Exhibit 10.72
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT
among
XXXXXXX EUROPE CONSOLIDATED B.V.,
as Borrower,
XXXXXXX TECHNOLOGY COMPANY, INC.,
as Parent, Guarantor and Borrower Representative,
XXXXXXX AMERICAS CORPORATION,
XXXXXXX EUROPE CONSOLIDATED INC.,
XXXXXXX ASIA PACIFIC CORPORATION,
XXXXXXX GRAPHIC SYSTEMS INC.,
XXXXXXX GERMANY GMBH,
XXXXXXX U.K. HOLDING LIMITED,
XXXXXXX (U.K.) LTD.,
ACROTEC UK LTD.,
XXXXXXX GLOBALTEC LTD.,
XXXXXXX SWEDEN HOLDING AB,
XXXXXXX IVT AB,
XXXXXXX JIMEK AB,
JAPAN-XXXXXXX LTD.,
as Guarantors,
and
MAPLE BANK GMBH,
as Lender
Dated as of July 1, 2005
--------------------------------
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SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of July 1, 2005
(this "Amendment"), of the CREDIT AGREEMENT, dated as of July 25, 2003, as
amended by the First Amendment dated as of September 9, 2004 (as amended, the
"Credit Agreement"), among XXXXXXX EUROPE CONSOLIDATED B.V., a private company
with limited liability incorporated under the laws of The Netherlands (the
"Borrower"), XXXXXXX TECHNOLOGY COMPANY, INC., a Delaware corporation, as
Parent, Guarantor and Borrower Representative (the "Parent"), XXXXXXX AMERICAS
CORPORATION, a Delaware corporation ("BAC"), XXXXXXX EUROPE CONSOLIDATED INC., a
Delaware corporation ("BEC"), XXXXXXX ASIA PACIFIC CORPORATION, a Delaware
corporation ("BAPC" together with BAC and BEC, each a "Guarantor Parent"),
XXXXXXX GRAPHIC SYSTEMS INC., a Delaware corporation ("Xxxxxxx Graphic"),
XXXXXXX GERMANY GMBH, a German company ("Xxxxxxx Germany"), XXXXXXX U.K. HOLDING
LIMITED, a company incorporated in England and Wales ("Xxxxxxx U.K."), XXXXXXX
(UK) LTD., a company incorporated in England and Wales ("Xxxxxxx (UK)"), ACROTEC
UK LTD., a company incorporated in England and Wales ("Acrotec UK"), XXXXXXX
GLOBALTEC LTD., a company incorporated in England and Wales ("Xxxxxxx
Globaltec"), XXXXXXX SWEDEN HOLDING AB, a limited liability company incorporated
in Sweden under registration number 556263-4724 ("Xxxxxxx Sweden"), XXXXXXX IVT
AB, a limited liability company incorporated in Sweden under registration number
556225-4721 ("Xxxxxxx IVT"), XXXXXXX JIMEK AB, a limited liability company
incorporated in Sweden under registration number 556528-6860 ("Xxxxxxx Jimek"),
JAPAN-XXXXXXX LTD., a Japanese company ("Xxxxxxx Japan" together with Xxxxxxx
Graphic, Xxxxxxx Jimek, Xxxxxxx IVT, Xxxxxxx Sweden, Xxxxxxx Globaltec, Acrotec
UK, Xxxxxxx (UK), Xxxxxxx U.K. and Xxxxxxx Germany, each a "Guarantor
Subsidiary, and collectively, the "Guarantor Subsidiaries") and MAPLE BANK GmbH,
a German bank, as Lender. Unless otherwise defined herein, all capitalized terms
used herein and defined in Section 11 of the Credit Agreement are used herein as
so defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Parent, the Guarantor Parents, the Guarantor
Subsidiaries and the Lender have entered into the Credit Agreement; and
WHEREAS, the parties desire to modify the Credit Agreement upon the
terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
SECTION 1. DEFINITIONS.
All terms used in this Amendment and not otherwise defined shall have
the meaning ascribed to such terms in the Credit Agreement.
SECTION 2. AMENDMENTS.
Section 2.1. Section 1.06(b) of the Credit Agreement is amended by
deleting the proviso at the end in its entirety.
Section 2.2. Section 3.01(a) of the Credit Agreement is amended by
deleting clause (ii) of the first sentence thereof and substituting therefor:
"(ii) a renewal fee in the amount of $25,000 payable on the
last Business Day of January, April, July and October in each
year, commencing with October 2005 (unless the Commitment is
terminated earlier pursuant to Section 3.02 or 3.03)."
Section 2.3. Section 8.01(m) of the Credit Agreement is amended by
deleting therefrom the words "Within 15 Business Days after the end of each
calendar month" and replacing them with the words "Within 30 Business Days after
the end of each calendar month" in lieu thereof.
Section 2.4. Section 11 of the Credit Agreement is amended by deleting
the defined term "Applicable Margin" and replacing it with the following:
"Applicable Margin" shall mean a percentage per annum equal to
(i) 1.25%, with respect to Base Rate Loans, (ii) 3.375%, with respect
to Eurodollar Loans, and (iii) 3.775%, with respect to Euro Denominated
Loans.
SECTION 3. WAIVER
The Lender acknowledges that the Custody Agreement was terminated as of
August 12, 2005, and irrevocably waives any Defaults or Events of Default that
may have arisen as a result of such termination.
SECTION 4. REPRESENTATION AND WARRANTIES OF THE CREDIT PARTIES
Each Credit Party represents to the Lender that each of the
representations and warranties made in Section 7 of the Credit Agreement is true
and correct as of the date hereof, after giving effect to this Amendment, except
to the extent that such representation is stated to relate to a specified
earlier date in which case such representation and warranty shall be true and
correct as of such earlier date.
SECTION 5. CONDITIONS
This Amendment shall be deemed effective as of July 1, 2005 (the
"Effective Date") when each of the following has been fulfilled to the
satisfaction of the Lender:
(a) Each of the parties hereto shall have executed and delivered a
counterpart of this Amendment.
(b) There shall exist no Default or Event of Default under the
Credit Agreement and all representations and warranties contained therein shall
be true and correct as of the Effective Date with the same effect as if made on
such date, except to the extent that such representation is stated to relate to
a specified earlier date in which case such representation and warranty shall be
true and correct as of such earlier date.
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(c) All proceedings and all documents, instruments and other legal
matters in connection with this Amendment shall be satisfactory in form and
substance to the Lender and its counsel and the Lender shall have received such
other documents, certificates, instruments and opinions relating to the
transactions contemplated hereby as it shall reasonably request, in each case,
in form and substance satisfactory to it.
(d) All fees and expenses of the Lender (including fees and
expenses of its counsel) incurred in connection with this Amendment shall have
been paid.
SECTION 6. MISCELLANEOUS
Section 6.1. Each of the Credit Documents modified hereby is expressly
continued in full force and effect. Except as expressly modified herein, all
terms, provisions and conditions will remain unchanged and shall remain in full
force and effect for the full term thereof, and this Amendment shall be
interpreted with the Credit Agreement, as modified hereby, as one and the same
instrument. This Amendment shall also constitute a Credit Document as defined in
the Credit Agreement.
Section 6.2. Each of the Credit Parties confirms for purposes of each
of the Security Documents to which it is a party that (i) references in such
documents to the Credit Agreement are to the Credit Agreement as amended by this
Amendment and (ii) the defined terms "Obligations" and "Secured Obligations" in
the Credit Documents refer to the Obligations under the Credit Agreement as
amended by this Amendment.
Section 6.3. The terms and provisions of this Amendment, and the
respective rights and obligations of each party hereunder, shall be binding upon
and inure to the benefit of their respective successors, legal representatives
and assigns.
Section 6.4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PROVISIONS THEREOF.
Section 6.5. Any provision of this Amendment that shall be prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and each party hereto
shall remain liable to perform its obligations hereunder except to the extent of
such enforceability. To the extent permitted by law, each party hereto hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section 6.6. This Amendment is limited precisely as written and shall
not be deemed to be an amendment, consent, waiver or modification of any other
term or condition of the Credit Agreement or any of the instruments or
agreements referred to therein, or prejudice any right or rights which the
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Lender may now have or may have in the future under or in connection with the
Credit Agreement or any of the instruments or agreements referred to therein.
Except as expressly modified hereby, the terms and provisions of the Credit
Agreement shall continue in full force and effect. Whenever the Credit Agreement
is referred to in the Credit Agreement or any of the instruments, agreements or
other documents or papers executed and delivered in connection therewith, it
shall be deemed to be a reference to the Credit Agreement as modified by this
Amendment.
Section 6.7. This Amendment may be executed by the parties hereto in
separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
Address:
--------
2 Trap Falls Road XXXXXXX EUROPE CONSOLIDATED B.V.,
Suite 402 as Borrower
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By__/s/Xxxxxx X. Nathe____________
Fax: (000) 000-0000 Name: Xxxxxx X. Xxxxx
Title: Managing Director
By__/s/Xxxxx X. Tharani___________
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
2 Trap Falls Road XXXXXXX TECHNOLOGY COMPANY, INC.,
Suite 402 as Parent, Guarantor and Parent
Xxxxxxx, XX 00000 Representative
Attn:President
Tel:(000) 000-0000 By__/s/Xxxxx X. Tharani___________
Fax:(000) 000-0000 Name: Xxxxx X. Xxxxxxx
Title: Vice President, CFO &
Treasurer
0 Xxxx Xxxxx Xxxx XXXXXXX XXXXXXXX CORPORATION,
Suite 402 as Guarantor
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By__/s/Xxxxx X. Tharani___________
Fax: (000) 000-0000 Name: Xxxxx X. Xxxxxxx
Title: Vice President
2 Trap Falls Road XXXXXXX EUROPE CONSOLIDATED INC.,
Suite 402 as Guarantor
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By__/s/Xxxxx X. Tharani___________
Fax: (000) 000-0000 Name: Xxxxx X. Xxxxxxx
Title: Vice President
0 Xxxx Xxxxx Xxxx XXXXXXX ASIA PACIFIC CORPORATION,
Suite 402 as Guarantor
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By__/s/Xxxxx X. Tharani___________
Fax: (000) 000-0000 Name: Xxxxx X. Xxxxxxx
Title: Vice President
2 Trap Falls Road XXXXXXX GRAPHIC SYSTEM INC.,
Suite 402 as Guarantor
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By__/s/Xxxxxx X. Nathe____________
Fax: (000) 000-0000 Name: Xxxxxx X. Xxxxx
Title: President
Xxxxxxxxxx Xxxxxxx 000 XXXXXXX XXXXXXX GMBH, as Guarantor
D-86165 Augsburg
Germany
Attn: Managing Director By__/s/Xxxx X. Puehringer_________
Tel: x00-000-000-000 Name: Xxxx X. Xxxxxxxxxx
Fax: x00-000-000-0000 Title: Geschaftsfuhrer
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxx 00 Xxxx Xxxxxxxx Xxxxxx EXECUTED as a DEED by
Boscombe Road XXXXXXX U.K. HOLDING LIMITED,
Xxxxxxxxx Xxxxxxxxxxxx XX0 0XX as Guarantor
England
Attn: Managing Director
Tel: x00-0000-000000 By_____________________________
Fax: x00-0000-000000 as attorney-in-fact under a
power of attorney
dated ____
With a copy to:
Xxxxxxx Technology Company, Inc. By__/s/Xxxxx X. Tharani___________
0 Xxxx Xxxxx Xxxx
Xxxxx 000 Name: Xxxxx X. Xxxxxxx
Xxxxxxx, XX 00000 Title: Director
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxx 00 Xxxx Xxxxxxxx Xxxxxx EXECUTED as a DEED by
Boscombe Road XXXXXXX (U.K.) LTD., as Xxxxxxxxx
Xxxxxxxxx Xxxxxxxxxxxx XX0 0XX
Xxxxxxx
Attn: Managing Director By_____________________________
Tel: x00-0000-000000 as attorney-in-fact under a
Fax: x00-0000-000000 power of attorney
dated ____
With a copy to:
Xxxxxxx Technology Company, Inc. By__/s/Xxxxx X. Tharani___________
0 Xxxx Xxxxx Xxxx Name: Xxxxx X. Xxxxxxx
Suite 402 Title: Director
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxxxx Xxxxx Xxxxxx EXECUTED as a DEED by
Xxxxx, Xxxxxx XX00 0XX ACROTEC UK LTD., as Guarantor
England
Attn: Managing Director
Tel: x00-0000-000000 By_______________________________
Fax: x00-0000-000000 as attorney-in-fact under a
power of attorney
dated ____
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx By__/s/Xxxxx X. Tharani__________
Suite 402 Name: Xxxxx X. Xxxxxxx
Xxxxxxx, XX 00000 Title: Director
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxxxx Xxxxx Xxxxxx EXECUTED as a DEED by
Xxxxx, Xxxxxx XX00 0XX XXXXXXX GLOBALTEC LTD., as
England Guarantor
Attn: Managing Director
Tel: x00-0000-000000 By_____________________________
Fax: x00-0000-000000 as attorney-in-fact under a power
of attorney
dated ____
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx By__/s/Xxxx Leek__________________
Suite 402 Name: Xxxx Xxxx
Xxxxxxx, XX 00000 Title: Managing Director
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxxxxxxx 00 XXXXXXX XXXXXX HOLDING AB, as
Xxx 0 Xxxxxxxxx
000 00 Xxxxxx
Xxxxxx By__/s/Xxxxxx X. Nathe____________
Attn: Managing Director Name: Xxxxxx X. Xxxxx
Tel: x00-000-00000 Title: Director
Fax: x00-000-00000
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Stoerydsvagen 00 XXXXXXX XXX XX, as Xxxxxxxxx
Xxx 0
000 00 Xxxxxx
Xxxxxx By__/s/Xxxxxx X. Nathe____________
Attn: Managing Director Name: Xxxxxx X. Xxxxx
Tel: x00-000-00000 Title: Director
Fax: x00-000-00000
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxxx 00 XXXXXXX XXXXX XX, as Guarantor
X-000 00 Xxxxx
Xxxxxx
Attn: Managing Director By__/s/Xxxxxx X. Nathe____________
Tel: x00-00-00-00-00 Name: Xxxxxx X. Xxxxx
Fax: x00-00-00-00-00 Title: Director
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
4-34 Toyo 2-chome Xxxxxx-xx XXXXX-XXXXXXX XXX., xx Xxxxxxxxx
Xxxxx 000-0000
Xxxxx
Attn: Managing Director By__/s/Xxxxxx X. Nathe____________
Tel: x00-0-0000-0000 Name: Xxxxxx X. Xxxxx
Fax: x00-0-0000-0000 Title:Representative Director
With a copy to:
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
2 Trap Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
MAPLE BANK GmbH, as Lender
By_/s/Xxxxxxx Bernhard____________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
By_/s/Xxxxxx Lenauer______________
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
