MODIFICATION AND LIMITED WAIVER AGREEMENT
Exhibit 10.33
EXECUTION COPY
THIS MODIFICATION AND LIMITED WAIVER AGREEMENT (this “Agreement”), dated as of the
March 31, 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, and BANK OF AMERICA, N.A., a national
banking association (as successor-by-merger to LASALLE BANK NATIONAL ASSOCIATION), in its capacity
as a Lender and as Administrative Agent and the other Lenders (as defined in the Credit Agreement
referred to below) signatory hereto. Capitalized terms used in this Agreement and not defined
herein shall have the meanings ascribed to such terms in the Credit Agreement unless otherwise
stated herein.
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 Amendment to Credit Agreement
dated as of December 29, 2006, by a Waiver, Consent and Amendment No. 2, dated as of April 18,
2007, by a Waiver, Consent and Amendment No. 3 to Credit Agreement dated as of January 3, 2008, and
by an Amendment No. 4 to Credit Agreement dated as of February 26, 2008 (as so amended, the
“Credit Agreement”); and
B. The Borrowers, the other Credit Parties and the Administrative Agent are parties to the
Guaranty and Collateral Agreement (as defined in the Credit Agreement); and
C. The Borrowers are in breach of (i) the financial covenant set forth in Section 11.14.1 of
the Credit Agreement with respect to the requirement to not permit EBITDA to be less than
$12,000,000 for the Computation Period ending March 31, 2009 and (ii) Section 11.14.3 of the Credit
Agreement with respect to the requirement to maintain a Total Debt to EBITDA Ratio of not less than
3.50 to 1.0 as of the last day of the Computation Period ending March 31, 2009. Each of the
breaches referred to in clauses (i) and (ii) of the immediately preceding sentence constitute an
Event of Default under Section 13.1.5 of the Credit Agreement (the Events of Default resulting from
such breaches are collectively referred to below as the “Specified Events of Default” and
individually as a “Specified Event of Default”). Each of the Specified Events of Default
would (if not for the limited waiver granted (subject to the terms and conditions hereof) herein)
entitle the Lenders and the Administrative Agent to immediately exercise their respective rights
and remedies under the Loan Documents and applicable law with respect to an Event of Default; and
D. The Borrowers have requested that Lenders representing at least the Required Lenders grant
a limited waiver of the Specified Events of Default; and the Lenders signatory
hereto, representing at least the Required Lenders, are willing to grant such limited waiver,
on the terms and subject to the conditions provided herein.
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
CERTAIN DEFINITIONS
CERTAIN DEFINITIONS
1.01 The term “Limited Waiver Period” shall mean the period from (and including) March
31, 2009 to (and including) May 15, 2009.
1.02 The term “Dollar Equivalent of Euro Revolving Outstandings” shall mean the
aggregate Dollar Equivalent of the sum of (a) the aggregate principal amount of all outstanding
Parent Revolving Loans borrowed in Euros, (b) the Parent Stated Amounts with respect to Parent
Letters of Credit issued in Euros, (c) the aggregate principal amount of all outstanding German
Revolving Loans borrowed in Euros, and (d) the German Stated Amounts with respect to German Letters
of Credit issued in Euros.
ARTICLE II
LIMITED WAIVER
LIMITED WAIVER
2.01 The undersigned Lenders (representing at least the Required Lenders) hereby waive
(subject to the terms and conditions hereof), for the Limited Waiver Period only, the Specified
Events of Default (the waiver granted in this sentence is referred to below as the “Limited
Waiver”). (For the avoidance of doubt, the Required Lenders shall not have the right to impose
during the Limited Waiver Period the additional 2% default rate(s) under Sections 4.1 or 5.2(a) of
the Credit Agreement by reason of the Specified Events of Default but shall have the right to do so
upon the occurrence and during the continuance of any other Event of Default.) The Limited Waiver
is limited solely to the Specified Events of Default and shall not apply to any other Events of
Default and is also limited solely to the Limited Waiver Period and shall not extend to any period
beyond the Limited Waiver Period. Without limiting the generality of the immediately preceding
sentence, the Borrowers (and other Credit Parties) hereby acknowledge and agree that (i) the
Limited Waiver does not apply to any breach of Sections 11.14.1 or 11.14.3 of the Credit Agreement
other than the breach of Section 11.14.1 for the Computation Period ending March 31, 2009 and the
breach of Section 11.4.3 as of the last day of the Computation Period ending March 31, 2009 and
(ii) after the Limited Waiver Period, the Specified Events of Default shall (unless otherwise
hereafter waived in writing by the Required Lenders (it being understood and agreed that any such
waiver would be at the sole and absolute discretion of the Required Lenders and no Lender has any
obligation to grant such waiver)) exist and be continuing Events of Default for all purposes and
the Lenders and the Administrative Agent shall have the right at any time (including immediately)
to exercise any or all of their respective rights and remedies under the Loan Documents and under
applicable law with respect to the Specified Events of Default including without limitation the
right to impose the default rates under Section 4.1 or 5.2(a) of the Credit Agreement, accelerate
any or all the Loans or other Obligations, refuse to make any additional Revolving Loans or to
issue any additional Letters of Credit, terminate
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the Commitments and/or realize on the Collateral. 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 the Specified Events of Default after the Limited Waiver Period.
ARTICLE III
LIMITED WAIVER AND MODIFICATION
LIMITED WAIVER AND MODIFICATION
3.01 Certain Agreements Regarding Limited Waiver Period. In consideration of the Lenders’
granting (subject to the terms and conditions hereof) the Limited Waiver above, each of the
Borrowers and the other Credit Parties hereby acknowledges and agrees as follows:
(a) Notwithstanding anything to the contrary contained in the Credit Agreement, the
Notes or the other Loan Document, the Applicable Margin during the Limited Waiver Period for
all of the Loans and the undrawn amounts of each Letter of Credit, as the case may be, shall
be the following applicable rates per annum:
| LIBOR | Base Rate | Non-Use | L/C Fee | |||||||||
| Margin | Margin | Fee Rate | Rate | |||||||||
4.50% |
3.00 | % | 0.500 | % | 4.50 | % | ||||||
(b) With respect to any LIBOR Loan borrowed or continued during the Limited Waiver
Period, and with respect to any Base Rate Loan converted into a LIBOR Loan during the
Limited Waiver Period, the only Interest Period that may be selected is a period of one
month.
(c) The Borrowers shall not request any Letters of Credit to be issued or to be
extended during the Limited Waiver Period. Oxy-Dry GmbH shall not request any new German
Revolving Loans in the Limited Waiver Period.
(d) No Borrower shall make any borrowing of a Revolving Loan during the Limited Waiver
Period if immediately after such borrowing the Dollar Equivalent of all Revolving
Outstandings shall exceed $17,100,000. In addition to (and not in limitation of) the
restriction set forth in the immediately preceding sentence, (i) no Borrower shall make any
borrowing of a Revolving Loan in Euros during the Limited Waiver Period if immediately after
such borrowing the Dollar Equivalent of Euro Revolving Outstandings exceeds $4,000,000 and
(ii) if at any time(s) during the Limited Waiver Period the Dollar Equivalent of Euro
Revolving Outstandings exceeds $4,000,000 (it being agreed that for purposes of this clause
(ii) the Revaluation Date shall be each day in the Limited Waiver Period), the Parent shall
immediately cause the prepayment (i.e., shall cause a mandatory prepayment) of a
sufficient amount of Revolving Loans borrowed in Euros so that the Dollar Equivalent of Euro
Revolving Outstandings no longer exceed $4,000,000. For the avoidance of doubt, the
provisions of Section 8.4 of the Credit Agreement shall apply to any prepayment made
pursuant to the immediately preceding sentence. Upon the request of the Parent, the
Administrative Agent shall have the right (but not the obligation and shall have no
liability for its refusal to do so) to make the provisions of Section 6.2.2(d)
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of the Credit Agreement apply to any such prepayment with such conforming changes to
Section 6.2.2(d) (as such Section applies to any such prepayment) as the Administrative
Agent shall require in connection with any such prepayment.
(e) No (i) Specified Permitted Redemption shall be made during the Limited Waiver
Period and (ii) Rabbi Trust Permitted Payment under clause (a) of the definition of Rabbi
Trust Permitted Payments shall be made during the Limited Waiver Period. The Borrowers and
other Credit Parties represent and warrant that no Specified Permitted Redemption Payment
and no Rabbi Trust Permitted Payment has been made from (and including) January 1, 2009 to
(and including) the date hereof.
(f) The restrictions and other provisions of (1) the definition of Asset Dispositions
and (2) Sections 10.2, subclauses (v), (vi) and (vii) of Section 11.5, 11.11(a), and
11.11(j) of the Credit Agreement that apply if there is an Event of Default shall be deemed
to apply during the Limited Waiver Period whether or not an Event of Default exists. The
Borrowers also agree that, with respect to any Debt that would otherwise be permitted under
the terms of subclauses (ii) and (iii) of subsections 11.1(d) of the Credit Agreement and is
created during the Limited Waiver Period, (a) such Debt shall (in addition to complying
with any other restrictions in the Credit Agreement) only consist of Debt incurred in the
ordinary course of business of the Parent and its Subsidiaries consistent with prior
practices of the Parent and its Subsidiaries and (b) no such Debt shall consist of loans to
or other Debt owed by Japan-Xxxxxxx Ltd. Borrowers and other Credit Parties represent and
warrant that, with respect to any Debt created under such subclauses (ii) and (iii) in the
period from January 1, 2009 to (and including) the date hereof, (a) all such Debt was
incurred in the ordinary course of business of the Parent and its Subsidiaries consistent
with prior practices of the Parent and its Subsidiaries and (b) no such Debt consists of
loans to or other Debt owed by Japan-Xxxxxxx Ltd.
3.02 Swedish Letter of Credit. It is acknowledged that the Parent had previously
requested, and the Administrative Agent 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 modified from time to time, the
“Swedish Letter 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 (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) 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.
3.03 Modifications. The Credit Agreement is hereby deemed modified to reflect all of
the terms and provisions of Sections 3.01 and 3.02 above. Any breach by any Borrower (or other
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Credit Party) of the provisions of Section 3.01 or other term or provision of this Agreement
shall be deemed an Event of Default for all purposes.
ARTICLE IV
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
4.01 Conditions to Effectiveness. The effectiveness of the Limited Waiver and the
modifications set forth in Article III hereof is 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 this Agreement duly executed by the
Borrowers, the other Credit Parties and Lenders constituting at least the Required Lenders.
(b) The representations and warranties contained herein and in the Credit Agreement,
the Guaranty and Collateral Agreement and the other Loan Documents shall be 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) with the same effect as if
made on the date hereof (except to the extent stated to relate to a specific earlier date,
in which case such representations and warranties shall be 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) No Event of Default (other than the Specified Events of Default) or Unmatured Event
of Default shall have occurred and be continuing;
(d) All corporate (or other organization) proceedings taken in connection with the
transactions contemplated by this Agreement and all documents, instruments and other legal
matters incident thereto, including without limitation the authorization of the execution,
delivery and performance by the Borrower and each other Credit Party of this Agreement,
shall be satisfactory to the Administrative Agent and its legal counsel, and the Borrowers
and the Credit Parties shall deliver such corporate secretary’s certificates (or their
equivalent) with certified copies of the applicable authorizing resolutions and other
applicable authorizing documentation as shall be reasonably required by the Administrative
Agent; and
(e) The Administrative Agent shall have received such other documents (in form and
substance reasonably satisfactory to the Administrative Agent) as reasonably requested by
the Administrative Agent.
ARTICLE V
NO OTHER WAIVER
NO OTHER WAIVER
5.01 No Other Waiver. Except for the Limited Waiver, nothing contained in this
Agreement shall be construed as a waiver by the Administrative Agent or the Lenders of any covenant
or other provision of the Credit Agreement, the Guaranty and Collateral Agreement, 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
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(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 VI
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
6.01 Ratifications. The terms and provisions of the Credit Agreement and the other
Loan Documents, as hereby modified, are ratified and confirmed and shall continue in full force and
effect. The Borrowers and other Credit Parties, the Lenders and the Administrative Agent agree
that the Credit Agreement and the other Loan Documents, as modified hereby, shall continue to be
the legal, valid and 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 remain in full force and effect 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) remain in full force and effect 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 Agreement (and nothing contained in this Agreement 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 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).
6.02 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 Agreement and any and all Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite corporate (or other
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); and (c) except for
the Specified Events of Default, no Event of Default or Unmatured Event of Default has occurred and
is continuing. 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 March 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:
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(a) Parent Revolving Loans borrowed in Dollars: unpaid principal of $12,100,000 and
accrued and unpaid interest of $16,376.43 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.
(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 €747.93 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 €7,945,735.98 and accrued and unpaid interest of
€5,942.88 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.
ARTICLE VII
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
7.01 Survival of Representations and Warranties. All representations and warranties
made in the Credit Agreement, the Guaranty and Collateral Agreement or any other Loan Documents or
under or in connection with this Agreement, including, without limitation, any document furnished
in connection with this Agreement, shall survive the execution and delivery of this Agreement and
any Loan Document.
7.02 Severability. Any provision of this Agreement held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement and the effect thereof shall be confined to the provision so held to be invalid or
unenforceable.
7.03 Successors and Assigns. This Agreement 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 other Credit Party may assign
or transfer any of its rights or obligations hereunder without the prior written consent of the
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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 and the Administrative Agent under the
Loan Documents.
7.04 Preliminary Statements. The Preliminary Statements set forth in this Agreement
are accurate and shall form a substantive part of the agreement of the parties hereto.
7.05 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 Agreement 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 Agreement 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 Agreement), (ii) cooperate with, and promptly pay the reasonable fees and
out-of-pocket expenses with respect to, a field exam to be performed by the Administrative Agent in
the Limited Waiver Period with respect to the accounts receivable and inventory of the Borrowers
and certain other Credit Parties and the books and records relating thereto and (iii) cooperate
with, and promptly reimburse the Administrative Agent for the reasonable fees and out-of-pocket
expenses of, Capstone (as defined below) in the performance of the Capstone Engagement (as defined
below). “Capstone” shall mean Capstone Advisory Group, LLC which has been retained by Xxxx
Xxxxx & Xxxxxxx LLP, counsel to the Administrative Agent, to conduct certain analyses of the
business, systems or other operations, business plans and/or other financial affairs of the
Borrowers and/or the other Credit Parties (the “Capstone Engagement”). Such cooperation
shall include, without limitation, allowing visits and inspections of the Borrowers’ (and other
Credit Parties’) assets, books and records (and allowing copies or extracts of same to be made by
the Administrative Agent or Capstone, as the case may be), offices and other locations, providing
access to the officers and personnel of the Borrowers and the other Credit Parties and their
independent auditors to discuss the business, operations, business plans and other financial
affairs (including the books and records) of the Borrowers and other Credit Parties (and the
Borrowers and other Credit Parties hereby authorize such independent auditors to discuss same with
the Administrative Agent or Capstone, as the case may be) and providing (at the expense of the
Parent or other applicable Credit Party) clerical and other assistance, in each case upon
reasonable advance notice (to the extent reasonably practical under the circumstances) and during
normal business hours. 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.
7.06 Counterparts; Delivery. This Agreement may be executed 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. Legal delivery of this
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Agreement may be made by, among other methods, telecopy or by email (.pdf., .TIFF or other
electronic format).
7.07 Headings. The headings, captions, and arrangements used in this Agreement are
for convenience only and shall not affect the interpretation of this Agreement.
7.08 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 Agreement or any of the 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 Agreement and the
Loan Documents. No joint venture is created hereby or by the Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby or by the Loan Documents among the Lenders or among
the Borrowers (and other Credit Parties) and the Lenders.
7.09 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 Loan Documents and (ii) acknowledge
and agree such times are material to this Agreement and the Loan Documents. Therefore, time is of
the essence with respect to this Agreement and the Loan Documents.
7.10 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 Agreement and any transaction or matter contemplated by, in
connection with or arising out of this Agreement.
7.11 Applicable Law. THIS AGREEMENT AND ALL OTHER AGREEMENTS EXECUTED PURSUANT HERETO
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).
7.12 Final Agreement. THE CREDIT AGREEMENT, THE GUARANTY AND COLLATERAL AGREEMENT AND
THE OTHER LOAN DOCUMENTS, AS MODIFIED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF ON THE DATE THIS AGREEMENT IS EXECUTED. THE
CREDIT AGREEMENT, THE GUARANTY AND COLLATERAL AGREEMENT AND THE LOAN DOCUMENTS, AS MODIFIED HEREBY,
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
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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 AGREEMENT 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.
7.13 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 AGREEMENT 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 AGREEMENT OR ANY 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 ANY WAY
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
-10-
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 CREDIT PARTY (OR ANY OF THEIR RESPECTIVE SUBSIDIARIES) WITH ANY LENDER OR THE
ADMINISTRATIVE AGENT.
(Rest of page intentionally left blank.)
-11-
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date
first written above.
| XXXXXXX TECHNOLOGY COMPANY, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | President and CEO | |||
| 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] S-1
| 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] S-2
| 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] S-3
| 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 B.V. | |||
| X.X. Xxxxxx / J.B.A.H. Xxxxxxx | ||||
| Title: | Managing Directors | |||
| XXXXXXX GRAPHIC EQUIPMENT B.V. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx X.X.X. Xxxxxxx | |||
| Name: | Xxxxxxx X.X.X. Xxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page] S-4
| BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Title: Agency Management Officer | ||||
| BANK OF AMERICA, N.A., as Lender |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Title: Senior Credit Products Officer | ||||
| XXXXXXX BANK, NATIONAL ASSOCIATION, as Lender |
||||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |||
| Title: Senior Vice President | ||||
| CITIZENS BANK OF CONNECTICUT, as Lender |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Title: Senior Vice President | ||||
[Signature Page] S-5
