EXHIBIT 10.33
WAIVER AND AMENDMENT NO. 5
TO
CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NO. 5 TO CREDIT AGREEMENT (this "Amendment"),
dated as of the 31st day of July, 2009, is by and among XXXXXXX TECHNOLOGY
COMPANY, INC., a Delaware corporation ("Parent"), XXXXXXX GERMANY HOLDING GMBH,
a German company ("Newco"), XXXXXXX GERMANY GMBH, a German company ("BGG"),
XXXXXXX OXY-DRY GMBH (formerly known as "OXY-DRY MASCHINEN GMBH"), a German
company ("Oxy-Dry GmbH", and, collectively with the Parent, Newco and BGG, the
"Borrowers"), the other Credit Parties (as defined in the Guaranty and
Collateral Agreement (as defined below)) a party hereto, the Lenders (as defined
in the Credit Agreement referred to below) signatory hereto and BANK OF AMERICA,
N.A., a national banking association (as successor-by-merger to LASALLE BANK
NATIONAL ASSOCIATION), in its capacity as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS
A. The Borrowers, the Lenders and the Administrative Agent are parties to
that certain Credit Agreement, dated as of November 21, 2006, as amended by that
certain (i) Amendment to Credit Agreement dated as of December 29, 2006, (ii)
Waiver, Consent and Amendment No. 2, dated as of April 18, 2007 ("Amendment No.
2"), (iii) Waiver, Consent and Amendment No. 3 to Credit Agreement dated as of
January 3, 2008, (iv) Amendment No. 4 to Credit Agreement dated as of February
26, 2008 and (v) Modification and Limited Waiver Agreement dated as of March 31,
2009, as amended and restated as of May 15, 2009 and amended on June 22, 2009
(such Modification and Limited Waiver Agreement, as so amended and restated and
as so amended, and as may be further amended, restated, supplemented or
otherwise modified from time to time, the "Modification and Limited Waiver");
B. The term "Credit Agreement" as used in this Amendment shall mean such
Credit Agreement as amended as set forth in paragraph A above.
C. The Guaranty and Collateral Agreement (as defined in the Credit
Agreement) was amended pursuant to an Amendment No. 1 to Guaranty and Collateral
Agreement, dated as of June 24, 2009 (the "Amendment No. 1 to Guaranty and
Collateral Agreement").
D. The Borrowers, the Administrative Agent and the Lenders party hereto
desire to further amend the Credit Agreement, as hereafter set forth, and each
of the Borrowers, the Administrative Agent and such Lenders is willing to do so
upon the terms and conditions set forth in this Amendment; and
E. The Borrowers have requested that the Administrative Agent and the
Lenders waive the "Specified Events of Default" set forth in the Modification
and Limited Waiver, and the Administrative Agent and the Lenders are willing to
waive such "Specified Events of Default" upon the terms and conditions set forth
in this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
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
2.01 AMENDMENT TO SECTION 1.1: ADDITION OF NEW DEFINITIONS. Section 1.1 of
the Credit Agreement is hereby amended by adding the following new definitions
(to be inserted in proper alphabetical order):
Amendment No. 5 means that certain Waiver and Amendment No. 5 to
Credit Agreement dated as of July 31, 2009, among Borrowers, the other
Credit Parties a party thereto, the Lenders signatory thereto and the
Administrative Agent, as amended, restated, supplemented or otherwise
modified from time to time.
Currency Adjusted Net Sales means, with respect to any period, the net
sales of the Parent and its Subsidiaries for such period on a consolidated
basis. Such Currency Adjusted Net Sales shall, subject to the immediately
succeeding sentence, be calculated in accordance with GAAP in a manner
consistent with how net sales were calculated in the financial statements
delivered pursuant to Sections 10.1.1 and 10.1.2 prior to the Fifth
Amendment Effective Date. Notwithstanding the foregoing, (i) sales for June
of 2009 made in currencies other than Dollars shall be converted to Dollars
using the exchange rates set forth in the projections for June of 2009
previously delivered to the Lenders and (ii) sales made on or after July 1,
2009 in the following currencies shall, for purposes of calculating
Currency Adjusted Net Sales, be converted to Dollars using the following
respective exchange rates (which exchange rates are referred to herein as
the "Specified Assumed Exchange Rates"):
FOREIGN CURRENCY EXCHANGE RATE (PER DOLLAR)
---------------- --------------------------
GBP 0.61
AUD 1.36
JPY 99.31
SEK 7.36
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FOREIGN CURRENCY EXCHANGE RATE (PER DOLLAR)
---------------- --------------------------
HKD 7.77
RMB 6.84
EURO 0.73
REAL 2.06
RUPEE 46.82
SING 1.46
CHF 1.12
Excess Cash Flow means, without duplication, with respect to any
applicable Fiscal Year of the Parent and its Subsidiaries, (a) EBITDA with
respect to such Fiscal Year minus (b) the consolidated Capital Expenditures
of the Parent and its Subsidiaries during such Fiscal Year to the extent
such Capital Expenditures are permitted by this Agreement and are not
financed with the proceeds of Debt (other than Revolving Loans), minus (c)
Interest Expense (whenever accrued) actually paid in cash by the Parent or
its Subsidiaries in such Fiscal Year, minus (d) to the extent not deducted
in determining such EBITDA, any scheduled permanent principal payments (but
excluding for the avoidance of doubt any mandatory prepayments required
under Section 6.2.2) actually paid in cash by the Parent or its
Subsidiaries in respect of Total Debt (other than the Revolving Loans or
other revolving indebtedness) permitted under this Agreement, minus (e) any
voluntary prepayments (if any) of the Term Loans made by Newco in such
Fiscal Year and any voluntary prepayment of the Revolving Loans made in
such Fiscal Year and after the Fifth Amendment Effective Date but only to
the extent that the applicable Revolving Commitments are simultaneously and
permanently reduced by the amount of such prepayment, minus (f)
consolidated income taxes and franchise taxes (to the extent in lieu of
income taxes) actually paid in cash by the Parent or its Subsidiaries in
such Fiscal Year, plus (in the case of extraordinary items consisting of a
gain or income) and minus (in the case of extraordinary items consisting of
a loss or expense) (g) the cash component (if any) of any extraordinary
item (but excluding, in each case, any extraordinary item covered by clause
(h) below) in such Fiscal Year, minus (in the case of a gain) and plus (in
the case of a loss) (h) any gain or loss from any Asset Disposition in such
Fiscal Year, minus (i) any restructuring charges or restructuring expenses
paid in cash by the Parent and its Subsidiaries in such Fiscal Year to the
extent such charges or expenses are added-back in calculating EBITDA
pursuant to clause (vii) of the definition of EBITDA and minus (i) any
Fifth Amendment Expenses (as defined in the definition of EBITDA) paid in
cash
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by the Parent and its Subsidiaries in such Fiscal Year and added-back in
calculating EBITDA pursuant to clause (x) of the definition of EBITDA.
Fifth Amendment Effective Date means July 31, 2009.
Four Fiscal Quarter Computation Period means each period of four
consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.
German Pledge Agreements means the German Pledge Agreements as defined
in the Guaranty and Collateral Agreement.
Minimum Liquidity and Currency Adjusted Net Sales Certificate means a
Minimum Liquidity and Currency Adjusted Net Sales Certificate in
substantially the form of Exhibit C.
Specified Assumed Exchange Rates - see the definition of Currency
Adjusted Net Sales.
Specified Availability Amount means $7,900,000, or such lesser amount
(if any) as the Required Lenders may (in their absolute discretion) agree
to in writing from time to time.
Specified Currency Prepayment Amount means, at any time, an amount
equal to $25,000,000 less the applicable Specified Availability Amount at
such time.
Technotrans Litigation means any and all claims, counterclaims or
other causes of action of the Parent or any of its Subsidiaries against
technotrans AG or its Affiliates arising out of or otherwise relating to
any patent infringements (or the like).
Technotrans Litigation Net Proceeds shall mean (i) any recovery (or
other receipt of cash proceeds) by the Parent or any of its Subsidiaries
from the Technotrans Litigation, whether from any judgment, decision,
award, settlement or otherwise less (ii) any and all out-of-pocket costs
and expenses, including out-of-pocket attorney fees and disbursements and
the out-of-pocket fees and disbursements of other outside experts, paid by
the Parent or any of its Subsidiaries in bringing or prosecuting the
Technotrans Litigation or in any settlement thereof, or in defending or
settling any counterclaims related thereto. If requested by the
Administrative Agent, the Parent shall provide reasonable evidence of the
amount(s) under clause (i) and/or (ii) of the immediately preceding
sentence.
2.02 AMENDMENT TO SECTION 1.1: AMENDMENT AND RESTATEMENT OF CERTAIN
DEFINITIONS. Section 1.1 of the Credit Agreement is hereby amended by amending
and restating the following definitions to read in their entireties as follows:
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Applicable Margin means, for any day on or after March 31, 2009, the
rate per annum set forth below (it being understood and agreed that the
Applicable Margin for (i) LIBOR Loans shall be the percentage set forth
under the column "LIBOR Margin", (ii) Base Rate Loans shall be the
percentage set forth under the column "Base Rate Margin", (iii) the Non-Use
Fee Rate shall be the percentage set forth under the column "Non-Use Fee
Rate" and (iv) the L/C Fee Rate shall be the percentage set forth under the
column "L/C Fee Rate"):
LIBOR BASE RATE NON-USE L/C FEE
MARGIN MARGIN FEE RATE RATE
------ --------- -------- -------
4.50% 3.00% 0.500% 4.50%
Bank Product Agreements means those certain cash management service
agreements and other agreements or other documents entered into from time
to time between any Loan Party and a Lender or its Affiliates or the
Administrative Agent in connection with any of the Bank Products.
Collateral Documents means, collectively, the Guaranty and Collateral
Agreement, each Mortgage (if any), each Collateral Access Agreement, the
Foreign Pledge Agreements, the German Opco Security Documents (as defined
in the Guaranty and Collateral Agreement), each control agreement and any
other agreement or instrument pursuant to which at any time the Parent, any
Subsidiary or any other Person grants or purports to grant collateral to
the Administrative Agent for the benefit of the Lenders or otherwise
relates to such collateral.
EBITDA means, for any period, Consolidated Net Income for such period
plus (without duplication), in each case to the extent deducted in
determining such Consolidated Net Income in such period, (i) Interest
Expense, (ii) income tax expense and franchise tax expense (to the extent
in lieu of income tax expense), (iii) depreciation and amortization, (iv)
non-cash charges (if any) under FAS No. 142 regarding the impairment of
goodwill, (v) other non-cash impairment charges with respect to long-term
assets (for the avoidance of doubt there is no "add-back" under this clause
(v) or any other clause of this definition for any increases in the
reserves with respect to inventory or accounts receivable or for any
write-off with respect to inventory or accounts receivable), (vi) non-cash
write offs of previously capitalized financing costs, (vii) restructuring
charges or restructuring expenses (whether cash or non-cash) incurred by
the Parent or its Subsidiaries with respect to (a) the closure or
consolidation of plants or offices, (b) rent reserves for closed or
consolidated plants or offices and (c) severance payments for employees
terminated as part of a general downsizing, (viii) establishment or
increase in reserves for uninsured litigation claims provided that the
aggregate add-back under this clause (viii) shall not exceed $100,000 for
such period, (ix) non-cash expenses (if any) resulting from the grant by
the Parent of Capital Securities (including options), and (x)
non-capitalized one-time out-of-pocket fees (including the Amendment Fee
(as defined in Amendment No. 5) and any
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fees payable pursuant to the Agent Fee Letter in connection with Amendment
No. 5) and legal and financial advisor expenses, not to exceed $998,000 in
the aggregate for purposes of this clause (x), incurred (in such period) by
the Parent and its Subsidiaries in connection with the negotiation,
execution and delivery of Amendment No. 5 and any documents prepared and
delivered in connection therewith or any term sheet relating thereto (such
one-time fees and expenses, the "Fifth Amendment Expenses"), all on a
consolidated basis of the Parent and its Subsidiaries.
Fixed Charge Coverage Ratio means, for any Four Fiscal Quarter
Computation Period, the ratio of (a) the total for such Four Fiscal Quarter
Computation Period of EBITDA minus the sum of (i) income taxes (and
franchise taxes in lieu of income taxes) paid, or required to be paid, in
cash by the Parent and its Subsidiaries in such Four Fiscal Quarter
Computation Period plus (ii) all Capital Expenditures of the Parent and its
Subsidiaries for such Four Fiscal Quarter Computation Period to the extent
not financed (it being agreed that Capital Expenditures paid with the
proceeds of Revolving Loans shall not be considered financed for such
purposes) to (b) the sum for such Four Fiscal Quarter Computation Period of
(i) Interest Expense with respect to such Four Fiscal Quarter Computation
Period plus (ii) all payments of principal of Debt (including the Term
Loans but excluding payments required under Section 6.2.2 and also
excluding required payments of the Revolving Loans) required to be paid by
the Parent or its Subsidiaries in such Four Fiscal Quarter Computation
Period plus (iii) any Rabbi Trust Permitted Payments made in such Four
Fiscal Quarter Computation Period.
Foreign Pledge Agreements shall mean (i) the German Pledge Agreements,
(ii) the Pledge Agreement between BEC BV and the Administrative Agent,
pledging the shares of Xxxxxxx Jimek AB, (iii) the respective Share Pledge
Agreements, as supplemented and modified by any Undertaking and
Acknowledgement(s) if applicable, and any other share pledge modifications,
agreements, undertakings and acknowledgments pledging the shares of BEC BV
and Xxxxxxx Graphic Equipment B.V. in favor of the Administrative Agent at
any time entered into (collectively, the "Netherlands Pledge Agreements"),
and (iv) the Stock Pledge Agreement pledging the shares of Japan-Xxxxxxx
Ltd. in favor of the Administrative Agent.
German Revolving Commitment or German Revolving Loan Commitment means,
with respect to a Permanent Lender at the applicable time, the commitment
of such Permanent Lender to make German Revolving Loans. The initial amount
(in Dollars) of the respective German Revolving Commitment of each initial
Permanent Lender that has made such a commitment is set forth in Annex A
hereto; and, as of the Fifth Amendment Effective Date, the amount (in
Dollars) of the respective German Revolving Commitment of each Permanent
Lender that has made such a commitment is also set forth in Annex A hereto.
The German Revolving Commitment of each Permanent Lender may be reduced
pursuant to Section 6. The German Revolving Commitment(s) of the applicable
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assigning and assignee Permanent Lender shall be adjusted to give effect to
any assignments of a German Revolving Commitment(s) pursuant to Section
15.6.1.
German Revolving Commitments or the German Revolving Loan Commitments
means, collectively, the aggregate amount, at the applicable time, of all
German Revolving Commitments of all Permanent Lenders. The initial
aggregate amount of the German Revolving Commitments shall be $15,000,000
and, as of the Fifth Amendment Effective Date, the aggregate amount of the
German Revolving Commitments shall be $5,000,000.
Loan Documents means this Agreement, the Notes, the Letters of Credit,
the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee
Letter, the Collateral Documents, any applicable subordination agreements
(if any), and all documents, instruments and agreements at any time
delivered in connection with the foregoing.
Obligations means all obligations (monetary (including post-petition
interest, allowed or not) or otherwise) of any Loan Party under this
Agreement and any other Loan Document including Attorney Costs and any
reimbursement obligations of each Loan Party in respect of Letters of
Credit (including those to the Issuing Lender or any other applicable
Person) and surety bonds, all Hedging Obligations of any Loan Party
permitted hereunder which are owed to any Lender or its Affiliate or the
Administrative Agent (whether or not such Lender or the Person acting as
Administrative Agent subsequently is no longer a party to this Agreement),
and all Bank Product Obligations, all in each case howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent,
now or hereafter existing, or due or to become due.
Parent Revolving Commitment or Parent Revolving Loan Commitment means,
with respect to a Permanent Lender at the applicable time, the commitment
of such Permanent Lender to make Parent Revolving Loans. The initial amount
(in Dollars) of the respective Parent Revolving Commitment of each initial
Permanent Lender that made such a commitment is set forth in Annex A
hereto; and, as of the Fifth Amendment Effective Date, the amount (in
Dollars) of the respective Parent Revolving Commitment of each Permanent
Lender that has made such a commitment is also set forth in Annex A hereto.
The Parent Revolving Commitment of each Permanent Lender may be reduced
pursuant to Section 6. The Parent Revolving Commitment(s) of the applicable
assigning and assignee Permanent Lender shall be adjusted to give effect to
any assignments of a Parent Revolving Commitment pursuant to Section
15.6.1.
Rabbi Trust Existing Contributions means cash contributions made by
the Parent to the Rabbi Trust prior to the Closing Date and aggregating no
more than $1,250,000.
Rabbi Trust Permitted Payments shall mean the following contributions
to the Rabbi Trust made after the Closing Date: (a) cash contributions made
prior to
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January 1, 2009 in compliance with the terms and provisions of this
Agreement (as it existed at the time of such contributions) and (b) upon
the occurrence of a Potential Change of Control (as defined in the Rabbi
Trust Agreement as constituted on November 21, 2006) the Parent shall be
permitted to make those contributions required to be made (as a result of
the Potential Change of Control) under the Rabbi Trust Agreement (as
constituted on November 21, 2006).
Required Lenders means Permanent Lenders whose Pro Rata Shares are
equal (in the aggregate) to at least 66 2/3% as determined pursuant to
clause (d) of the definition of "Pro Rata Share".
Specified Permitted Redemption means (i) the $1,721,000 of redemptions
consummated by the Parent prior to February 26, 2008 pursuant to the
Announced 1999 Stock Repurchase Program (as defined below) and (ii)
redemptions (if any) by the Parent, on or after February 26, 2008 and prior
to January 1, 2009, of shares of the Parent's Class A Common Stock in
compliance with the terms and provisions of this Agreement (as it existed
at the time of such redemption). The "Announced 1999 Stock Repurchase
Program" means the stock repurchase program announced by the Parent on
November 3, 1999 pursuant to which program the Parent was authorized
(pursuant to prior resolutions adopted by the Parent's Board of Directors)
to utilize up to $5,000,000 to repurchase its Class A Common Stock.
Borrowers acknowledge and agree that no Specified Permitted Redemptions are
permitted to be made after January 1, 2009.
Total Debt to EBITDA Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (a) Total Debt as of such day to (b) EBITDA for the
Four Fiscal Quarter Computation Period ending on such day.
2.03 AMENDMENT TO SECTION 1.1: AMENDMENT OF INTEREST PERIOD DEFINITION.
Section 1.1 of the Credit Agreement is hereby amended by amending the definition
"Interest Period" as follows:
The definition of "Interest Period" in Section 1.1 of the Credit
Agreement is hereby amended by deleting "one, two, three or six months
thereafter as selected" where it appears therein, and inserting, in
lieu thereof, "(i) prior to the Fifth Amendment Effective Date, one
(1), two (2), three (3) or six (6) months thereafter and (ii) on or
after the Fifth Amendment Effective Date, one (1) month thereafter
(unless additional periods are otherwise consented to as Interest
Periods by the Required Lenders in their sole discretion), as selected
(to the extent available)".
2.04 AMENDMENT TO SECTION 1.1: AMENDMENT TO DEFINITION OF CHANGE OF
CONTROL. The definition of Change of Control in Section 1.1 of the Credit
Agreement is hereby amended by deleting the phrase "any Change of Control as
defined in the Rabbi Trust Agreement" and inserting in lieu thereof the phrase
"any Change of Control or Potential Change of Control as those terms are
respectively defined in the Rabbi Trust Agreement".
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2.05 AMENDMENT TO SECTION 1.1: DELETION OF DEFINITIONS. Section 1.1 of the
Credit Agreement is hereby amended by deleting the definition "Computation
Period".
2.06 AMENDMENT TO SECTION 2.1.2. Section 2.1.2 of the Credit Agreement is
hereby amended by deleting the last sentence thereof and substituting in lieu
thereof the following:
The Parent Revolving Loans may (i) before the Fifth Amendment Effective
Date, be borrowed in Dollars or Euros and (ii) on or after the Fifth
Amendment Effective Date, only be borrowed in Dollars. In addition to (and
not in impairment of) any other limitation on the borrowing of the Parent
Revolving Loans contained in this Agreement, the Parent agrees to also
comply with the limitations set forth in Section 11.14.6(b).
2.07 AMENDMENT TO SECTION 2.1.3. Section 2.1.3 of the Credit Agreement is
hereby amended as follows:
(a) by amending and restating clause (ii) of the first sentence thereof to
read in its entirety as follows:
(ii)(a) after the Initial German Revolving Loan, only the German Opcos
shall be permitted to borrow German Revolving Loans and (b) on or
after March 31, 2009, only BGG shall be permitted to borrow German
Revolving Loans,
and
(b) by adding the following sentence to the end thereof:
In addition to (and not in impairment of) any other limitation on the
borrowing of German Revolving Loans contained in this Agreement, BGG
agrees to also comply with the limitations set forth in Section
11.14.6(b).
2.08 AMENDMENT TO SECTION 2.1.5. Section 2.1.5 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
2.1.5 L/C Commitments. Subject to Section 2.3.1, the Issuing Lender
agrees to issue letters of credit, in each case containing such terms and
conditions as are permitted by this Agreement and are reasonably
satisfactory to the Issuing Lender (each, a "Letter of Credit"), at the
request of and for the account of the Parent or a German Opco (except that
on or after the Fifth Amendment Effective Date Oxy-Dry GmbH may not request
or have issued on its account a Letter of Credit), as the case may be, from
time to time before the scheduled Termination Date and, as more fully set
forth in Section 2.3.2, each Permanent Lender with a Parent Revolving
Commitment agrees to purchase a participation in each Parent Letter of
Credit (and such obligation to so purchase shall not be impaired by any
termination of the Parent Revolving Commitments) and each Permanent Lender
with a German Revolving Commitment agrees to purchase a participation in
each German Letter of Credit (and such obligation to so purchase shall not
be impaired by any termination of the German Revolving Commitments);
provided that, the Issuing Lender shall have no obligation to issue or
increase any Letter of Credit
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(and the applicable Borrower shall have no right to request such issuance
or increase), unless (among other conditions precedent) (i) the aggregate
Dollar Equivalent (as of the most recent Revaluation Date) of the Parent
Stated Amounts and the German Stated Amounts shall not exceed $6,000,000,
(ii) the Dollar Equivalent (as of the most recent Revaluation Date) of all
Parent Revolving Outstandings shall not exceed the Parent Revolving Loan
Commitments (in Dollars), (iii) the Dollar Equivalent (as of the most
recent Revaluation Date) of all German Revolving Outstandings shall not
exceed the German Revolving Loan Commitments (in Dollars), and (iv) the
Dollar Equivalent (as of the most recent Revaluation Date) of Revolving
Outstandings shall not exceed the Revolving Commitments (in Dollars). In
addition to (and not in impairment of) any other limitations under the
Agreement with respect to the issuance (or increase) of any Letter of
Credit, (i) the Borrowers agree to also comply with the applicable
limitations set forth in Section 11.14.6(b) or (ii) if any Lender (other
than the Issuing Lender) has failed to make a required Loan hereunder or
has failed to make any required payment to the Administrative Agent or the
Issuing Lender or otherwise failed to make a required payment hereunder the
Issuing Lender shall not be required to issue (or increase) any Letter of
Credit. The Letters of Credit shall include the Initial Letters of Credit.
The Initial Letters of Credit (to the extent issued) shall be part of the
Parent Letters of Credit (and the Master Letter of Credit Agreement
executed by the Parent shall cover, among other things, the Initial Letters
of Credit (to the extent issued) as well as any other Parent Letters of
Credit). The Parent Letters of Credit may only (i) before the Fifth
Amendment Effective Date, be issued in Dollars or Euros and (ii) on or
after the Fifth Amendment Effective Date be issued in Dollars. The German
Letters of Credit may only be issued in Dollars or Euros.
2.09 AMENDMENT TO SECTION 2.3.1. Section 2.3.1 of the Credit Agreement is
hereby amended by adding to the end thereof the following sentence: "It is
hereby acknowledged and agreed that failure by Parent or any German Opco to
execute a Master Letter of Credit Agreement shall not limit or otherwise impair
the obligations of the Borrowers, any Subsidiary thereof or any other party
under this Agreement or any other Loan Document with respect to any Letter of
Credit."
2.10 AMENDMENT TO SECTION 5.1. Section 5.1 of the Credit Agreement is
hereby amended by adding the following sentence immediately after the third
sentence of Section 5.1 and immediately before the fourth sentence of Section
5.1:
(For the avoidance of doubt, Borrowers acknowledge and agree that the
limitations on borrowings set forth in Section 11.14.6 shall not, and
shall not be interpreted to, limit the non-use fees payable under this
Section 5.1.)
2.11 AMENDMENT TO SECTION 6.2.2. Section 6.2.2 of the Credit Agreement is
hereby amended as follows:
(a) by adding the following new clauses (iv) and (v) to paragraph (a)
therein as follows:
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(iv) Within three (3) Business Days of the receipt by the Parent
or any Subsidiary of the Parent of any Technotrans
Litigation Net Proceeds, in an amount equal to 100% of such
Technotrans Litigation Net Proceeds.
(v) On or before October 10, 2010, in an amount equal to fifty
percent (50%) of the Excess Cash Flow for the Fiscal Year
ending June 30, 2010.
and
(b) by adding the following to the end of paragraph (b) of such
Section 6.2.2:
In addition to, and not in limitation of, any other mandatory
prepayment provisions set forth in this Agreement, if at any time
(as of the most recent Revaluation Date) the Dollar Equivalent of
all Revolving Outstandings at any time in the period from (and
including) the Fifth Amendment Effective Date to (and including)
November 16, 2010 exceeds 105% of the Specified Currency
Prepayment Amount, the Parent shall immediately cause the
prepayment of the Revolving Loans and Cash Collateralization of
the outstanding Letters of Credit, or do a combination of the
foregoing (provided, that if so instructed by the Administrative
Agent, prepayments shall be made to eliminate the excess before
any Cash Collateralization), in an amount sufficient to eliminate
such excess. Nothing contained in this Section 6.2.2(b) shall, or
shall be interpreted to, impair any limitation contained in this
Agreement on the borrowing of Revolving Loans or the issuance or
increase of any Letters of Credit. Notwithstanding anything
contained in Section 6.2.2(d) to the contrary, the Parent shall
not have the option provided for in Section 6.2.2(d) with respect
to a prepayment required under the third sentence of this Section
6.2.2(b) unless the Administrative Agent in its absolute
discretion permits the Parent to use such option.
2.12 AMENDMENT TO SECTION 9.4. Section 9.4 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
9.4 Financial Condition.
The audited consolidated financial statements of the Parent and its
Subsidiaries as at (and for the Fiscal Years ended) June 30, 2007 and
June 30, 2008, and the unaudited consolidated financial statements of
the Parent and its Subsidiaries as at (and for the nine months ended)
March 31, 2009, copies of each of which have been delivered to the
Administrative Agent and each Lender, were prepared in accordance with
GAAP (subject, in the case of such unaudited statements, to the
absence of footnotes and to normal year-end adjustments) and present
fairly, in all material respects, the consolidated financial condition
of the Parent and its
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Subsidiaries as at such dates and the results of their operations and
cash flows for the periods then ended.
2.13 AMENDMENT TO SECTION 9.5. Section 9.5 of the Credit Agreement is
hereby amended by deleting the date "September 30, 2006" and inserting the date
"March 31, 2009".
2.14 AMENDMENT TO SECTION 9.26. Section 9.26 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
9.26 Certain Rabbi Trust Payments. To the best knowledge of the
Parent, as of the Fifth Amendment Effective Date the amount of
aggregate remaining cash contributions necessary to fully fund the
projected liabilities under the Plans (as defined in the Rabbi Trust
Agreement) would not exceed $3,700,000.
2.15 AMENDMENT TO SECTION 10.1.3. Section 10.1.3 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
10.1.3 Compliance Certificates. Contemporaneously with the furnishing
of a copy of each annual audit report pursuant to Section 10.1.1 and
each set of quarterly statements pursuant to Section 10.1.2, an
accompanying duly completed Compliance Certificate, with appropriate
insertions and signed by a Senior Officer of the Parent, containing
(i) a computation of all applicable financial covenants and
restrictions set forth in Section 11.14 (except for the Currency
Adjusted Net Sales financial covenant under Section 11.14.4 and the
minimum liquidity financial covenant under Section 11.14.6, it being
agreed that Section 10.1.6(a) shall cover the certifications as to the
calculation of such financial covenants), (ii) a statement that such
officer has not become aware of any Event of Default or Unmatured
Event of Default that has occurred and is continuing or, if there is
any such event, describing it and the steps, if any, being taken to
cure it, and (iii) a written statement of the Parent's management
setting forth a discussion of the financial condition, changes in
financial condition and results of operations of the Parent and its
Subsidiaries. In addition, to, and not in limitation of, any
obligations under the immediately preceding sentence, the Compliance
Certificate delivered in connection with quarterly statements (A) for
each of the first three Fiscal Quarters of the Fiscal Year ending June
30, 2010 shall also contain a separate computation of the Capital
Expenditures for such Fiscal Quarter and for the elapsed portion of
such Fiscal Year ending with such Fiscal Quarter and (B) for the
Fiscal Quarter ending September 30, 2010 shall also contain a separate
computation of EBITDA for such Fiscal Quarter.
2.16 AMENDMENT TO SECTION 10.1.6. Section 10.1.6 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
10.1.6 Certain Additional Deliverables.
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(a) Within 30 days after the end of each month (commencing with the
month of July of 2009 and ending (in the case of clauses (i) and (ii)
below) with the month of September of 2010 and ending (in the case of
clause (iii) below) with the month of November of 2010), a duly
completed Minimum Liquidity and Currency Adjusted Net Sales
Certificate, with appropriate insertions and signed by a Senior
Officer of the Parent (i) attaching (and certifying as to) a report
(in detail reasonably satisfactory to the Administrative Agent
including a breakdown of actual consolidated net sales of the Parent
and its Subsidiaries by currency and comparing such actual net sales
to "budgeted" net sales and showing (for all sales made on or after
July 1, 2009) the conversion of net sales in all applicable foreign
currencies using the Specified Assumed Exchange Rates (and showing for
sales for June of 2009 the applicable exchange rates referred to in
the definition of Currency Adjusted Net Sales for such sales) in order
to obtain the applicable Currency Adjusted Net Sales) of the Currency
Adjusted Net Sales for such month and for the Currency Adjusted Net
Sales for the consecutive three (3) month period ending with such
month, (ii) certifying as to whether or not the applicable Currency
Adjusted Net Sales financial covenant in Section 11.14.4 for the three
(3) months ending on such date has been satisfied and (iii) certifying
(in detail reasonably satisfactory to the Administrative Agent) as to
whether or not the minimum liquidity financial covenant set forth in
Section 11.14.6 and any prepayment requirements under the third
sentence of Section 6.2.2(b) have each been satisfied;
(b) Within 15 days after the end of each month (commencing with the
month of July of 2009), a so-called "flash report" (in the same form
as flash reports delivered to the Administrative Agent and Lenders
prior to the Fifth Amendment Effective Date with such adjustments
thereto as may reasonably be required by the Administrative Agent)
showing the preliminary Currency Adjusted Net Sales figures for such
month;
(c) On a bi-weekly basis, rolling updated 13-week cash flow forecasts
for the Parent and its Subsidiaries and accompanying "forecasting
accuracy" schedule (such forecasts and schedule to be in the same
format as the 13-week cash flow forecasts and forecasting accuracy
schedules delivered to the Administrative Agent and the Lenders prior
to the Fifth Amendment Effective Date); and
(d) At the earlier of (i) the making of any mandatory prepayment
pursuant to Section 6.2.2(a)(v) or (ii) October 10, 2010, a
certificate (signed by a Senior Officer of the Parent) setting forth
(in detail reasonably satisfactory to the Administrative Agent) the
Excess Cash Flow for the Fiscal Year ending June 30, 2010.
2.17 AMENDMENT TO SECTION 10.1.8. Section 10.1.8 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
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10.1.8 Projections. As soon as practicable, and in any event (i) for
the Fiscal Year commencing July 1, 2010, no later than June 15,
2010, and (ii) for any Fiscal Year other than the Fiscal Year
commencing July 1, 2010, no later than the last Business Day of
the first month of such Fiscal Year, financial projections for
the Parent and its Subsidiaries for such Fiscal Year (including
quarterly operating and cash flow budgets) prepared in a manner
consistent with the projections delivered by the Parent to the
Lenders prior to the Fifth Amendment Effective Date, or otherwise
in a manner reasonably satisfactory to the Administrative Agent,
accompanied by a certificate of a Senior Officer of the Parent on
behalf of the Parent to the effect that (a) such projections were
prepared by the Parent in good faith, (b) the Parent believes the
assumptions contained in such projections are reasonable and (c)
such projections have been prepared in accordance with such
assumptions.
2.18 AMENDMENT TO SECTION 10.2. Section 10.2 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Keep, and cause each Subsidiary of the Parent to keep, its books and
records in accordance with sound business practices sufficient to
allow the preparation of financial statements in accordance with GAAP;
permit, and cause each Subsidiary of the Parent to permit, any Lender
or the Administrative Agent or any representative thereof, during
reasonable business hours and upon reasonable notice (provided that no
notice need be given during the existence of an Event of Default), to
inspect the properties and operations of the Parent or any of its
Subsidiaries and permit, and cause each Subsidiary of the Parent to
permit, at any reasonable time and with reasonable notice (or at any
time without notice if an Event of Default exists), any Lender or the
Administrative Agent or any representative thereof to visit any or all
of its offices, to discuss its financial matters with its officers and
its independent auditors (and the Borrowers hereby authorize such
independent auditors to discuss such financial matters with any Lender
or the Administrative Agent or any representative thereof), and to
examine (and, at the expense of the Borrowers, photocopy extracts
from) any of its books or other records; and permit, and cause each
Subsidiary of the Parent to permit, the Administrative Agent and its
representatives during reasonable business hours and upon reasonable
notice (provided, that no notice need be given during the existence of
an Event of Default), to inspect the Inventory and other tangible
assets of the Parent and its Subsidiaries, and to inspect, audit,
check and make copies of and extracts from the books, records,
computer data, computer programs, journals, orders, receipts,
correspondence and other data relating to Inventory, Accounts and
other assets or the operations of the Parent and its Subsidiaries. All
such inspections or audits by the Administrative Agent shall be at the
Parent's expense. If any Event of Default exists or if any Borrower
requests any modification of the Loan Documents, the Administrative
Agent (or its
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legal counsel) may, in addition to any other rights and remedies
provided for herein, retain an outside financial advisor with respect
to any matters relating to the Parent or its Subsidiaries (and/or the
Loan Documents), and the Parent shall pay the reasonable fees (and
disbursements) of such advisor.
2.19 AMENDMENT TO SECTION 10.6. Section 10.6 of the Credit Agreement is
hereby amended by adding to the end thereof the following sentence: "In addition
to (and not in impairment of) any other limitations set forth herein, no
Revolving Loans proceeds shall be used to fund any Rabbi Trust Permitted
Payments made after January 1, 2009."
2.20 AMENDMENT TO SECTION 10.9. Section 10.9 of the Credit Agreement is
hereby amended by adding the following sentence to the end thereof: "Upon
receipt by the applicable Borrower(s) of an affidavit and indemnity agreement in
customary form from an authorized representative of any Lender stating the
circumstances of the loss, theft, destruction or mutilation of any Note (and in
the case of any such mutilation, on surrender and cancellation of such Note) and
providing for customary indemnification resulting from the loss of such Note,
the applicable Borrower(s) will promptly execute and deliver, in substitution
for same, a new Note of like tenor."
2.21 AMENDMENT TO SECTION 10.10. Section 10.10 of the Credit Agreement is
hereby amended by adding to the end thereof, but before the period, the
following parenthetical phrase: "(the German Borrowers shall also comply with
any provisions in the "German Opco Security Documents" (as defined in the
Guaranty and Collateral Agreement) with respect to deposit accounts)".
2.22 AMENDMENT TO SECTION 11.1. Section 11.1 of the Credit Agreement is
hereby amended by:
(a) deleting the amount "$2,500,000" in Section 11.1(b) and inserting
in lieu thereof the amount $1,000,000".
(b) amending Section 11.1(d) by inserting the following phrase at the
end thereof immediately after the phrase "that is also not a Material
Subsidiary;":
"provided, further, that in addition to (and not in limitation
of) any of the other restrictions set forth above or otherwise
contained in this Agreement (x) any Debt incurred under the
preceding clauses (ii) or (iii) on or after March 31, 2009 must
be incurred in the ordinary course of business of the Parent and
its Subsidiaries and be consistent with the practices of the
Parent and its Subsidiaries prior to March 31, 2009 and (y)
Xxxxxxx-Japan, Ltd. shall not be permitted to incur (i.e. become
liable under) any Debt under this Section 11.1(d) on or after
March 31, 2009;"
(c) amending and restating Section 11.1(f) to read in its entirety as
follows:
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(f) Debt consisting of reimbursement obligations with
respect to bank guaranties issued by one or more Swedish banks in
the ordinary course of business and securing the performance
obligations (under contracts entered into in the ordinary course
of business) of Xxxxxxx Jimek AB; provided, that (i) such
reimbursement obligations are secured only by the Swedish Letter
of Credit (as defined in Amendment No. 5) and (ii) the aggregate
sum of (A) the aggregate outstanding amounts of such bank
guaranties and (B) the aggregate sum of any outstanding
reimbursement obligations with respect any amounts drawn on such
bank guaranties shall not exceed, at any one time outstanding,
15,000,000 Swedish Krona;
and
(d) amending and restating Section 11.1(i) to read in its entirety as
follows:
(i) reimbursement obligations with respect to bank
guaranties issued by one or more German banks in the ordinary
course of business and securing the performance obligations
(under contracts entered into in the ordinary course of business)
of the German Opcos and, if applicable, any other European
Foreign Subsidiary (including the Existing German Bank Guaranty
Obligations as defined in Section 7.03 of Amendment No. 5)
provided, that (i) such reimbursement obligations are either
unsecured or secured only by the pledge of cash deposits (held
with the bank(s) issuing such bank guaranties) in an aggregate
amount no greater than the then outstanding amount of such bank
guaranties (limited as provided in clause (ii) below) that such
pledged cash deposits secure and (ii) the aggregate sum of (A)
the aggregate outstanding amounts of such bank guaranties and (B)
the aggregate sum of any outstanding reimbursement obligations
with respect any amounts drawn on such bank guaranties shall not
exceed, at any one time outstanding, the Dollar Equivalent of
$1,000,000;
2.23 AMENDMENT TO SECTION 11.2. Section 11.2(b) of the Credit Agreement is
hereby amended by adding to the end thereof the following phrase immediately
after the phrase "adequate reserves;": "and the pledges of cash deposits
referred to in subclause (a) of Section 11.1(i) as limited by subclause (b) of
Section 11.1(i);".
2.24 AMENDMENT TO SECTION 11.4. Section 11.4 of the Credit Agreement is
hereby amended by (a) inserting at the end of clause (iii) thereof immediately
before ", and" the phrase "may be made" and (b) deleting the phrase
"distributions by" in clause (iv) thereof and inserting in lieu thereof the
phrase "distributions may be made by".
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2.25 AMENDMENT TO SECTION 11.5. Section 11.5 of the Credit Agreement is
hereby amended by (a) amending and restating clause (v) thereof to read in its
entirety as follows: "(v) [Reserved];", (b) deleting the phrase "the sale of" in
clause (vi) thereof and inserting in lieu thereof the phrase "the sale, prior to
March 31, 2009, of" and (c) deleting the phrase "any Acquisition" in clause
(vii) thereof and inserting in lieu thereof the phrase "any Acquisition,
consummated prior to March 31, 2009,". The Borrowers acknowledge and agree that
as a result of the modification of clause (v) of Section 11.5 of the Credit
Agreement set forth above (1) the sale of Oxy-Dry Food Blends, Inc. is not
permitted (unless such sale is hereafter consented to in writing by the Required
Lenders in their absolute discretion) and (2) the parenthetical phrase "(subject
to clause (v) of Section 11.5)" contained in Section 6.2.2(a)(i) of the Credit
Agreement is no longer applicable.
2.26 AMENDMENT TO SECTION 11.11. Section 11.11 of the Credit Agreement is
hereby amended by:
(a) Amending Section 11.11(a) by inserting the following phrase at the
end thereof immediately after the phrase "of this Section 11.11(a);":
"provided, further, that in addition to (and not in limitation of) any
of the other restrictions set forth above in this Section 11.11(a) or
otherwise contained in this Agreement (1) the contributions made under
the preceding clauses (ii) and (iii) of this Section 11.11(a) on or
after March 31, 2009 must be incurred in the ordinary course of
business of the Parent and its Subsidiaries and consistent with the
practices of the Parent and its Subsidiaries prior to March 31, 2009
and (2) no capital contributions may be made to Xxxxxxx-Japan, Ltd. on
or after March 31, 2009;";
and
(b) Deleting the phrase "other Investments not consisting of" in
clause (j) thereof and inserting in lieu thereof the phrase "other
Investments consummated prior to March 31, 2009 and not consisting
of".
2.27 AMENDMENT TO SECTION 11.14. Section 11.14 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
11.14 Financial Covenants.
11.14.1 EBITDA. Not Permit EBITDA for the following periods to be less
than the following respective amounts of minimum EBITDA set forth
below for such period:
PERIOD MINIMUM EBITDA
------------------------------------------ --------------
The two consecutive Fiscal Quarters ending $1,100,000
December 31, 2009
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PERIOD MINIMUM EBITDA
------------------------------------------- --------------
The three consecutive Fiscal Quarters
ending March 31, 2010 $2,300,000
The four consecutive Fiscal Quarters ending
June 30, 2010 $4,100,000
Each Four Fiscal Quarter Computation Period
ending on or after September 30, 2010 $12,000,000
11.14.2 Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio for any Four Fiscal Quarter Computation Period,
commencing with the Four Fiscal Quarter Computation Period ending
September 30, 2010, to be less than 1.25 to 1.0
11.14.3 Total Debt to EBITDA Ratio. Not permit the Total Debt to
EBITDA Ratio as of the last day of any Four Fiscal Quarter Computation
Period, commencing with the Four Fiscal Quarter Computation Period
ending September 30, 2010, to exceed 3.00 to 1.0.
11.14.4 Currency Adjusted Net Sales. Not permit Currency Adjusted Net
Sales for the following consecutive three-month periods to be less
than the following respective amounts set forth below for such
three-month period:
Minimum Currency
Adjusted Net Sales
Consecutive Three for the Applicable
Months Ending Period
--------------------- ------------------
July 31, 2009 $35,152,500
August 31, 2009 $33,100,500
September 30, 2009 $33,525,500
October 31, 2009 $38,165,100
November 30, 2009 $38,687,300
December 31, 2009 $36,116,300
January 31, 2010 $33,658,800
February 28, 2010 $33,890,400
March 31, 2010 $37,709,300
April 30, 2010 $40,563,300
May 31, 2010 $40,080,000
June 30, 2010 $40,612,800
July 31, 2010 $37,000,000
August 31, 2010 $36,300,000
September 30, 2010 $35,100,000
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11.14.5 Capital Expenditures. Not permit Capital Expenditures of the
Parent and its Subsidiaries on a consolidated basis for the Fiscal
Year ending June 30, 2010 to exceed $1,000,000.
11.14.6 Minimum Liquidity.
(a) Not permit the Dollar Equivalent of the consolidated cash and Cash
Equivalent Investments of the Parent and its Domestic Subsidiaries and
the European Foreign Subsidiaries of the Parent, in each case
unrestricted and without any Liens thereon except in favor of the
Administrative Agent and maintained in a deposit account (or money
market type account linked to a deposit account), to at any time on or
after the Fifth Amendment Effective Date to (and including) November
16, 2010 be less than $300,000; and
(b) Neither the Parent nor BGG shall, on or after the Fifth Amendment
Effective Date to (and including) November 16, 2010 (i) make any
borrowing of a Revolving Loan or request the issuance of or increase
in any Letter of Credit if immediately after such borrowing, issuance
or increase, as the case may be, the sum of (i) the Dollar Equivalent
of all Revolving Outstandings plus (ii) the then applicable Specified
Availability Amount exceeds $25,000,000. Nothing contained in this
Section 11.14.6(b) shall, or shall be interpreted to, impair any other
limitation contained in this Agreement with respect to the borrowing
of Revolving Loans or the issuance or increase of any Letters of
Credit.
2.28 AMENDMENT TO SECTION 11.17. Section 11.17 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
11.17 PAYMENTS ON THE RABBI TRUST; AMENDMENT TO ELIMINATE INSURANCE
POLICIES FROM RABBI TRUST. Not, and not permit any Subsidiary to, make
any payment, contribution or other transfer of monies or other
properties to the Rabbi Trust other than (i) the Rabbi Trust Existing
Contributions and (ii) the Rabbi Trust Permitted Payments. The Parent
shall cause an amendment to the Rabbi Trust Agreement eliminating the
obligation of the Parent (or any Subsidiary of the Parent) to deliver
the Insurance Policies (as defined in the Rabbi Trust Agreement prior
to such amendment) and otherwise removing references to such Policies
and the obligations with respect thereto to be executed and delivered
no later than September 30, 2009, such amendment to be in form and
substance reasonably satisfactory to the Administrative Agent.
2.29 AMENDMENT TO SECTION 13.1.5. Section 13.1.5 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
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13.1.5. Non-Compliance with Loan Documents. (a) Failure by any Loan
Party to comply with or to perform any covenant set forth in Sections
10.1.5, 10.1.6(d), 10.3(b) (unless such failure with respect to
Section 10.3(b) is of a non-material nature in which case such failure
shall be covered by clause (d) below), 10.5 or 10.6 or Section 11; (b)
failure of any Loan Party to comply with any provisions of the Agent
Fee Letter (and not constituting an Event of Default under any other
provision of this Section 13 above) and the continuance of such
failure described in this clause (b) for 20 days after the earlier to
occur of (i) any Lender or the Administrative Agent providing notice
of such failure or (ii) any Senior Officer of the Parent or any of its
Subsidiaries becoming aware of such failure; (c) failure by any Loan
Party to comply with or to perform any covenant set forth in Sections
10.1.1, 10.1.2, 10.1.3, 10.1.4, 10.1.6 (except 10.1.6(d)), 10.1.7,
10.1.8 10.1.9 or 10.1.10 and continuance of such failure described in
this clause (c) for 10 Business Days, (except that in the case of a
failure with respect to Section 10.1.6 covered by this clause (c) the
period shall be 5 Business Days not 10 Business Days) after the
earlier to occur of (i) any Lender or the Administrative Agent
providing notice of such failure or (ii) any Senior Officer or the
Parent or any of its Material Subsidiaries becoming aware of such
failure; or (d) failure by any Loan Party to comply with or to perform
any other provision of this Agreement or any other Loan Document (and
not constituting an Event of Default under any other provision of this
Section 13) and continuance of such failure described in this clause
(d) for 30 days after the earlier to occur of (i) any Lender or the
Administrative Agent providing notice of such failure or (ii) any
Senior Officer or the Parent or any of its Material Subsidiaries
becoming aware of such failure.
2.30 AMENDMENT TO SECTION 15.5. Section 15.5 of the Credit Agreement is
hereby amended by deleting the phrase "acting it is" in the third sentence
thereof and inserting in lieu thereof the phrase "acting in its".
2.31 AMENDMENT TO SECTION 15.17. Section 15.17 of the Credit Agreement is
hereby amended by amending and restating clause (E) thereof (which clause (E)
commences with "(E) THE EXECUTION" and ends with "BY ANY OF THE LENDER PARTIES,"
to read in its entirety as follows: "(E) THE EXECUTION OR DELIVERY OF THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, THE NON-PERFORMANCE BY ANY CREDIT
PARTY OF ITS OBLIGATIONS HEREUNDER OR THEREUNDER, THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BY ANY LENDER PARTY, THE MAKING OF ANY LOAN
(OR THE USE OR PROPOSED USE OF ANY PROCEEDS OF ANY LOAN), THE ISSUANCE OF ANY
LETTER OF CREDIT (OR THE USE OR PROPOSED USE THEREOF) OR ANY DRAWING (OR
REQUESTED DRAWING) UNDER ANY LETTER OF CREDIT, OR, IN THE CASE OF THE
ADMINISTRATIVE AGENT (AND ANY SUB-AGENT
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THEREOF) AND ITS AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES, THE
ADMINISTRATION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,".
2.32 AMENDMENT TO SECTION 15.21. Section 15.21(a) of the Credit Agreement
is hereby amended by deleting the phrase "or any of the Lenders" in the first
sentence thereof and inserting in lieu thereof the phrase "or any of the Lenders
(or their respective Affiliates)".
2.33 AMENDMENT TO ANNEX A. Annex A to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Annex A attached
hereto and hereby made a part hereof.
2.34 AMENDMENT TO EXHIBIT B. Exhibit B to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit B attached
hereto and hereby made a part hereof.
2.35 AMENDMENT TO EXHIBIT C. Exhibit C to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit C attached
hereto and hereby made a part hereof.
2.36 AMENDMENT TO EXHIBIT E. Exhibit E to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit E attached
hereto and hereby made a part hereof.
2.37 AMENDMENT TO EXHIBIT F. Exhibit F to the Credit Agreement is hereby
amended and restated to read in its entirety as set forth in Exhibit F attached
hereto and hereby made a part hereof.
2.38 AMENDMENT TO SCHEDULES. The Schedules to the Credit Agreement are
hereby amended by deleting Schedule 11.1 to the Credit Agreement and any
reference to such Schedule 11.1 in the Credit Agreement is hereby deleted in
each instance and any corresponding conforming changes in connection therewith
shall be deemed made.
2.39 FURTHER AMENDMENTS TO CREDIT AGREEMENT. Reference is hereby made to
Sections 7.03, Section 7.04 and Section 7.05 of this Amendment and the further
modifications of the Credit Agreement (and any other applicable Loan Document)
set forth therein; and it is hereby agreed that such modifications are in full
force and effect.
ARTICLE III
CERTAIN WAIVERS
3.01 WAIVER. The Required Lenders hereby waive the "Specified Events of
Default" (as defined in the Modification and Limited Waiver). The foregoing
waivers in this Section 3.01 are limited solely to such "Specified Events of
Default" and shall not apply to any other Events of Default or Unmatured Events
of Default which may now or hereafter exist. Without limiting the generality of
the immediately preceding sentence, the Borrowers (and other Credit Parties)
hereby acknowledge and agree that the waivers set forth in the first sentence of
this paragraph do not apply to any breach of Sections 11.14.1, 11.14.2 or
11.14.3 of the Credit Agreement other than the breach of Section 11.14.1 for the
Computation Periods (as defined in the Credit
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Agreement prior to the amendments set forth in this Amendment) ending March 31,
2009 and June 30, 2009, the breach of Section 11.14.2 for the Computation Period
ending June 30, 2009, and the breach of Section 11.4.3 as of the last day of the
Computation Periods ending March 31, 2009 and June 30, 2009. Each of the
Borrowers and the other Credit Parties hereby consents to, and acknowledges the
availability of, each and every right and remedy set forth in the Credit
Agreement, the Guaranty and Collateral Agreement and the other Loan Documents
with respect to any Event of Default other than the Events of Default expressly
waived pursuant to the first sentence of this paragraph.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of the amendments set
forth in Sections 2.01 - 2.38 and the waiver set forth in Section 3.01 hereof
are subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by the Administrative Agent:
(a) The Administrative Agent shall have received the following
documents, each in form and substance satisfactory to the Administrative
Agent and its legal counsel:
(i) this Amendment duly executed by Borrowers and the other
Credit Parties and the Lenders constituting at least the Required
Lenders;
(ii) the amended and restated Agent Fee Letter; and
(iii) such other documents as reasonably requested by the
Administrative Agent;
(b) All corporate (or other organization) proceedings taken in
connection with the transactions contemplated by this Amendment and all
documents, instruments and other legal matters incident thereto shall be
satisfactory to the Administrative Agent and its legal counsel;
(c) Borrowers shall have delivered to the Administrative Agent and the
Lenders a "flash report" reporting the consolidated "Currency Adjusted Net
Sales" (as defined in the Credit Agreement after giving effect to Amendment
No. 5) for the month ending June 30, 2009;
(d) Borrowers shall have paid all costs and expenses (including
reasonable attorneys' fees and disbursements) and fees of the
Administrative Agent; and
(e) Borrowers shall have paid the first installment of the Amendment
Fee as set forth in Section 5.01.
ARTICLE V
CERTAIN COVENANTS
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5.01 AMENDMENT FEE. In consideration of the Required Lenders entering into
this Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrowers hereby agree to pay
to each Lender who executes and delivers this Amendment on or before the date
hereof, an amendment fee equal to such Lender's pro-rata share of the product of
(a) the sum of the aggregate Term Loan Exposures of all Lenders on the date
hereof plus the aggregate Revolving Commitments (after giving effect to the
reduction of the Revolving Commitments set forth in this Amendment) of all
Lenders on the date hereof multiplied by (b) 0.75% (i.e., 75 basis points). This
amendment fee shall be fully earned on the date hereof and shall be payable in
four (4) equal installment payments, with the first of such payments due on the
date hereof and the next three payments respectively due three (3), six (6) and
nine (9) months following the date hereof. The phrase "pro-rata share" as used
in the immediately preceding sentence shall mean, with respect to any Lender,
the percentage obtained by dividing (i) such Lender's aggregate Revolving
Commitments (as so reduced) plus such Lender's Term Loan Exposure as of the date
hereof by (ii) the aggregate amount of Revolving Commitments (as so reduced) of
all Lenders plus the Term Loan Exposures of all Lenders as of the date hereof.
Any failure of the Borrowers to pay, when due, any such installments shall
constitute an Event of Default under the Credit Agreement. The term "Amendment
Fee" as used herein shall mean the aggregate amendment fees owed pursuant to
this Section 5.01 to those Lenders who execute and deliver this Amendment.
ARTICLE VI
NO WAIVER
6.01 NO WAIVER. Other than the waivers set forth in Section 3.01 hereof,
nothing contained in this Amendment shall be construed as a waiver by the
Administrative Agent or the Lenders of any covenant or provision of the Credit
Agreement, the Guaranty and Collateral Agreement, this Amendment, the other Loan
Documents, or of any other contract or instrument among the Borrowers and/or the
other Credit Parties, as the case may be, and the Administrative Agent and/or
the Lenders (and/or their respective Affiliates), as the case may be, and the
failure of the Administrative Agent and/or Lenders (and/or their respective
Affiliates) at any time or times hereafter to require strict performance by the
Borrowers and/or the other Credit Parties of any provision thereof shall not
waive, affect or diminish any right of the Administrative Agent and the Lenders
(or their respective Affiliates) to thereafter demand strict compliance
therewith.
ARTICLE VII
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; CONFIRMATIONS
7.01 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
Credit Agreement and the other Loan Documents. The terms and provisions of the
Credit Agreement and the other Loan Documents, as amended hereby, are ratified
and confirmed and shall continue in full force and effect. The Borrowers, the
other Credit Parties, the Lenders and the Administrative Agent agree that the
Credit Agreement and the other Loan Documents, as amended hereby, shall continue
to be legal, valid, binding obligations of the parties thereto, enforceable
against such parties in accordance with their respective terms. Without limiting
the generality of the foregoing, the Borrowers and the other Credit Parties
hereby confirm and agree that (a) all Liens under the Collateral Documents (as
amended) remain in full force and effect (as so amended) and (b) the
-23-
guaranty obligations and other obligations of the Borrowers and all other Credit
Parties under the Guaranty and Collateral Agreement (and other applicable
Collateral Documents), as amended, remain in full force and effect (as so
amended) and (as set forth in the Guaranty and Collateral Agreement) shall not
be impaired or otherwise limited by any waiver or modification set forth in this
Amendment (and nothing contained in this Amendment shall, or shall be
interpreted to, create a custom, course of dealing or other agreement or
arrangement by which the consent or confirmation of any Credit Party to any
modification or waiver is required in order to keep any obligations under the
Guaranty and Collateral Agreement (and other applicable Collateral Documents) in
full force and effect, it being agreed that no such consent or confirmation is
necessary or required in order to keep such obligations in full force and
effect). Without limiting the generality of the foregoing (or of Section 1.2(e)
of the Credit Agreement), it is hereby confirmed and agreed that any reference
in the Loan Documents to any Note shall include all amendments, restatements,
supplements and other modifications thereto and any Notes issued under Section
15.6.1 of the Credit Agreement and/or other Notes in substitution or replacement
of any Note(s). Any breach of any representation, warranty or confirmation set
forth in this Amendment by any Borrower or any other Credit Party shall be
deemed to constitute an Event of Default under the Credit Agreement.
7.02 REPRESENTATIONS AND WARRANTIES. Each of the Borrowers and the other
Credit Parties hereby represents and warrants to the Administrative Agent and
the Lenders that (a) the execution, delivery and performance of this Amendment
and any and all Loan Documents executed and/or delivered in connection herewith
have been authorized by all requisite corporate (or other applicable
organization) action on the part of such Borrower or other Credit Party, as the
case may be, and will not violate the charter, by-laws or other organizational
documents of such Borrower or other Credit Party; (b) the representations and
warranties of such Borrower or other Credit Party, as the case may be, contained
in any Loan Document are true and correct in all respects (or if the applicable
representation or warranty is not qualified by a materiality qualifier, true and
correct in all material respects) on the date hereof and on and as of the date
of execution hereof as though made on and as of each such date (except to the
extent stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all respects (or if the
applicable representation or warranty is not qualified by a materiality
qualifier, true and correct in all material respects) as of such earlier date);
(c) after giving effect to the waivers set forth in Section 3.01 hereof, no
Event of Default or Unmatured Event of Default under the Credit Agreement has
occurred and is continuing; (d) no Specified Permitted Redemption Payment and no
Rabbi Trust Permitted Payment, as each of those terms were defined in the Credit
Agreement prior to this Amendment, were made from (and including) January 1,
2009 to (and including) the date hereof; and (e) no Credit Party that is party
to the Guaranty and Collateral Agreement has changed its legal name since
November 21, 2006 except (i) Newco changed its name from Mainsee 430. VV GmbH to
Xxxxxxx Germany Holding GmbH, (ii) Oxy-Dry GmbH changed its name from Oxy-Dry
Maschinen GmbH to Xxxxxxx Oxy-Dry GmbH and (iii) Xxxxxxx Southeast Asia
Corporation changed its name from Oxy-Dry Asia Pacific, Inc.. The Borrowers and
the other Credit Parties acknowledge and agree that the unpaid principal of, and
accrued and unpaid interest under, each of the Loans as of July 31, 2009 is as
set forth below and such sums are justly owed without claim, counterclaim,
cross-complaint, offset, defense or other reduction of any kind against the
Lenders or the Administrative Agent:
-24-
(a) Parent Revolving Loans borrowed in Dollars: unpaid principal of
$12,100,000 and accrued and unpaid interest of $25,759.56 is owed by the
Parent.
(b) Parent Revolving Loans borrowed in Euros: unpaid principal of
E0 and accrued and unpaid interest of (euro)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 (euro)1,000,000 and accrued and unpaid interest of (euro)1,260 is owed
by BGG.
(e) German Revolving Loans borrowed by Oxy-Dry GmbH in Dollars: unpaid
principal of $0 and accrued and unpaid interest of $0 is owed by Oxy-Dry
GmbH.
(f) German Revolving Loans borrowed by Oxy-Dry GmbH in Euros: unpaid
principal of (euro)0 and accrued and unpaid interest of (euro)0 is owed by
Oxy-Dry GmbH.
(g) Term Loans: unpaid principal of (euro)7,364,340.98 and accrued and
unpaid interest of (euro)9,279.07 is owed by Newco.
(h) Parent Letters of Credit issued in Dollars: the portion of the
Parent Stated Amount with respect to such Letters of Credit is $382,916.00.
(i) Parent Letters of Credit issued in Swedish Krona: the portion of
the Parent Stated Amount with respect to such Letters of Credit is
5,000,000 Swedish Krona.
(j) Parent Letters of Credit issued in Euros: the portion of the
Parent Stated Amount with respect to such Letters of Credit is (euro)0.
As of the date hereof, (i) Bank of America, N.A., in its capacity as a
Lender, owns fifty percent (50%) of the outstanding Term Loans and outstanding
Revolving Loans, (ii) RBS Citizens N.A. as Lender owns thirty percent (30%) of
the outstanding Term Loans and outstanding Revolving Loans and (iii) Xxxxxxx
Bank, National Association as Lender owns twenty percent (20%) of the
outstanding Term Loans and Revolving Loans.
7.03 CONFIRMATIONS (GERMAN MASTER CREDIT CONTRACT). Reference is made to
Amendment No. 2 and to the Amendment No. 1 to Guaranty and Collateral Agreement.
Borrowers hereby confirm, represent and warrant that the Master Credit Contract
referred to in Amendment No. 2 and the Amendment No. 1 to Guaranty and
Collateral Agreement has been terminated and that all obligations of any
Borrower thereunder to the "German Bank" (as defined in Amendment No. 2) have
been paid and satisfied in full other than with respect to guaranty obligations
of Borrowers' customer contracts in an amount not to exceed $630,000 in the
aggregate as of June 30, 2009 (the "Existing German Bank Guaranty Obligations")
which such Existing German Bank Guaranty Obligations have been cash
collateralized (by the pledge of cash deposits) in an amount equal thereto.
Borrowers further confirm, agree and covenant that the Existing German Bank
Guaranty Obligations outstanding from time to time shall "count" towards the
$1,000,000 limitation set forth in Section 11.1(i) of the Credit Agreement, as
-25-
amended. As set forth in Amendment No. 2, the Existing German Bank Guaranty
Obligations shall (as shall any other bank guaranties permitted under Section
11.1(i) of the Credit Agreement, as amended) be deemed part of Debt (and Total
Debt). This Section 7.03 and Section 11.1(i) of the Credit Agreement, as
amended, supersede any inconsistent provision in Amendment No. 1 to Guaranty and
Collateral Agreement with respect to the Existing German Bank Guaranty
Obligations. Borrowers further understand and agree that the only Debt permitted
under Section 11.1(i) of the Credit Agreement (and by this Section 7.03) are the
bank guaranties described therein and that no Borrower (including any German
Borrower) may enter into any other master credit contract for any other purpose
without the consent of the Required Lenders (which consent may be granted in
their sole discretion).
7.04 CONFIRMATIONS (SWEDISH LETTER OF CREDIT). Reference is made to the
Modification and Limited Waiver. It is hereby confirmed that the Parent had
previously requested, and the Issuing Lender has issued, a Parent Letter of
Credit in the amount of 5,000,000 Swedish Krona (LaSalle Bank National
Association letter of credit #S605274 and Bank of America, N.A. letter of credit
#68030846) (as same may be renewed, extended or otherwise modified from time to
time, the "Swedish Letter of Credit" which term shall also include any letter(s)
of credit (if any) issued (in Swedish Krona) by the Issuing Lender in
substitution or replacement thereof or of any such substitute or replacement
letter(s) of credit). It is acknowledged and agreed that the Swedish Letter of
Credit is one of the Parent Letters of Credit and that the terms and provisions
of the Credit Agreement as amended, restated, supplemented or otherwise modified
from time to time (including without limitation Sections 2.1.5 and 2.3 of the
Credit Agreement) and the other Loan Documents shall apply to the Swedish Letter
of Credit. The term "Euros" as used in the Credit Agreement (and any other
applicable Loan Document), as amended, restated, supplemented or otherwise
modified from time to time, shall be deemed to mean "Swedish Krona" in
connection with the Swedish Letter of Credit. Without limiting the generality of
the immediately preceding sentence, the Dollar Equivalent of the Stated Amount
of the Swedish Letter of Credit shall be the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the Issuing Lender, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with Swedish
Krona.
7.05 CONFIRMATIONS (NETHERLANDS PLEDGE AGREEMENTS). Reference is hereby
made to Amendment No. 1 to Guaranty and Collateral Agreement the terms and
provisions of which are hereby confirmed in all respects. Without limiting the
generality of the immediately preceding sentence, it is hereby confirmed and
agreed that if any Netherlands Pledge Agreement provides for a lien priority (as
it relates to securing the applicable secured obligations thereunder) that
would, if not for this Section 7.05 (or Section 5.03 of Amendment No. 1 to
Guaranty and Collateral Agreement), result in an application of the proceeds of
the collateral or security under such Netherlands Pledge Agreements that would
be different than the order of priority set forth in Section 6.6 of the Guaranty
and Collateral Agreement (as amended), then the parties shall take such actions
(including the applicable Lender(s) purchasing participation interests) so that
such order of priority under such Section 6.6 of the Guaranty and Collateral
Agreement is, in effect, preserved.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Credit Agreement or the Guaranty and Collateral Agreement
or any other Loan Documents or under or in connection with this Amendment,
including, without limitation, any document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Loan Documents.
8.02 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
8.03 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall inure
to the benefit of the Administrative Agent, the Lenders, the Borrowers and the
other Credit Parties and their respective successors and assigns, except that no
Borrower or Credit Party may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent. It is
acknowledged and agreed that Bank of America, N.A., has, as successor by merger
to LaSalle Bank National Association, succeeded to all of the respective rights
and duties of LaSalle Bank National Association as a Lender (including without
limitation as the Issuing Lender), and the Administrative Agent under the Loan
Documents.
8.04 CERTAIN COSTS AND EXPENSES. Without in any way limiting the generality
of Sections 10.2 or 15.5 of the Credit Agreement, the Parent acknowledges and
agrees that it shall (i) promptly pay the reasonable fees and disbursements of
all legal counsel retained by the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment or any future
waiver or modification (or proposed modification or waiver whether or not
consummated), if any, of any Loan Document(s) (provided that Borrower shall not
have to pay the allocable costs of internal legal services of the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Amendment provided it is understood and agreed that this parenthetical
phrase shall not, and shall not be interpreted to, limit the right of the
Administrative Agent or any Lender to receive the allocable costs of internal
legal services with respect to agreements or matters other than the preparation,
negotiation, execution and delivery of this Amendment) and (ii) pay all fees of
Capstone (as defined in the Modification and Limited Waiver) required to be paid
in the Modification and Limited Waiver. The Borrowers and other Credit Parties
hereby agree that all findings and conclusions and other work product of
Capstone shall be protected by the attorney-client privilege and shall not be
subject to review or discovery by the Borrowers or any other Credit Party.
8.05 COUNTERPARTS. This Amendment may be executed and delivered by
facsimile, portable document format (".pdf"), Tagged Image File Format (".TIFF")
or other electronic means of delivery and in one or more counterparts, each of
which when so executed shall be deemed to be an original, but all of which when
taken together shall constitute one and the same instrument.
-27-
8.06 PRELIMINARY STATEMENTS. The Preliminary Statements set forth in this
Amendment are accurate and shall form a substantive part of the agreement of the
parties hereto.
8.07 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
8.08 RELATIONSHIP. The relationship between the Borrowers and other Credit
Parties on the one hand and the Lenders and the Administrative Agent on the
other hand shall be solely that of borrowers and guarantors, on the one hand,
and lender on the other. Neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Borrower or other Credit Party
arising out of or in connection with this Amendment or any of the other Loan
Documents, and the relationship between the Borrowers and other Credit Parties,
on the one hand, and the Administrative Agent and the Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor.
The Borrowers and other Credit Parties acknowledge that they have been advised
by counsel in the negotiation, execution and delivery of this Amendment and the
other Loan Documents. No joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
or by the other Loan Documents among the Lenders or among the Borrowers (and
other Credit Parties) and the Lenders.
8.09 TIME IS OF THE ESSENCE. The parties hereto (i) have agreed
specifically with regard to the times for performance set forth herein and in
the other Loan Documents and (ii) acknowledge and agree such times are material
to this Amendment and the other Loan Documents. Therefore, time is of the
essence with respect to this Agreement and the other Loan Documents.
8.10 JURY TRIAL; INDEMNIFICATION. Without limiting the generality of
Sections 15.17, 15.18, 15.19 and 15.20 of the Credit Agreement, it is hereby
agreed that the terms and provisions of such Sections shall apply to this
Amendment and any transaction or matter contemplated by, in connection with or
arising out of this Amendment.
8.11 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
PURSUANT HERETO (EXCEPT AS EXPRESSLY SET FORTH IN ANY SUCH AGREEMENT) SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
8.12 FINAL AGREEMENT. THE CREDIT AGREEMENT (AS AMENDED HEREBY) AND THE
OTHER LOAN DOCUMENTS REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND THEREOF ON THE DATE THIS AMENDMENT IS EXECUTED.
THE CREDIT AGREEMENT (AS AMENDED HEREBY) AND THE OTHER LOAN DOCUMENTS MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, THE BORROWERS AND
THE OTHER CREDIT
-28-
PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER ANY LENDER NOR THE ADMINISTRATIVE
AGENT HAS MADE ANY PROMISES OR ASSURANCES WITH RESPECT TO, AND THE BORROWERS AND
OTHER CREDIT PARTIES ACKNOWLEDGE AND AGREE THAT THERE IS NO ORAL AGREEMENT WITH
RESPECT TO, ANY FUTURE AMENDMENT, WAIVER OR OTHER MODIFICATION OF THE LOAN
DOCUMENTS OR ANY RESTRUCTURING OR WORKOUT THEREOF OR WITH RESPECT THERETO. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE BORROWERS
AND THE REQUIRED LENDERS AND (WITH RESPECT TO MATTERS AFFECTING THE
ADMINISTRATIVE AGENT) THE ADMINISTRATIVE AGENT AND (WITH RESPECT TO MATTERS
AFFECTING THE ISSUING LENDER) THE ISSUING LENDER.
8.13 RELEASE. EACH OF THE BORROWERS AND THE OTHER CREDIT PARTIES HEREBY
ACKNOWLEDGES THAT, AS OF THE DATE HEREOF, IT HAS NO DEFENSE, COUNTERCLAIM,
OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT
CAN BE ASSERTED (A) TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS APPLICABLE
LIABILITIES UNDER ANY LOAN DOCUMENT, ANY BANK PRODUCT AGREEMENT OR ANY HEDGING
AGREEMENT WITH ANY LENDER, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE
AFFILIATES AND/OR (B) TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR
NATURE FROM THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS (OR ANY OF THEIR
RESPECTIVE AFFILIATES). EACH OF THE BORROWERS AND THE OTHER CREDIT PARTIES
HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE
ADMINISTRATIVE AGENT AND LENDERS, THEIR PREDECESSORS, AGENTS, AFFILIATES,
EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS,
CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART
ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER OR OTHER
CREDIT PARTY MAY NOW OR HEREAFTER HAVE AGAINST THE ADMINISTRATIVE AGENT,
LENDERS, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY,
AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING OUT OF OR OTHERWISE
IN ANY WAY RELATING IN ANY WAY TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT,
HEDGING AGREEMENT, BANK PRODUCT AGREEMENT, THE OBLIGATIONS, ANY OTHER
TRANSACTION CONTEMPLATED BY ANY OF THE FOREGOING DOCUMENTS, OR ANY ACTION OR
OMISSION OF THE ADMINISTRATIVE AGENT OR ANY LENDER UNDER OR OTHERWISE IN 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
-29-
BY SUCH PARTY, MUST OR MIGHT HAVE MATERIALLY AFFECTED SUCH PARTY'S SETTLEMENT
WITH THE RELEASED PARTIES. NOTHING CONTAINED IN THIS PARAGRAPH SHALL, OR SHALL
BE INTERPRETED TO, IMPAIR ANY RIGHTS OF ANY BORROWER (OR OTHER CREDIT PARTY)
WITH RESPECT TO ANY DEPOSIT OR OTHER BANK ACCOUNTS OF SUCH BORROWER OR OTHER
CREDIT PARTY (OR ANY OF THEIR RESPECTIVE SUBSIDIARIES) WITH ANY LENDER OR THE
ADMINISTRATIVE AGENT.
[Remainder of Page Intentionally Left Blank]
-30-
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
as of the date first written above.
XXXXXXX TECHNOLOGY COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and
Chief Executive Officer
XXXXXXX GERMANY HOLDING GMBH
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
XXXXXXX GERMANY GMBH
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
XXXXXXX OXY-DRY GMBH
(formerly known as OXY-DRY MASCHINEN
GMBH)
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
XXXXXXX GRAPHIC SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
OXY-DRY FOOD BLENDS, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
OXY-DRY U.K., INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX SOUTHEAST ASIA CORPORATION
(formerly known as Oxy-Dry Asia Pacific,
Inc.)
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX AMERICAS CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
XXXXXXX ASIA PACIFIC CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
MTC TRADING COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
OXY-DRY CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXXX EUROPE CONSOLIDATED INC.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
XXXXXXX ROCKFORD CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and CEO
XXXXXXX EUROPE CONSOLIDATED B.V.
By: Xxxxxxx Graphic Equipment BV
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name(s): Xxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name(s): Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXXXX GRAPHIC EQUIPMENT B.V.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name(s): Xxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name(s): Xxxxxxx Xxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
XXXXXXX BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ X.X. Xxxxxxx
------------------------------------
Name: X.X. Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO WAIVER AND AMENDMENT NO 5. TO CREDIT AGREEMENT]
RBS CITIZENS N.A., as Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
