reduction of any kind against the
Lenders or the Administrative Agent:
(a) Parent Revolving Loans borrowed in Dollars: unpaid principal of $12,100,000 and
accrued and unpaid interest of $25,759.56 is owed by the Parent.
(b) Parent
Revolving Loans borrowed in Euros: unpaid principal of €0 and accrued and
unpaid interest of €0 is owed by the Parent.
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(c) German Revolving Loans borrowed by BGG in Dollars: unpaid principal of $0 and
accrued and unpaid interest of $0 is owed by BGG.
(d) German Revolving Loans borrowed by BGG in Euros: unpaid principal of €1,000,000
and accrued and unpaid interest of €1,260 is owed by BGG.
(e) German Revolving Loans borrowed by Oxy-Dry GmbH in Dollars: unpaid principal of $0
and accrued and unpaid interest of $0 is owed by Oxy-Dry GmbH.
(f) German Revolving Loans borrowed by Oxy-Dry GmbH in Euros: unpaid principal of €0
and accrued and unpaid interest of €0 is owed by Oxy-Dry GmbH.
(g) Term Loans: unpaid principal of €7,364,340.98 and accrued and unpaid interest of
€9,279.07 is owed by Newco.
(h) Parent Letters of Credit issued in Dollars: the portion of the Parent Stated Amount
with respect to such Letters of Credit is $382,916.00.
(i) Parent Letters of Credit issued in Swedish Krona: the portion of the Parent Stated
Amount with respect to such Letters of Credit is 5,000,000 Swedish Krona.
(j) Parent Letters of Credit issued in Euros: the portion of the Parent Stated Amount
with respect to such Letters of Credit is €0.
As of the date hereof, (i) Bank of America, N.A., in its capacity as a Lender, owns fifty
percent (50%) of the outstanding Term Loans and outstanding Revolving Loans, (ii) Citizens Bank of
Connecticut as Lender owns thirty percent (30%) of the outstanding Term Loans and outstanding
Revolving Loans and (iii) Xxxxxxx Bank, National Association as Lender owns twenty percent (20%) of
the outstanding Term Loans and Revolving Loans.
7.03 Confirmations (German Master Credit Contract). Reference is made to Amendment
No. 2 and to the Amendment No. 1 to Guaranty and Collateral Agreement. Borrowers hereby confirm,
represent and warrant that the Master Credit Contract referred to in Amendment No. 2 and the
Amendment No. 1 to Guaranty and Collateral Agreement has been terminated and that all obligations
of any Borrower thereunder to the “German Bank” (as defined in Amendment No. 2) have been paid and
satisfied in full other than with respect to guaranty obligations of Borrowers’ customer contracts
in an amount not to exceed $630,000 in the aggregate as of June 30, 2009 (the “Existing German
Bank Guaranty Obligations”) which such Existing German Bank Guaranty Obligations have been cash
collateralized (by the pledge of cash deposits) in an amount equal thereto. Borrowers further
confirm, agree and covenant that the Existing German Bank Guaranty Obligations outstanding from
time to time shall
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“count” towards the $1,000,000 limitation set forth in Section 11.1(i)
of the Credit Agreement, as
amended. As set forth in Amendment No. 2, the Existing German Bank Guaranty Obligations shall
(as shall any other bank guaranties permitted under Section 11.1(i) of the Credit
Agreement, as amended) be deemed part of Debt (and Total Debt). This Section 7.03 and
Section 11.1(i) of the Credit Agreement, as amended, supersede any inconsistent provision
in Amendment No. 1 to Guaranty and Collateral Agreement with respect to the Existing German Bank
Guaranty Obligations. Borrowers further understand and agree that the only Debt permitted under
Section 11.1(i) of the Credit Agreement (and by this Section 7.03) are the bank
guaranties described therein and that no Borrower (including any German Borrower) may enter into
any other master credit contract for any other purpose without the consent of the Required Lenders
(which consent may be granted in their sole discretion).
7.04 Confirmations (Swedish Letter of Credit). Reference is made to the Modification
and Limited Waiver. It is hereby confirmed that the Parent had previously requested, and the
Issuing Lender has issued, a Parent Letter of Credit in the amount of 5,000,000 Swedish Krona
(LaSalle Bank National Association letter of credit #S605274 and Bank of America, N.A. letter of
credit #68030846) (as same may be renewed, extended or otherwise modified from time to time, the
“Swedish Letter of Credit” which term shall also include any letter(s) of credit (if any)
issued (in Swedish Krona) by the Issuing Lender in substitution or replacement thereof or of any
such substitute or replacement letter(s) of credit). It is acknowledged and agreed that the
Swedish Letter of Credit is one of the Parent Letters of Credit and that the terms and provisions
of the Credit Agreement as amended, restated, supplemented or otherwise modified from time to time
(including without limitation Sections 2.1.5 and 2.3 of the Credit Agreement) and
the other Loan Documents shall apply to the Swedish Letter of Credit. The term “Euros” as used in
the Credit Agreement (and any other applicable Loan Document), as amended, restated, supplemented
or otherwise modified from time to time, shall be deemed to mean “Swedish Krona” in connection with
the Swedish Letter of Credit. Without limiting the generality of the immediately preceding
sentence, the Dollar Equivalent of the Stated Amount of the Swedish Letter of Credit shall be the
equivalent amount thereof in Dollars as determined by the Administrative Agent or the Issuing
Lender, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars with Swedish Krona.
7.05 Confirmations (Netherlands Pledge Agreements). Reference is hereby made to
Amendment No. 1 to Guaranty and Collateral Agreement the terms and provisions of which are hereby
confirmed in all respects. Without limiting the generality of the immediately preceding sentence,
it is hereby confirmed and agreed that if any Netherlands Pledge Agreement provides for a lien
priority (as it relates to securing the applicable secured obligations thereunder) that would, if
not for this Section 7.05 (or Section 5.03 of Amendment No. 1 to Guaranty and
Collateral Agreement), result in an application of the proceeds of the collateral or security under
such Netherlands Pledge Agreements that would be different than the order of priority set forth in
Section 6.6 of the Guaranty and Collateral Agreement (as amended), then the parties shall
take such actions (including the applicable Lender(s) purchasing participation interests) so that
such order of priority under such Section 6.6 of the Guaranty and Collateral Agreement is,
in effect, preserved.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
8.01 Survival of Representations and Warranties. All representations and warranties
made in the Credit Agreement or the Guaranty and Collateral Agreement or any other Loan Documents
or under or in connection with this Amendment, including, without limitation, any document
furnished in connection with this Amendment, shall survive the execution and delivery of this
Amendment and the other Loan Documents.
8.02 Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to be invalid or
unenforceable.
8.03 Successors and Assigns. This Amendment is binding upon and shall inure to the
benefit of the Administrative Agent, the Lenders, the Borrowers and the other Credit Parties and
their respective successors and assigns, except that no Borrower or Credit Party may assign or
transfer any of its rights or obligations hereunder without the prior written consent of the
Administrative Agent. It is acknowledged and agreed that Bank of America, N.A., has, as successor
by merger to LaSalle Bank National Association, succeeded to all of the respective rights and
duties of LaSalle Bank National Association as a Lender (including without limitation as the
Issuing Lender), and the Administrative Agent under the Loan Documents.
8.04 Certain Costs and Expenses. Without in any way limiting the generality of
Sections 10.2 or 15.5 of the Credit Agreement, the Parent acknowledges and agrees that it shall (i)
promptly pay the reasonable fees and disbursements of all legal counsel retained by the
Administrative Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment or any future waiver or modification (or proposed modification or waiver whether or
not consummated), if any, of any Loan Document(s) (provided that Borrower shall not have to pay the
allocable costs of internal legal services of the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment provided it is understood and
agreed that this parenthetical phrase shall not, and shall not be interpreted to, limit the right
of the Administrative Agent or any Lender to receive the allocable costs of internal legal services
with respect to agreements or matters other than the preparation, negotiation, execution and
delivery of this Amendment) and (ii) pay all fees of Capstone (as defined in the Modification and
Limited Waiver) required to be paid in the Modification and Limited Waiver. The Borrowers and
other Credit Parties hereby agree that all findings and conclusions and other work product of
Capstone shall be protected by the attorney-client privilege and shall not be subject to review or
discovery by the Borrowers or any other Credit Party.
8.05 Counterparts. This Amendment may be executed and delivered by facsimile,
portable document format (“.pdf”), Tagged Image File Format (“.TIFF”) or other electronic means of
delivery and in one or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same instrument.
-27-
8.06 Preliminary Statements. The Preliminary Statements set forth in this Amendment
are accurate and shall form a substantive part of the agreement of the parties hereto.
8.07 Headings. The headings, captions, and arrangements used in this Amendment are
for convenience only and shall not affect the interpretation of this Amendment.
8.08 Relationship. The relationship between the Borrowers and other Credit Parties on
the one hand and the Lenders and the Administrative Agent on the other hand shall be solely that of
borrowers and guarantors, on the one hand, and lender on the other. Neither the Administrative
Agent nor any Lender has any fiduciary relationship with or duty to any Borrower or other Credit
Party arising out of or in connection with this Amendment or any of the other Loan Documents, and
the relationship between the Borrowers and other Credit Parties, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor. The Borrowers and other Credit Parties acknowledge that they
have been advised by counsel in the negotiation, execution and delivery of this Amendment and the
other Loan Documents. No joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby or by the other Loan Documents
among the Lenders or among the Borrowers (and other Credit Parties) and the Lenders.
8.09 Time is of the Essence. The parties hereto (i) have agreed specifically with
regard to the times for performance set forth herein and in the other Loan Documents and (ii)
acknowledge and agree such times are material to this Amendment and the other Loan Documents.
Therefore, time is of the essence with respect to this Agreement and the other Loan Documents.
8.10 Jury Trial; Indemnification. Without limiting the generality of Sections
15.17, 15.18, 15.19 and 15.20 of the Credit Agreement, it is hereby agreed that the terms and
provisions of such Sections shall apply to this Amendment and any transaction or matter
contemplated by, in connection with or arising out of this Amendment.
8.11 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED PURSUANT HERETO
(EXCEPT AS EXPRESSLY SET FORTH IN ANY SUCH AGREEMENT) SHALL BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
-28-
8.12 Final Agreement. THE CREDIT AGREEMENT (AS AMENDED HEREBY) AND THE OTHER LOAN
DOCUMENTS REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND THEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT (AS AMENDED HEREBY) AND
THE OTHER LOAN DOCUMENTS MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, THE BORROWERS AND THE OTHER
CREDIT
PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER ANY LENDER NOR THE ADMINISTRATIVE AGENT HAS MADE
ANY PROMISES OR ASSURANCES WITH RESPECT TO, AND THE BORROWERS AND OTHER CREDIT PARTIES ACKNOWLEDGE
AND AGREE THAT THERE IS NO ORAL AGREEMENT WITH RESPECT TO, ANY FUTURE AMENDMENT, WAIVER OR OTHER
MODIFICATION OF THE LOAN DOCUMENTS OR ANY RESTRUCTURING OR WORKOUT THEREOF OR WITH RESPECT THERETO.
NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL
BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE BORROWERS AND THE REQUIRED LENDERS AND (WITH
RESPECT TO MATTERS AFFECTING THE ADMINISTRATIVE AGENT) THE ADMINISTRATIVE AGENT AND (WITH RESPECT
TO MATTERS AFFECTING THE ISSUING LENDER) THE ISSUING LENDER.
8.13 Release. EACH OF THE BORROWERS AND THE OTHER CREDIT PARTIES HEREBY ACKNOWLEDGES
THAT, AS OF THE DATE HEREOF, IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED (A) TO REDUCE OR ELIMINATE ALL OR ANY
PART OF ITS APPLICABLE LIABILITIES UNDER ANY LOAN DOCUMENT, ANY BANK PRODUCT AGREEMENT OR ANY
HEDGING AGREEMENT WITH ANY LENDER, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES
AND/OR (B) TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM THE ADMINISTRATIVE
AGENT OR ANY OF THE LENDERS (OR ANY OF THEIR RESPECTIVE AFFILIATES). EACH OF THE BORROWERS AND THE
OTHER CREDIT PARTIES HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE
ADMINISTRATIVE AGENT AND LENDERS, THEIR PREDECESSORS, AGENTS, AFFILIATES, EMPLOYEES, SUCCESSORS AND
ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES,
AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN
PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER OR OTHER CREDIT PARTY
MAY NOW OR HEREAFTER HAVE AGAINST THE ADMINISTRATIVE AGENT, LENDERS, THEIR PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING OUT OF OR OTHERWISE IN
ANY WAY RELATING IN ANY WAY TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, HEDGING AGREEMENT, BANK
PRODUCT AGREEMENT, THE OBLIGATIONS, ANY OTHER TRANSACTION CONTEMPLATED BY ANY OF THE FOREGOING
DOCUMENTS, OR ANY ACTION OR OMISSION OF THE ADMINISTRATIVE AGENT OR ANY LENDER UNDER OR OTHERWISE
IN
-00-
XXX XXX RELATING TO ANY OF THE FOREGOING DOCUMENTS.
THE BORROWERS AND OTHER CREDIT PARTIES
EXPRESSLY WAIVE ANY PROVISION OF STATUTORY OR DECISIONAL LAW TO THE EFFECT THAT A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY(IES) DOES NOT KNOW OR SUSPECT TO EXIST IN SUCH
PARTY’S FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN
BY SUCH PARTY, MUST OR MIGHT HAVE MATERIALLY AFFECTED SUCH PARTY’S SETTLEMENT WITH THE
RELEASED PARTIES. NOTHING CONTAINED IN THIS PARAGRAPH SHALL, OR SHALL BE INTERPRETED TO, IMPAIR
ANY RIGHTS OF ANY BORROWER (OR OTHER CREDIT PARTY) WITH RESPECT TO ANY DEPOSIT OR OTHER BANK
ACCOUNTS OF SUCH BORROWER OR OTHER CREDIT PARTY (OR ANY OF THEIR RESPECTIVE SUBSIDIARIES) WITH ANY
LENDER OR THE ADMINISTRATIVE AGENT.
[Remainder of Page Intentionally Left Blank]
-30-
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the date
first written above.
| XXXXXXX TECHNOLOGY COMPANY, INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | President and Chief Executive Officer | |||||||
| XXXXXXX GERMANY HOLDING GMBH | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | Managing Director | |||||||
| XXXXXXX GERMANY GMBH | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | Managing Director | |||||||
| XXXXXXX OXY-DRY GMBH | ||||||||
| (formerly known as OXY-DRY MASCHINEN GMBH) | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | Managing Director | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| XXXXXXX GRAPHIC SYSTEMS, INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Vice President and Treasurer | |||||||
| OXY-DRY FOOD BLENDS, INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Vice President and Treasurer | |||||||
| OXY-DRY U.K., INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Vice President | |||||||
| XXXXXXX SOUTHEAST ASIA CORPORATION | ||||||||
| (formerly known as Oxy-Dry Asia Pacific, Inc.) | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Vice President | |||||||
| XXXXXXX AMERICAS CORPORATION | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | President | |||||||
| XXXXXXX ASIA PACIFIC CORPORATION | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | President | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| MTC TRADING COMPANY | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | President | |||||||
| OXY-DRY CORPORATION | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | Vice President and Treasurer | |||||||
| XXXXXXX EUROPE CONSOLIDATED INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxxxx | |||||||
| Title: | President | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| XXXXXXX ROCKFORD CORPORATION | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx X. Xxxxxx | |||||||
| Title: | President and CEO | |||||||
| XXXXXXX EUROPE CONSOLIDATED B.V. | ||||||||
| By: | Xxxxxxx Graphic Equipment BV | |||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name(s): | Xxxx X. Xxxxxx | |||||||
| Title: | Managing Director | |||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||
| Name(s): | Xxxxxxx Xxxxxxx | |||||||
| Title: | Managing Director | |||||||
| XXXXXXX GRAPHIC EQUIPMENT B.V. | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name(s): | Xxxx X. Xxxxxx | |||||||
| Title: | Managing Director | |||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||
| Name(s): | Xxxxxxx Xxxxxxx | |||||||
| Title: | Managing Director | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| BANK OF AMERICA, N.A., as Administrative Agent | ||||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||
| Name: | Xxxxxxx Xxxxxxx | |||||||
| Title: | Assistant Vice President | |||||||
| BANK OF AMERICA, N.A., as Lender | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Senior Vice President | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| XXXXXXX BANK, NATIONAL
ASSOCIATION, as Lender |
||||||||
| By: | /s/ X.X. Xxxxxxx | |||||||
| Name: | X.X. Xxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
[Signature Page to Waiver and Amendment No 5. to Credit Agreement]
| CITIZENS BANK OF CONNECTICUT, as Lender | ||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: | Xxxx Xxxxxxx | |||||||
| Title: | Senior Vice President | |||||||
