WAIVER AND AMENDMENT NO. 10 TO CREDIT AGREEMENT
Exhibit 10.1
Execution Version
THIS WAIVER AND AMENDMENT NO. 10 TO CREDIT AGREEMENT (this “Amendment”), dated as of
May 16, 2011, 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 Xx. 0, xxxxx xx xx
Xxxxx 00, 0000, (xxx) 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, (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”), (vi) Waiver and
Amendment No. 5 to Credit Agreement dated as of July 31, 2009 (“Amendment No. 5”), (vii)
Waiver and Amendment No. 6 dated as of May 12, 2010, (viii) Waiver and Amendment No. 7 dated as of
June 9, 2010, (ix) Amendment No. 8 to Credit Agreement dated as of September 28, 2010
(“Amendment No. 8”) and (x) Amendment No. 9 to Credit Agreement dated as of September 29,
2010 (“Amendment No. 9”);
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 (i) Amendment No. 1 to Guaranty and Collateral Agreement, dated as of June 24, 2009,
(ii) Amendment No. 2 to Guaranty and Collateral Agreement, dated as of February 16, 2010 and (iii)
Amendment No. 3 to Guaranty and Collateral Agreement, dated as of June 30, 2010 and is being
amended on the date hereof pursuant to Amendment No. 4 to Guaranty and Collateral Agreement (as
defined below);
D. The Borrowers have notified the Administrative Agent and the Lenders that (i) the annual
audit report of the Parent and its Subsidiaries for the Fiscal Year ending June 30, 2010
furnished to the Lenders and the Administrative Agent pursuant to Section 10.1.1 of
the Credit Agreement and (ii) the quarterly financial statements of the Parent and its Subsidiaries
for the respective Fiscal Quarters ending September 30, 2010 and December 31, 2010 furnished to the
Lenders and the Administrative Agent pursuant to Section 10.1.2 of the Credit Agreement
contained certain inaccuracies with respect to the reporting of certain sale transactions in the
Fiscal Quarters ending June 30, 2010, September 30, 2010 and December 31, 2010 at the Japanese
operations of the applicable Loan Party(ies), as such inaccuracies are described in the Form 8-K
filed by the Parent on May 10, 2011 (the “May 10, 2011 Form 8-K”) with the United States
Securities and Exchange Commission (such inaccuracies in such annual audit report and such
quarterly financial statements, the “Specified 2010 Financial Statements Inaccuracies”) and
the Borrowers have requested that the Lenders waive any Events of Default under Section
13.1.6 of the Credit Agreement that may have resulted solely from the Specified 2010 Financial
Statements Inaccuracies (any such Events of Default so solely resulting from the Specified 2010
Financial Statements Inaccuracies, the “Specified 2010 Events of Default”).
E. The Borrowers have further notified the Administrative Agent and the Lenders that (i) the
Compliance Certificates (in the form required prior to the amendments set forth in this Amendment
and properly reflecting the adjustments to be set forth in the applicable financial statement(s)
referred to in Section 5.01(h) below) to be delivered under Section 10.1.3 of the Credit
Agreement (1) for the Fiscal Quarter ending March 31, 2011 would show the EBITDA for the Four
Fiscal Quarter Computation Period ending March 31, 2011 was less than $2,557,000 and (2) for the
Fiscal Quarter ending June 30, 2010 would show the EBITDA for the Four Fiscal Quarter Computation
Period ending June 30, 2011 to be less than $3,642,000, each in breach of the respective minimum
EBITDA amounts for such Periods required by Section 11.4.1 as such Section 11.14.1
existed prior to the amendments set forth in this Amendment (the Events of Default resulting from
such breaches are referred to below as the “Specified EBITDA Events of Default”) and (ii)
the Minimum Liquidity and Currency Adjusted Net Sales Certificate to be delivered under Section
10.1.6 of the Credit Agreement with respect to the Currency Adjusted Net Sales for the consecutive
three-month period ending April 30, 2011 would show the Currency Adjusted Net Sales for such
consecutive three-month period to be less than $35,984,000 in breach of the minimum Currency
Adjusted Net Sales amount for such Period required by Section 11.14.4 of the Credit
Agreement as such Section 11.14.4 existed prior to the amendments set forth in this
Amendment (the Event of Default resulting such breach, the “Specified Net Sales Event of
Default”; the Specified Net Sales Event of Default, the Specified EBITDA Events of Default and
the Specified 2010 Events of Default are collectively referred to below as the “Specified
Events of Default”), and the Borrowers have also requested that the Lenders waive the Specified
EBITDA Events of Default and the Specified Net Sales Event of Default.
F. The Borrowers have requested that Lenders constituting at least the Required Lenders agree
to further amend the Credit Agreement to (i) eliminate the minimum EBITDA financial covenant set
forth in Sections 11.14.1 for the Four Fiscal Quarter Computation Period ending March 31,
2011 and (ii) otherwise amend the financial covenants in Sections 11.14.1 and
11.14.4 of the Credit Agreement as set forth below; and
G. The Administrative Agent and the Lenders signatory hereto, representing at least the
Required Lenders, are willing to provide for such amendments (a) provided that (i) the
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Applicable Margins under the Credit Agreement (and related Notes) be increased as set forth
below, (ii) the 2011 Warrants (as defined below) are issued by the Parent, and (iii) certain other
modifications are made as set forth below and (b) and otherwise upon the other terms and subject to
the 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; CONSENT
AMENDMENTS; CONSENT
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):
2010 Warrants — see definition of Warrants.
2011 Warrants — see definition of Warrants.
Amendment No. 10 means that certain Waiver and Amendment No. 10 to Credit Agreement
dated as of May 16, 2011, 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.
Tenth Amendment Effective Date means May 16, 2011.
2.02 Amendment to Section 1.1: Existing Definitions. Section 1.1 of the
Credit Agreement is hereby further amended by amending and restating the following definitions:
Applicable Margin means, for any day on or after March 31, 2009, the
applicable rate per annum set forth below with respect to the applicable period set
forth below plus, with respect to interest on the Loans (for any day on or
after October 1, 2010), the Incremental Margin (it being understood and agreed that
the Applicable Margin for (i) LIBOR Loans shall be the applicable percentage set
forth under the column “LIBOR Margin” for the applicable period plus (for any day on
or after October 1, 2010) the applicable Incremental Margin, (ii) Base Rate Loans
shall be the applicable percentage set forth under the column “Base Rate Margin” for
the applicable period plus (for any day on or after October 1, 2010) the applicable
Incremental Margin, (iii) the Non-Use Fee Rate shall be the applicable percentage
set forth under the column “Non-Use Fee Rate” for the
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applicable period and (iv) the L/C Fee Rate shall be the applicable percentage
set forth under the column “L/C Fee Rate” for the applicable period):
| Applicable | LIBOR | Base Rate | Non-Use | L/C Fee | ||||||||||||
| Period | Margin | Margin | Fee Rate | Rate | ||||||||||||
March 31, 2009 to and
including May 15, 2011 |
4.50 | % | 3.00 | % | 0.500 | % | 4.50 | % | ||||||||
On and after May 16, 2011 |
5.50 | % | 4.00 | % | 0.500 | % | 5.50 | % | ||||||||
Warrants means, collectively, (i) those certain warrants (the “2010
Warrants”) issued by the Parent on the Eighth Amendment Effective Date to each of the
Lenders signatory to Amendment No. 8 on the Eighth Amendment Effective Date for the purchase
(in the aggregate) of 352,671 shares of the Parent’s Class A Common Stock with such shares
being equal to two percent (2%) (in the aggregate) of all of the then
issued and outstanding shares of the Parent’s Common Stock (of any Class) on a fully diluted basis, such warrants
to be substantially in the form of Attachments X-0, X-0 xxx X-0 to Amendment No. 8, and (ii)
those certain warrants (the “2011 Warrants”) issued by the Parent on or about the
Tenth Amendment Effective Date to each of the Lenders signatory to Amendment No. 10 for the
purchase (in the aggregate) of 372,373 shares of the Parent’s
Class A Common Stock with such shares being equal to two percent (2%) (in the aggregate) of all of the issued and
outstanding shares of the Parent’s Common Stock (of any Class) on a fully diluted basis,
such warrants to be substantially in the form of Attachments X-0, X-0 xxx X-0 to Amendment
No. 10, which term “Warrants” shall also include any warrants delivered in exchange,
replacement or substitution for any 2010 Warrant(s) or any 2011 Warrant(s) and shall also
include all related amendments, supplements, restatements or other modifications of the
original 2010 Warrants or 2011 Warrants or any exchange, replacement or substitution
warrants for the 2010 Warrants or 2011 Warrants (and any amendments, supplements,
restatements or modifications thereto) and any shares issued pursuant to the exercise of any
of the Warrants.
2.03 Amendment to Definition of EBITDA. The definition of the term EBITDA set forth
in Section 1.1 of the Credit Agreement is hereby amended by (a) deleting the phrase “and
(xv)” and inserting in lieu thereof the phrase “, (xv)” and (b) deleting the phrase “(for all
periods in the aggregate) $900,000,” and inserting in lieu thereof the phrase: (for all periods in
the aggregate) $900,000, and (xvi) to the extent paid by the Borrowers and not capitalized, the
$179,000 fee under Amendment No. 10, the legal fees incurred by the Agent in connection with
Amendment No. 10 and the Agent (and any Lender) in connection with the 2011 Warrants, the Capstone
fees required to be paid pursuant to Amendment No. 10, legal fees incurred by the Borrowers in
connection with Amendment No. 10 and the 2011 Warrants, and any fees of the Investment Banker (as
defined in Amendment No. 10),”.
2.04 Amendment to Section 10.1.6. Section 10.1.6(a) of the Credit Agreement
is hereby amended by deleting the phrase “(commencing with the month of July of 2009 and
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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)” and inserting in
lieu thereof the phrase “(commencing with the month of July of 2009)”.
2.05 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:
As soon as practicable, and in any event (i) for the Fiscal Year commencing July 1, 2010, no
later than June 22, 2010, (ii) for the Fiscal Year commencing July 1, 2011, no later than
June 30, 2011, and (iii) for any Fiscal Year other than the Fiscal Years commencing July 1,
2010 or July 1, 2011, 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 projections) 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.
2.06 Amendment to Section 11.14.1. Section 11.14.1 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
11.14.1 EBITDA. Not permit EBITDA for any of the following Four Fiscal
Quarter Computation Periods set forth below to be less than the following respective
amounts of minimum EBITDA set forth below for such period:
| Period | Minimum EBITDA | |||
Four Fiscal Quarter Computation Period ending September 30,
2010 |
$ | 1,955,000 | ||
Four Fiscal Quarter Computation Period ending December 31,
2010 |
$ | 2,612,000 | ||
Four Fiscal Quarter Computation Period ending June 30, 2011 |
($1,501,000 | ) | ||
Four Fiscal Quarter Computation Period ending September 30,
2011 |
($5,522,000 | ) | ||
2.07 Amendment to Section 11.14.4. Section 11.14.4 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
11.14.4 Currency Adjusted Net Sales. Not permit Currency Adjusted Net Sales
for any of the following periods to be less than the following respective amounts
set forth below for each such period:
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| Minimum Currency Adjusted | ||||
| Period | Net Sales for the Applicable Period | |||
Three Consecutive Months Ending September 30, 2010
|
$ | 31,630,000 | ||
Three Consecutive Months Ending October 31, 2010
|
$ | 32,970,000 | ||
Three Consecutive Months Ending November 30, 2010
|
$ | 32,815,000 | ||
Three Consecutive Months Ending December 31, 2010
|
$ | 33,514,000 | ||
Three Consecutive Months Ending January 31, 2011
|
$ | 31,778,000 | ||
Three Consecutive Months Ending February 28, 2011
|
$ | 31,988,000 | ||
Three Consecutive Months Ending March 31, 2011
|
$ | 34,195,000 | ||
Three Consecutive Months Ending April 30, 2011
|
$ | 35,728,000 | ||
Three Consecutive Months Ending May 31, 2011
|
$ | 34,903,000 | ||
Three Consecutive Months Ending June 30, 2011
|
$ | 32,448,000 | ||
Three Consecutive Months Ending July 31, 2011
|
$ | 30,096,000 | ||
Three Consecutive Months Ending August 31, 2011
|
$ | 30,339,000 | ||
Three Consecutive Months Ending September 30, 2011
|
$ | 28,461,000 | ||
Three Consecutive Months Ending October 31, 2011
|
$ | 29,785,000 | ||
2.08 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.
2.09 Attachments. Attachments X-0, X-0 xxx X-0 to this Amendment are hereby made a
part of this Amendment.
2.10 Consent. As a result of the amendments set forth in Section 2.25 of Amendment
No. 5, the sale of Oxy-Dry Food Blends, Inc. is not permitted without the consent of the Required
Lenders. The Lenders a party hereto hereby consent to (a) the sale of all of the capital stock of
Oxy-Dry Food Blends, Inc. to a third party purchaser (the “Oxy-Dry Food Blends Buyer”), (b)
simultaneously with such sale, the release of any Liens (granted under the Collateral Documents) in
such capital stock (but such release shall not release any Lien on the proceeds from such sale of
such capital stock), (c) the release (simultaneous with such sale) of Oxy-Dry Food Blends, Inc. as
a party (including as a “Guarantor” and “Grantor” thereunder) under the Guaranty and Collateral
Agreement and (d) the release of the Administrative Agent’s security in any Collateral owned by
Oxy-Dry Food Blends, Inc., including, without limitation, certain intellectual property; provided,
that (i) the sales price paid by the Oxy-Dry Food Blends Buyer is approximately $250,000 and such
price is paid in cash by the Buyer to Oxy-Dry Corporation or the Parent at the closing of such
sale, (ii) no material assets of any Loan Party (other than Oxy-Dry Food Blends, Inc.) are
transferred to Oxy-Dry Food Blends, Inc., (iii) the purchase and sale documents relating to such
sale are in customary form and the Loan Parties (other than Oxy-Dry Food Blends, Inc.) have no
liabilities thereunder other than those that are customary and typical for transactions of that
type and (iv) after such sale no Loan Party shall have any material exposure for the liabilities of
Oxy-Dry Food Blends, Inc. The Parent represents and warrants that it does not anticipate, and as
of the date of sale it will not anticipate, if such a sale actually occurs, that any of the Credit
Parties will have any actual material exposure for any such indemnification obligations.
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ARTICLE III
CERTAIN WAIVER
CERTAIN WAIVER
3.01 Waiver. The undersigned Lenders (representing at least the Required Lenders)
hereby waive the Specified Events of Default. The foregoing waiver in this Section 3.01 is limited
solely to the 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 (i) the waiver set forth in the first sentence of this paragraph does not apply to any
breach of Sections 11.14.1 or 11.14.4 of the Credit Agreement other than (a) the
breach of Section 11.14.1 (as it existed prior to the amendments set forth in this
Amendment No. 10) for the Four Fiscal Quarter Computation Periods respectively ending March 31,
2011 and June 30, 2011 and (b) the breach of Section 11.14.4 (as it existed prior to the
amendments set forth in this Amendment No. 10) for the consecutive three-month period ending April
30, 2011 and (ii) nothing contained in this paragraph shall, or shall be interpreted to, limit the
provisions of Sections 11.14.1 and 11.14.4 of the Credit Agreement as amended by
this Amendment (including without limitation, for the avoidance of doubt, the amended financial
covenant under Section 11.14.1 of the Credit Agreement for the Four Fiscal Quarter
Computation Period ending June 30, 2011 and the amended financial covenant under Section
11.4.14 of the Credit Agreement for the consecutive three month period ending April 30, 2011).
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 Specified Events of Default at any time.
ARTICLE IV
CERTAIN COVENANTS REGARDING
REFINANCING AND OTHER MATTERS
CERTAIN COVENANTS REGARDING
REFINANCING AND OTHER MATTERS
4.01 Refinancing and Certain Other Matters. In addition, and not in limitation of all
reporting, notice and other obligations under the Credit Agreement and the other Loan Documents,
the Parent hereby covenants as follows:
(i) No later than May 30, 2011, the Parent shall retain and continue to use the
services of an investment banking firm selected by the Parent of recognized
standing, experience and expertise in assisting companies obtaining financings of
the type represented by the Refinancing (such investment banking firm, or any
substitute investment banking firm meeting the same qualifications, the
“Investment Banker”) for the purpose of assisting the Borrowers and other
Credit Parties in consummating the Refinancing (as defined below). The Parent shall
provide to the Administrative Agent, a copy of the signed engagement letter with the
Investment Banker. “Refinancing” shall mean obtaining financing (debt and,
to the extent applicable, equity) in an amount at least sufficient to refinance in
full (i.e., pay out in full) all of the Loans and all other outstanding Obligations
and which financing shall also result in the termination of any remaining
Commitments and either the termination of all outstanding Letters of Credit or the
Cash Collateralization (at 105% of the then aggregate Dollar Equivalent of all
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then Stated Amounts) of all outstanding Letters of Credit with the further
agreement (given at the time of the Refinancing) of the Parent (and, with respect to
any German Letter of Credit, of the German Opcos) to cause the termination of all
Letters of Credit no later than 91 days after the occurrence of the Refinancing.
(ii) The Parent shall provide the Administrative Agent and Capstone (as defined
below) with full access to the Parent and the other Loan Parties (and their
respective officers) including without limitation discussing and timely providing
any updates and information requested with respect to, (a) the Refinancing
(including without limitation progress towards achieving the milestones referred to
in clause (iii) below), (b) the liquidity of the Parent and its Subsidiaries, (c)
the projections to be delivered under Section 10.1.8 of the Credit Agreement for the
Fiscal Year commencing July 1, 2011, (d) the revised audit report and financial
statements referred to in Section 5.01(h) below and such (e) other matters as
Capstone or the Administrative Agent shall reasonably request in good faith. The
Company shall also provide the Administrative Agent and Capstone full access to the
Investment Banker with respect to any matters relating to the Refinancing including,
without limitation, providing updates and information related to achieving the
milestones referred to in clause (iii) below.
(iii) The Parent shall use its reasonable best efforts to achieve the following
“milestones” with respect to the Refinancing:
| (a) | By no later than June 30, 2011, (x) complete a list of prospective lenders/investors that the private offering memorandum (and related materials) referred to in clause (y) below is to be sent to and (y) circulate to such prospective lenders/investors a private offering memorandum, and any related materials, with respect to the Refinancing. The Parent shall also promptly provide copies of such list, memorandum and materials to Capstone and the Administrative Agent. | ||
| (b) | By no later than August 15, 2011, obtain a term sheet(s) (which term sheet(s) may be binding or non-binding), in customary form, for the Refinancing from prospective lenders/investors who customarily provide financing of a type similar to the Refinancing and, if obtained, promptly provide a copy(ies) of same to the Administrative Agent, the Lenders and Capstone. | ||
| (c) | By no later than September 15, 2011, obtain a binding commitment letter(s), in customary form, for the Refinancing from prospective lenders/investors who customarily provide financing of a type similar to the Refinancing and, if obtained, promptly provide a copy(ies) |
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of same to the Administrative Agent, the Lenders and
Capstone.
(iv) Commencing on or about July 1, 2011, (a) the Parent shall hold bi-weekly
update calls (to be held the first Business Day after the applicable bi-weekly cash
flow forecast and schedules required under Section 10.1.6(c) of the Credit
Agreement are delivered) with the Parent, the Lenders, the Administrative Agent,
Capstone and the Investment Banker, to provide information with respect the
Refinancing (including, without limitation, an update relating to the milestones
referred to in clause (iii) above), the liquidity of the Parent and its
Subsidiaries, any matters relating to the projections to be delivered under
Section 10.1.8 of the Credit Agreement for the Fiscal Year commencing July
1, 2011, and such other matters as the Lenders, the Administrative Agent and
Capstone shall request in good faith and (b) at the time of such update calls, the
Parent shall provide to the Lenders and the Administrative Agent a written tracking
report listing lenders/investors contacted with respect to the Refinancing, whether
such lenders/investors have expressed an interest in participating in the
Refinancing and a general update on the status of the Refinancing, including,
without limitation, progress towards meeting such milestones.
(v) The Parent shall keep the Administrative Agent and the Lenders promptly
informed (in writing) of any other material developments with respect to any
prospective Refinancing and the progress of the Parent and the other Loan Parties in
obtaining same.
It is understood and agreed that any reference herein to reasonable best efforts
shall not, and shall not be interpreted to, impair or otherwise limit the
obligations (which obligations are absolute and unconditional) under the Loan
Documents to timely make payments when due under the Loan Documents.
ARTICLE V
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
5.01 Conditions to Effectiveness. The effectiveness of the amendments set forth in
Article II above, the consent set forth in Section 2.10 above and the waiver set forth in
Section 3.01 above are each subject to the satisfaction (by no later than May 17, 2011 unless the
Administrative Agent extends such date) 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) an Amendment No. 4 to Guaranty and Collateral Agreement duly executed by
Borrowers and the other Credit Parties and the Administrative Agent (the
“Amendment No. 4 to Guaranty and Collateral Agreement”) (the Lenders a
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party to this Amendment hereby confirm their authorization of the
Administrative Agent to enter into Amendment No. 4 to Guaranty and Collateral
Agreement); 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, Amendment No. 4 to Guaranty and Collateral
Agreement) and the 2011 Warrants and all documents, instruments and other legal matters
incident hereto or thereto shall be reasonably satisfactory to the Administrative Agent and
its legal counsel and the Administrative Agent shall receive such certifications with
respect thereto as the Administrative Agent shall reasonably require;
(c) Borrowers shall have paid all costs and expenses (including reasonable outside
attorneys’ fees and disbursements) and out-of-pocket fees of the Administrative Agent
incurred as of the date hereof including without limitation the following legal and
consultant fees: (i) Capstone: $8,361.25 and (ii) Xxxx Xxxxx & Xxxxxxx LLP: $34,900; and the
Borrowers shall have paid any reasonable and out-of-pocket legal fees (if any) of the
Lenders referred to in clause (ii) of Section 9.04 below with respect to the review or
negotiation of the 2011 Warrants;
(d) the Parent shall have issued the 2011 Warrants;
(e) The Parent shall cause an opinion letter with respect to the 2011 Warrants and
other warrant related matters, issued by its counsel Xxxxxx, Xxxxx & Bockius LLP,
substantially in the form (but with conforming changes to reflect the fact that the opinion
letter shall address the 2011 Warrants) of the opinion letter delivered to the Lenders
pursuant to Section 3.01 of Amendment No. 8), to be delivered to the Lenders;
(f) The Borrowers shall pay the First Installment of the Amendment No. 10 Fee (as
defined below);
(g) The Administrative Agent and the Lenders shall have received (a) the financial
statements required to be delivered by Section 10.1.2 of the Credit Agreement for
the Fiscal Quarter ending March 31, 2011 and (b) the related Compliance Certificate
(reflecting any applicable amendments to the form of Compliance Certificate set forth in
Exhibit B hereto) required to be delivered by Section 10.1.3 of the Credit Agreement
with respect to such Fiscal Quarter;
(h) The Administrative Agent and the Lenders shall have received the draft revised
audit report for the Fiscal Year ending June 30, 2010 and the draft revised quarterly
financial statements for the Fiscal Quarters ending September 30, 2010 and December 31, 2010
contemplated by the May 10, 2011 Form 8-K (it is understood and agreed by the Borrowers and
other Loan Parties that such revised audit report and quarterly financial statements shall
be deemed financial statements deemed furnished by the Parent under the Credit Agreement);
and
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(i) the “split” of existing stock certificates, and delivery of related stock powers in
blank, referred to in Section 2.19 of Amendment No. 8 shall be consummated. (Nothing
contained herein shall, or shall be interpreted to, limit or otherwise impair any other
obligations of any Credit Party under such Section 2.19.).
ARTICLE VI
AMENDMENT FEE
AMENDMENT FEE
6.01 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 (the “Amendment No. 10 Fee”)
equal to such Lender’s Pro-Rata Share (as defined in clause (d) of the definition of Pro-Rata
Share) of $179,000. The Amendment No. 10 Fee shall be fully earned on the date hereof and (i)
$89,500 shall be payable on the date of this Amendment (the “First Installment of the Amendment
No. 10 Fee”) and (ii) $89,500 shall be payable upon the earlier of (x) July 31, 2011, (y) the
consummation of the sale (if any) of the capital stock of Oxy-Dry Food Blends, Inc. to the Oxy-Dry
Food Blends Buyer and (z) upon any Refinancing. Any failure to pay, when due, any such
installments under clause (i) or (ii) above shall constitute an Event of Default under the Credit
Agreement
ARTICLE VII
NO WAIVER
NO WAIVER
7.01 No Waiver. Other than the waiver set forth in Section 3.01 above,
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 VIII
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS
8.01 Ratifications; etc. 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. For the avoidance of doubt, this Amendment and all prior amendments to the Credit
Agreement shall be considered Loan Documents. 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.
- 11 -
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
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) such guaranties and Liens (and other
obligations), under 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 (with respect to any guarantee, granting of
Liens or otherwise) 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, covenant, agreement 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.
8.02 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 amendments set forth herein, no Event of Default or Unmatured Event of Default under
the Credit Agreement has occurred and is continuing; and (d) 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, (iii) Xxxxxxx Southeast Asia
Corporation changed its name from Oxy-Dry Asia Pacific, Inc and (iv) Xxxxxxx Rockford Corporation
has merged with and into Xxxxxxx Americas Corporation. The Borrowers and the other Credit Parties
acknowledge and agree that all unpaid principal of, and accrued and unpaid interest under, each of
the Loans (and any reimbursement obligations with respect to any Letters of Credit and any other
outstanding Obligations) is justly owed without claim, counterclaim, cross-complaint, offset,
defense or other reduction of any
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kind against the Lenders or the Administrative Agent. The Parent acknowledges and agrees that
each Warrant constitutes the legal, valid and binding obligation of the Parent, enforceable against
the Parent in accordance with its respective terms and Parent has no claims, counterclaims,
cross-complaints, offsets, defenses or other reduction of any kind with respect to its respective
obligations thereunder.
8.03 Confirmations. All confirmations and agreements set forth in Sections
7.03, 7.04 and 7.05 of Amendment No. 5 remain in full force and effect.
ARTICLE IX
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
9.01 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.
9.02 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.
9.03 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.
9.04 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 the 2011 Warrants or any related documents or any future waiver or
modification (or proposed modification or waiver whether or not consummated), if any, of any Loan
Document(s) or the Warrants or any related documents (provided that Parent 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), (ii) promptly pay the reasonable fees and disbursements of any legal
counsel retained by any of the Lenders in connection with the review or negotiation of the 2011
Warrants or any related warrant document, and (iii) promptly pay all
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fees of Capstone (as defined in the Modification and Limited Waiver) incurred (at any time) by
the Agent whether such fees relate to the Refinancing, discussions with the Loan Parties, the
Investment Banker (in the case of the Investment Banker, with respect to matters relating solely to
the Refinancing), the Lenders or the Administrative Agent, updates to the Lenders or the
Administrative Agent, the review of projections or the revised audit report and financial
statements referred to in Section 5.01(h) above or other financial matters, or any other
matters relating to the Loan Parties and/or Subsidiaries (it is understood and agreed that the
$8,361.25 of Capstone fees referred to in Sections 4.01(c) above are with respect to fees
incurred through the date hereof and that the Parent shall also be responsible for (and promptly
pay upon presentation of invoices by Capstone) any fees of Capstone incurred after the date
hereof). The obligations of the Parent under this Section 9.04 shall be considered part of
the Parent’s obligations under Section 15.5 of the Credit Agreement. 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.
9.05 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.
9.06 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.
9.07 Headings. The headings, captions, and arrangements used in this Amendment are
for convenience only and shall not affect the interpretation of this Amendment.
9.08 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 (or, in the case of the
Warrants, the relationship is that the Parent is the issuer, and the applicable Lender is the
holder, of the applicable Warrant). 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 or the Warrants or any related
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 (or, in the case of the Warrants, the relationship
is that the Parent is the issuer, and the applicable Lender is the holder, of the applicable
Warrant). 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
and the Warrants and any related documents. No joint venture or partnership is created hereby or
by the other Loan Documents or by the Warrants or related documents or otherwise exists by virtue
of the transactions contemplated hereby or by the other Loan Documents (or the Warrants or related
documents) among the Lenders or among the Borrowers (and other Credit Parties) and the Lenders (or
the Agent). It is acknowledged and agreed by all Lenders that each Lender is the owner of its
individual Warrants which individual Warrants are exercisable by such Lender at its
- 14 -
own election. No other Lender (or the Administrative Agent) has any obligations with respect
to the Warrants issued to any other Lender or for the performance or content of any Warrants issued
to any other Lender.
9.09 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.
9.10 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.
9.11 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).
9.12 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.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BORROWERS AND OTHER CREDIT PARTIES
ACKNOWLEDGE AND AGREE THAT (1) THERE IS NO ORAL AGREEMENT AS TO ANY EXTENSION OF THE TERMINATION
DATE OR FOR THE EXTENSION OF ANY OTHER DATE FOR THE PAYMENT OF ANY OBLIGATIONS (OR FOR ANY
EXTENSION OF ANY DATE FOR THE TERMINATION OF ANY COMMITMENTS) AND (2) NO FAILURE OF THE PARENT OR
ANY OF THE OTHER CREDIT PARTIES TO OBTAIN THE REFINANCING (REGARDLESS OF WHETHER OR NOT THE PARENT
HAS USED ITS REASONABLE BEST EFFORTS TO OBTAIN THE REFINANCING) SHALL EXCUSE, OR DELAY, THE PAYMENT
OF ANY OF THE OBLIGATIONS WHEN DUE UNDER THE TERMS OF THE
- 15 -
LOAN DOCUMENTS (OR, IN THE CASE OF OBLIGATIONS CONSISTING OF BANK PRODUCT OBLIGATIONS, UNDER
THE TERMS OF THE DOCUMENTS EVIDENCING SUCH BANK PRODUCT OBLIGATIONS). 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.
9.13 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 (INCLUDING
ANY HEDGING AGREEMENT) WITH ANY LENDER, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE
AFFILIATES OR UNDER THE WARRANTS OR ANY RELATED DOCUMENT 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,
THE WARRANTS OR ANY RELATED DOCUMENT, 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 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
- 16 -
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.
9.14 Warrant Value; OID. The Lenders and the Borrowers agree (i) that the aggregate
fair market value (as of the date hereof) of all of the 2011 Warrants is equal to $554,836
(allocated as follows: $277,418 for the 0000 Xxxxxxx issued to Bank of America, N.A., in its
capacity as Lender, $110,967 for the 2011 Warrant issued to Xxxxxxx Bank, National Association, as
Lender, and $166,451 for the 2011 Warrant issued to RBS Citizens, N.A., as Lender), (ii) that as a
result of (x) the value allocated to the 2011 Warrants pursuant to clause (i) above, as well as (y)
the value allocated to the 2010 Warrants and certain interest attributable to the Incremental
Margin being payable on the Termination Date, in each case (under this clause (y)) as described in
Section 8.14 of Amendment No. 8, the Permanent Loans Notes are deemed, for federal income tax
purposes, to be issued with original issue discount (“OID”), as defined in Section
1273(a)(1) of the Code, (iii) that any calculation by any of the Borrowers regarding the amount of
OID for any accrual period on such Notes shall be subject to review and approval of the Required
Lenders, which approval shall not be unreasonably withheld, delayed or conditioned, and (iv) to
adhere to this Amendment for federal income tax purposes and not to take any action or file any tax
return, report or declaration inconsistent herewith (including with respect to the amount of OID on
such Notes as determined in accordance with the preceding clause (iii)). It is agreed that the
provisions of Section 8.14 of Amendment No. 8 remain in full force and effect. Nothing contained
in this paragraph or in such Section 8.14 shall, or shall be interpreted to, limit any obligation
of any Borrower under any such Note or under any other Loan Document or of the Parent under the
Warrants.
9.15 Certain Acknowledgments and Representations. Each of the Lenders hereby
acknowledges for itself, severally only and not jointly, that (i) the 0000 Xxxxxxx issued to it and
any shares of Common Stock issuable upon any of its exercise are, as of the date hereof, not
registered: (A) under the Securities Act of 1933, as amended (the “Act”) on the ground
that the issuance of the 2011 Warrants is exempt from registration under Section 4(2) of the Act as
not involving any public offering or (B) under any applicable state securities law because the
issuance of the 2011 Warrants does not involve any public offering and (ii) the Parent’s reliance
on the Section 4(2) exemption of the Act and under applicable state securities laws is predicated
in part on the representations severally made below by the Lenders to the Parent. Each Lender,
severally only and not jointly, represents and warrants as to itself that it is (i) an “accredited
investor” within the meaning of Rule 501(a) of Regulation D under the Act, (ii) (A) familiar with
the business and affairs of the Parent and (B) knowledgeable and experienced in financial and
business matters to the extent that it is capable of evaluating the merits and risks of an
investment in a 2011 Warrant and the shares of Common Stock issuable upon their exercise, and (iii)
acquiring a 0000 Xxxxxxx and will acquire the shares of Common Stock issuable upon its exercise for
investment for its own account, with no present intention of dividing its participation with others
or reselling or otherwise distributing the same. No breach of any such representation or warranty
or other provision of this paragraph shall impair any obligations of the Credit Parties under the
Loan Documents.
[Remainder of Page Intentionally Left Blank]
- 17 -
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. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: President and CEO | ||||
| XXXXXXX GERMANY HOLDING GMBH | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Geschaftsfuhrer | ||||
| XXXXXXX GERMANY GMBH | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Geschaftsfuhrer | ||||
| XXXXXXX OXY-DRY GMBH | ||||
| (formerly known as OXY-DRY MASCHINEN GMBH) | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Geschaftsfuhrer | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
| XXXXXXX GRAPHIC SYSTEMS, INC. | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| OXY-DRY FOOD BLENDS, INC. | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President and Treasurer | ||||
| OXY-DRY U.K., INC. | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President | ||||
| XXXXXXX SOUTHEAST ASIA CORPORATION | ||||
| (formerly known as Oxy-Dry Asia Pacific, Inc.) | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President and Treasurer | ||||
| XXXXXXX AMERICAS CORPORATION | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President and Treasurer | ||||
| XXXXXXX ASIA PACIFIC CORPORATION | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Vice President and Treasurer | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
| MTC TRADING COMPANY | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: President | ||||
| OXY-DRY CORPORATION | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Vice President | ||||
| XXXXXXX EUROPE CONSOLIDATED INC. | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: President | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
| 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 | ||||
| HORIZON LAMPS, INC. | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Treasurer | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
| BANK OF AMERICA, N.A., as Administrative Agent | ||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: Xxxxxxxx Xxxxxxx | ||||
| Title: 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. 10 to Credit Agreement]
| XXXXXXX BANK, NATIONAL ASSOCIATION, as Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxx | ||||
| Title: Senior Vice President | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
| RBS CITIZENS, N.A., as Lender | ||||
| By: | /s/ Xxxxxxx X. X. Xxxxx | |||
| Name: Xxxxxxx X. X. Xxxxx | ||||
| Title: Senior Vice President | ||||
[Signature Page to Waiver and Amendment No. 10 to Credit Agreement]
