Exhibit 10.6
EXECUTION
VERSION
CONSENT, REAFFIRMATION AND FIRST
AMENDMENT
TO INTERCREDITOR
AGREEMENT
THIS CONSENT, REAFFIRMATION AND
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT (this “ Reaffirmation and Amendment
”) is entered into as of August 19, 2008 by and among
FIFTH THIRD BANK , a Michigan banking corporation (“
Fifth Third ”), in its capacity as collateral agent
(in such capacity, together with its successors and assigns from
time to time, the “ First Lien Collateral Agent
”) for itself and all other “First Lien
Claimholders” under and as defined in the Intercreditor
Agreement referred to below, THE BANK OF NEW YORK MELLON (f/k/a
The Bank of New York) (“ BNY ”), in its
capacity as collateral agent (in such capacity, together with its
successors and assigns from time to time, the “ Second
Lien Collateral Agent ”) for itself and all other
“Second Lien Claimholders” under and as defined in the
Intercreditor Agreement referred to below, X-RITE,
INCORPORATED, a Michigan corporation (the “
Company ”), and the undersigned subsidiaries of the
Company (together with certain other Subsidiaries of the Company
that become parties to the Intercreditor Agreement from time to
time, the “ Guarantor Subsidiaries ”, and the
Guarantor Subsidiaries, together with the Company, sometimes
hereinafter referred to collectively as the “ Grantors
” and individually as a “ Grantor
”).
R E C I T A L S
A. The Grantors, the First Lien
Collateral Agent, Fifth Third, as administrative agent (the “
First Lien Administrative Agent ”), and the First Lien
Lenders are parties to a certain First Lien Credit and Guaranty
Agreement dated as of October 24, 2007, as amended pursuant to
that certain Forbearance Agreement and Consent, Waiver and
Amendment No. 1 to First Lien Credit Agreement of even date
herewith (the “ First Lien Amendment Agreement
”; such First Lien Credit and Guaranty Agreement, as amended
pursuant to the First Lien Amendment Agreement, and as the same may
be further amended, restated, amended and restated, supplemented or
otherwise modified and in effect from time to time in accordance
with the Intercreditor Agreement, the “ First Lien Credit
Agreement ”).
B. The Grantors, the Second Lien
Collateral Agent, BNY, as administrative agent (the “
Second Lien Administrative Agent ”), and the Second
Lien Lenders are parties to a certain Second Lien Credit and
Guaranty Agreement dated as of October 24, 2007, as amended
pursuant to that certain Forbearance Agreement and Consent, Waiver
and Amendment No. 1 to Second Lien Credit Agreement of even
date herewith (the “ Second Lien Amendment Agreement
”; such Second Lien Credit and Guaranty Agreement, as amended
pursuant to the Second Lien Amendment Agreement, and as the same
may be further amended, restated, amended and restated,
supplemented or otherwise modified and in effect from time to time
in accordance with the Intercreditor Agreement, the “
Second Lien Credit Agreement ”).
C. The Grantors, the First Lien
Collateral Agent and the Second Lien Collateral Agent are parties
to that certain Intercreditor Agreement dated as of
October 24, 2007 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, including,
without limitation, pursuant to this Reaffirmation and Amendment,
the “ Intercreditor Agreement ”).
D. Concurrently herewith
(i) the Grantors, the First Lien Collateral Agent, the First
Lien Administrative Agent and the First Lien Lenders are entering
into the First Lien Amendment Agreement, and (ii) the
Grantors, the Second Lien Collateral Agent, the Second Lien
Administrative Agent and the Second Lien Lenders are entering into
the Second Lien Amendment Agreement.
NOW, THEREFORE, in order to induce
(i) the First Lien Collateral Agent and the First Lien Lenders
to enter into and deliver the First Lien Amendment Agreement and to
perform their respective obligations thereunder, and (ii) the
Second Lien Collateral Agent and the Second Lien Lenders to enter
into and deliver the Second Lien Amendment Agreement, and to
perform their respective obligations thereunder, and in each case
for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto
agree as follows:
1. Definitions . Except as
otherwise defined herein, all capitalized terms used but not
elsewhere defined herein, including in the Recitals hereto, shall
have the respective meanings ascribed to such terms in the
Intercreditor Agreement.
2. Consents and
Reaffirmations .
2.1 Consent and Reaffirmation by
First Lien Collateral Agent . The First Lien Collateral Agent,
for and on behalf of each of the First Lien Claimholders, hereby
(a) acknowledges that it has received a copy of the Second
Lien Amendment Agreement and hereby consents to the execution and
delivery thereof, and performance of its obligations thereunder by,
each of the parties thereto; and (b) acknowledges and agrees
that, except as otherwise expressly set forth herein, such
execution, delivery and performance shall not affect, diminish,
waive, modify or otherwise impair in any way whatsoever any rights
or remedies of the Second Lien Collateral Agent or any of the other
Second Lien Claimholders under or pursuant to the Intercreditor
Agreement or any obligations or liabilities of the First Lien
Collateral Agent and the other First Lien Claimholders under or
pursuant to the Intercreditor Agreement, all of which obligations
and liabilities are hereby ratified, confirmed and reaffirmed in
all respects.
2.2 Consent and Reaffirmation by
Second Lien Collateral Agent . The Second Lien Collateral
Agent, for and on behalf of each of the Second Lien Claimholders,
hereby (a) acknowledges that it has received a copy of the
First Lien Amendment Agreement and hereby consents to the execution
and delivery thereof, and performance of its obligations thereunder
by, each of the parties thereto; and (b) acknowledges and
agrees that, except as otherwise expressly set forth herein, such
execution, delivery and performance shall not affect, diminish,
waive, modify or otherwise impair in any way whatsoever any rights
or remedies of the First Lien Collateral Agent or any of the other
First Lien Claimholders under or pursuant to the Intercreditor
Agreement or any obligations or liabilities of the Second Lien
Collateral Agent and the other Second Lien Claimholders under or
pursuant to the Intercreditor Agreement, including the continued
agreement of lien subordination to the extent set forth therein,
all of which obligations and liabilities are hereby ratified,
confirmed and reaffirmed in all respects.
2
2.3 Reaffirmation by Grantors
.
(a) Each of the Grantors hereby
acknowledges and agrees that neither the execution and delivery by
the First Lien Collateral Agent or any other First Lien Claimholder
of, nor performance by the First Lien Collateral Agent or any other
First Lien Claimholder of any of such Person’s obligations
under, the First Lien Amendment Agreement, shall affect,
dim
