POST CLOSING AGREEMENT
EXHIBIT 10.7
POST CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (“Agreement”) is made as of December , 2011, by and between HARDINGE INC., a New York corporation having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Borrower”), HARDINGE TECHNOLOGY SYSTEMS, INC., a New York corporation having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Guarantor”), and M&T BANK , a New York banking corporation with banking offices at One M&T Plaza, Buffalo, New York 14240, Attention: Office of General Counsel (“Lender”).
Pursuant to the terms of a certain commitment letter dated October 31, 2011 (“Commitment Letter”), Lender agreed to make a loan to Borrower in the amount of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) (the “Loan”). The Loan will be evidenced by a Replacement Daily Adjusting LIBOR Revolving Line Note in the total principal amount of $25,000,000.00 by Borrower to the order of Lender (the “Note”). The Note is secured by, among other things, a Credit Agreement, a Guaranty, a Negative Pledge Agreement, a General Security Agreement and a Restated Pledge of Securities Agreement, all of even date herewith (collectively with the Note, the “Loan Documents”).
A. Borrower acknowledges that as part of the consideration for the Loan, Lender has received a pledge of sixty-five percent (65%) of the stock of Hardinge Holdings GmbH, a foreign subsidiary of Borrower (the “Holding Co.”) (the “Pledge”). It is the understanding of the parties hereto that other than Hardinge Taiwan Precision Machinery Limited and Canadian Hardinge Machine Tool Ltd., both of which are 100% owned by Borrower, all of the stock in Borrower’s foreign subsidiaries is currently directly or indirectly held by Holding Co.
B. Borrower and Guarantor acknowledge that Lender and its counsel are requiring certain items that have not been provided as of the closing date.
C. Borrower acknowledges and agrees that Lender will not make the Loan in the absence of this Agreement.
NOW, THEREFORE, for and in consideration of Lender making the Loan to Borrower and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. Borrower agrees to obtain an opinion letter from New York counsel regarding the authority and due execution of the Pledge by Borrower (the “New York Opinion”). Borrower also agrees to obtain an opinion letter from its Swiss counsel opining as to the authority and enforceability of the Pledge by Holding Co. relative to the foreign stock or assets of Holding Co. (the “Swiss Opinion”). Both the New York Opinion and the Swiss Opinion are to be substantially the same as the prior opinions on the same subject delivered to Lender in connection with the $10,000,000 Revolving Loan dated December 10, 2009.
3. Borrower shall provide the items in Paragraph 2 above by December 30, 2011.
4. Event of Default. Borrower’s and Guarantor’s failure to perform their obligations by the dates stated herein shall be an Event of Default under the Loan Documents.
IN WITNESS WHEREOF, the parties below have entered into this Agreement as of the day and year first above written.
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BORROWER: | ||
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
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Name: |
▇▇▇▇▇▇ ▇. ▇▇▇▇ |
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Title: |
Chief Financial Officer |
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GUARANTOR: | ||
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HARDINGE TECHNOLOGY SYSTEMS, INC. | ||
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: |
President |
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LENDER: | ||
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M&T BANK | ||
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: |
Vice President |