Contract
Exhibit 4.1
EXECUTION COPY
AMENDMENT NO. 13 AND AGREEMENT (this “Amendment”) dated as of April 5, 2006, to the Second Lien Credit Agreement dated as of July 29, 2004, among THERMADYNE INDUSTRIES, INC., a Delaware corporation (“Industries”), THERMAL DYNAMICS CORPORATION, a Delaware corporation (“Dynamics”), TWECO PRODUCTS, INC., a Delaware corporation (“Tweco”), XXXXXX EQUIPMENT COMPANY, a Delaware corporation (“Xxxxxx”), C & G SYSTEMS, INC., an Illinois corporation (“C & G”), STOODY COMPANY, a Delaware corporation (“Stoody”), THERMAL ARC, INC., a Delaware corporation (“Thermal Arc”), PROTIP CORPORATION, a Missouri corporation (“ProTip”), THERMADYNE INTERNATIONAL CORP., a Delaware corporation (“International” and, together with ProTip, Thermal Arc, Stoody, C & G, Xxxxxx, Tweco, Dynamics and Industries, the “Borrowers”), the Guarantors party thereto, the Lenders from time to time party thereto and CREDIT SUISSE, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”) (as amended by Amendment No. 1 and Agreement effective as of September 30, 2004, by Amendment No. 2 and Joinder Agreement dated as of November 22, 2004, by Amendment No. 3 and Consent dated as of January 3, 2005, by Amendment No. 4 dated as of March 16, 2005, by Amendment No. 5 dated as of March 30, 2005, by Amendment No. 6 dated as of March 31, 2005, by Amendment No. 7 dated as of July 1, 2005, by Amendment No. 8 dated as of August 8, 2005, by Amendment No. 9 dated as of October 7, 2005, by Amendment No. 10 and Agreement dated as of November 7, 2005, by Amendment No. 11 and Agreement dated as of December 29, 2005, by Amendment No. 12, Waiver and Consent dated as of March 9, 2006, and as further amended, supplemented or modified, the “Credit Agreement”).
A. Pursuant to the Credit Agreement, the Lenders have extended credit to the Borrowers.
B. The Borrowers and the other Credit Parties have requested that the Administrative Agent and the Lenders (i) amend the Credit Agreement to permit the sale of the Stock of Tec. Mo. Srl and Tec. Mo. Control Srl for an aggregate amount of not less than $8,300,000 of cash and assumption of debt (the “TecMo Sale”) and (ii) make certain other changes to the Credit Agreement, as set forth herein.
C. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. (a) Section 5.03 (Financial Statements, Reports, etc.) of the Credit Agreement is hereby amended by inserting the following immediately prior to the semicolon at the end of clause (a) thereof:
“; provided, however, that the monthly financial statements required to be delivered pursuant to this Section 5.03 for the fiscal months ended January 31, 2006, February 28, 2006, and March 31, 2006, shall not be required to be delivered until May 15, 2006”
(a) Section 6.08 (Sale of Stock and Assets) of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (g) thereof and (ii) replacing clause (h) thereof with:
“(h) the sale of the Stock of (i) Genset SpA for an aggregate amount of not less than $10,000,000 in cash and assumption of debt (the “Genset Sale”), (ii) Soldaduras Soltec Ltda. for an aggregate amount of not less than $7,500,000 in cash and assumption of debt (the “Soltec Sale”) and (iii) Tec. Mo. Srl and Tec. Mo. Control Srl for an aggregate amount of not less than $8,300,000 of cash and assumption of debt (the “TecMo Sale”), so long as the net proceeds of each of the Genset Sale, the Soltec Sale and the TecMo Sale shall be distributed to a Borrower; and
(i) the liquidation of Duxtech Pty Ltd. (CAN 007 211 190) in a manner reasonably satisfactory to the Administrative Agent.”
SECTION 2. Use of Proceeds and Permanent Reduction of Revolving Loan Commitments. (a) The Borrowers hereby agree that the cash proceeds of the TecMo Sale, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrowers in connection therewith (in each case, paid to non-Affiliates), (B) transfer taxes, and (C) an appropriate reserve for income taxes in accordance with GAAP in connection therewith, shall be utilized solely to prepay a portion of the principal balance of the Revolving Credit Advances (as defined in the First Lien Credit Agreement).
(a) Notwithstanding anything to the contrary set forth in the Credit Agreement, the Borrowers hereby agree that a breach of any of the agreement in paragraph (a) above shall be deemed to constitute an Event of Default.
SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Credit Parties represent and warrant to each of the Lenders, the Administrative Agent and the Collateral Agent, that, after giving effect to this Amendment, (a) the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, and (b) no Default or Event of Default has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective as of the date set forth above on the date that the Administrative Agent (or its counsel) shall have received:
(a) counterparts of this Amendment that, when taken together, bear the signatures of the Credit Parties and the Required Lenders; and
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(b) a copy of a fully executed and delivered amendment, in form and substance reasonably satisfactory to the Administrative Agent, to the First Lien Credit Agreement.
SECTION 5. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Credit Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. After the date hereof, any reference to the Credit Agreement shall mean the Credit Agreement, as modified hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 6. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 9. Expenses. The Borrowers agree to reimburse the Administrative Agent for all out-of-pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent.
SECTION 10. Reaffirmation. Each of the Guarantors hereby acknowledges receipt and notice of, and consents to the terms of, this Amendment, and affirms and confirms its guarantee of the Obligations and, if applicable, the pledge of and/or grant of a security interest in its assets as Collateral to secure the Obligations, all as provided in the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant of security interest continue in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement, as amended hereby, and the other Loan Documents.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed and delivered by its duly authorized officer as of the date first set forth above.
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THERMADYNE INDUSTRIES, INC., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMAL DYNAMICS |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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TWECO PRODUCTS, INC., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & X.X. |
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XXXXXX EQUIPMENT COMPANY, |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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C & G SYSTEMS, INC., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & X.X. |
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XXXXXX COMPANY, |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMAL ARC, INC., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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PROTIP CORPORATION, |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMADYNE INTERNATIONAL |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMADYNE HOLDINGS |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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MECO HOLDING COMPANY, |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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C&G SYSTEMS HOLDING, INC., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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CIGWELD PTY LTD., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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DUXTECH PTY LTD., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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QUETACK PTY, LTD., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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QUETALA PTY, LTD., |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMADYNE AUSTRALIA PTY |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMADYNE INDUSTRIES |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: V.P. SECTY & G.C. |
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THERMADYNE WELDING |
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by |
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/s/ Xxxxxxxx X. Xxxxxxxx |
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Name: XXXXXXXX X. XXXXXXXX |
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Title: X.X. XXXXX & X.X. |
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XXXXXX XXXXXX, XXXXXX |
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by |
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/s/ Xxxxxxx Xx |
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Name: XXXXXXX XX |
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Title: DIRECTOR |
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by |
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/s/ Xxxxx Xxxxxxxx |
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Name: XXXXX XXXXXXXX |
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Title: ASSOCIATE |
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GSO SPECIAL SITUATIONS FUND |
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BY GSO Capital Partners LP |
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by |
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/s/ Xxxxxx Fan |
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Name: XXXXXX FAN |
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Title: Managing Director |
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NORTHWOODS CAPITAL IV, |
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By: Xxxxxx,
Xxxxxx & Co., L.P., as |
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By |
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/s/ Xxxxx Xxxxxx |
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Name: XXXXX XXXXXX |
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Title: MANAGING DIRECTOR |
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NORTHWOODS CAPITAL V, |
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By: Xxxxxx, Xxxxxx & Co., L.P., as |
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by |
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/s/ Xxxxx Xxxxxx |
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Name: XXXXX XXXXXX |
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Title: MANAGING DIRECTOR |
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NORTHWOODS CAPITAL VI, |
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By: Xxxxxx, Xxxxxx & Co., L.P., as |
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by |
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/s/ Xxxxx Xxxxxx |
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Name: XXXXX XXXXXX |
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Title: MANAGING DIRECTOR |
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