EXHIBIT 99.1
CONFORMED COPY
AMENDED AND RESTATED FINANCING AGREEMENT
DATED AS OF MARCH 31, 2004
BY AND AMONG
MILACRON INC.
AND
CERTAIN SUBSIDIARIES OF MILACRON INC. LISTED AS A BORROWER
ON THE SIGNATURE PAGES HERETO,
AS BORROWERS,
CERTAIN SUBSIDIARIES OF MILACRON INC. LISTED AS A GUARANTOR
ON THE SIGNATURE PAGES HERETO,
AS GUARANTORS,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
AS LENDERS,
AND
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH,
AS ADMINISTRATIVE AGENT, COLLATERAL AGENT,
SOLE LEAD ARRANGER AND SOLE BOOK RUNNER
CONFORMED COPY
TABLE OF CONTENTS
PAGE
ARTTICLE I. DEFINITIONS; CERTAIN TERMS........................................1
Section 1.01 Definitions...........................................1
Section 1.02 Terms Generally......................................36
Section 1.03 Accounting and Other Terms...........................36
Section 1.04 Time References......................................37
ARTICLE II. THE LOANS........................................................37
Section 2.01 Commitments..........................................37
Section 2.02 Making the Loans.....................................38
Section 2.03 Repayment of Loans; Evidence of Debt.................38
Section 2.04 Interest.............................................39
Section 2.05 Reduction of Commitment; Prepayment of Loans.........40
Section 2.06 Fees.................................................46
Section 2.07 Securitization.......................................46
Section 2.08 Taxes................................................47
Section 2.09 LIBOR Not Determinable; Illegality or Impropriety....49
Section 2.10 Indemnity............................................50
Section 2.11 Continuation and Conversion of Loans.................51
Section 2.12 Conversion to Dollars................................51
ARTICLE III. LETTER OF CREDIT ACCOMMODATIONS AND OTHER MATTERS...............52
Section 3.01 Letter of Credit Accommodations......................52
Section 3.02 Collection of Accounts...............................57
Section 3.03 Payments.............................................57
Section 3.04 Settlement Procedures................................57
ARTICLE IV. FEES, PAYMENTS AND OTHER COMPENSATION............................60
Section 4.01 Audit and Collateral Monitoring Fees.................60
Section 4.02 Payments; Computations and Statements................60
Section 4.03 Sharing of Payments, Etc.............................61
Section 4.04 Apportionment of Payments............................62
Section 4.05 Increased Costs and Reduced Return...................63
Section 4.06 Joint and Several Liability of the Borrowers.........65
ARTICLE V. CONDITIONS TO LOANS...............................................66
Section 5.01 Conditions Precedent to Effectiveness of the Prior
Financing Agreement..............................................66
i
Section 5.02 Conditions Precedent to All Loans and Letter of
Credit Accommodations............................................71
Section 5.03 Conditions Precedent to Effectiveness of this
Agreement........................................................72
ARTICLE VI. REPRESENTATIONS AND WARRANTIES...................................72
Section 6.01 Representations and Warranties.......................72
ARTICLE VII. COVENANTS OF THE LOAN PARTIES...................................83
Section 7.01 Affirmative Covenants................................83
Section 7.02 Negative Covenants...................................95
Section 7.03 Financial Covenants.................................103
ARTICLE VIII. MANAGEMENT, COLLECTION AND STATUS OF ACCOUNTS RECEIVABLE
AND OTHER COLLATERAL..................................................104
Section 8.01 Collection of Accounts; Management of Collateral....104
Section 8.02 Accounts Documentation..............................107
Section 8.03 Status of Accounts and Other Collateral.............108
Section 8.04 Collateral Custodian................................108
Section 8.05 Collateral Reporting................................109
Section 8.06 Accounts Covenants..................................109
Section 8.07 Inventory Covenants.................................110
ARTICLE IX. EVENTS OF DEFAULT...............................................111
Section 9.01 Events of Default...................................111
ARTICLE X. AGENT............................................................116
Section 10.01 Appointment.........................................116
Section 10.02 Nature of Duties....................................116
Section 10.03 Rights, Exculpation, Etc............................116
Section 10.04 Reliance............................................118
Section 10.05 Indemnification.....................................118
Section 10.06 Agent Individually..................................118
Section 10.07 Successor Agent. ...................................119
Section 10.08 Collateral Matters..................................119
Section 10.09 Agency for Perfection...............................121
ARTICLE XI. GUARANTY........................................................121
Section 11.01 Guaranty............................................121
Section 11.02 Guaranty Absolute...................................121
Section 11.03 Waiver..............................................122
Section 11.04 Continuing Guaranty; Assignments....................123
Section 11.05 Subrogation.........................................123
ii
Section 11.06 Judgment............................................124
Section 11.07 Subordination and Intercreditor Agreement...........124
ARTICLE XII. MISCELLANEOUS..................................................124
Section 12.01 Notices, Etc........................................124
Section 12.02 Amendments, Etc.....................................125
Section 12.03 No Waiver; Remedies, Etc............................126
Section 12.04 Expenses; Taxes; Attorneys' Fees....................126
Section 12.05 Right of Set-off....................................127
Section 12.06 Severability........................................128
Section 12.07 Assignments and Participations......................128
Section 12.08 Counterparts........................................131
Section 12.09 GOVERNING LAW.......................................131
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND
VENUE...........................................................132
Section 12.11 WAIVER OF JURY TRIAL, ETC...........................132
Section 12.12 Consent by the Agents and Lenders...................133
Section 12.13 No Party Deemed Drafter.............................133
Section 12.14 Reinstatement; Certain Payments.....................133
Section 12.15 Indemnification.....................................133
Section 12.16 Parent as Agent for Borrowers.......................135
Section 12.17 Records.............................................136
Section 12.18 Binding Effect......................................136
Section 12.19 Interest............................................136
Section 12.20 Confidentiality.....................................137
Section 12.21 Integration.........................................138
Section 12.22 Replacement of Lenders..............................138
Section 12.23 Dutch Parallel Debt.................................138
Section 12.24 Restatement of Prior Financing Agreement............139
iii
SCHEDULE AND EXHIBITS
---------------------
Schedule 1.01(A) Lenders and Lenders' Commitments
Schedule 1.01(B) Initial Inventory Categories
Schedule 1.01(C) Depository Accounts
Schedule 1.01(D) Disbursement Accounts
Schedule 6.01(e) Subsidiaries
Schedule 6.01(f) Litigation; Commercial Tort Claims
Schedule 6.01(i) ERISA
Schedule 6.01(o) Real Property
Schedule 6.01(q) Operating Lease Obligations
Schedule 6.01(r) Environmental Matters
Schedule 6.01(s) Insurance
Schedule 6.01(u) Bank Accounts
Schedule 6.01(v) Intellectual Property
Schedule 6.01(w) Material Contracts
Schedule 6.01(aa) Name; Jurisdiction of Organization; Organizational ID Number;
Chief Place of Business; Chief Executive Office; FEIN
Schedule 6.01(bb) Tradenames
Schedule 6.01(cc) Collateral Locations
Schedule 7.02(a) Existing Liens
Schedule 7.02(b) Existing Indebtedness
Schedule 7.02(c)(i)Permitted Dispositions
Schedule 7.02(e) Existing Investments
Schedule 7.02(k) Limitations on Dividends and Other Payment Restrictions
Schedule 8.01 Cash Management Banks and Cash Management Accounts
Exhibit A Form of Guaranty
Exhibit B Form of Security Agreement
Exhibit C Form of Pledge Agreement
Exhibit D Form of Notice of Borrowing
Exhibit D2 Form of Notice of Conversion/Confirmation
Exhibit E Form of Borrowing Base Certificate
Exhibit F Form of Opinion of Counsel
Exhibit G Form of Intercompany Subordination Agreement
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Contribution Agreement
iv
CONFORMED COPY
AMENDED AND RESTATED FINANCING AGREEMENT
Amended and Restated Financing Agreement, dated as of March 30,
2004, by and among Milacron Inc., a Delaware corporation (the "Parent"), each
subsidiary of the Parent listed as a "Borrower" on the signature pages hereto
(together with the Parent, each a "Borrower" and collectively, the
"Borrowers"), each subsidiary of the Parent listed as a "Guarantor" on the
signature pages hereto (each, a "Guarantor" and collectively, the
"Guarantors"), the lenders from time to time party hereto (each, a "Lender" and
collectively, the "Lenders"), Credit Suisse First Boston, acting through its
Cayman Islands Branch ("CSFB"), as administrative agent and collateral agent
for the Lenders (in each such capacity, the "Administrative Agent" and the
"Collateral Agent", respectively).
RECITALS
The parties hereto are parties to a Financing Agreement dated as of
March 12, 2004 (the "Prior Financing Agreement"), pursuant to which the Lenders
extended credit to the Borrowers consisting of a $65,000,000 secured revolving
credit facility and a $75,000,000 secured term loan facility, including, under
the revolving credit facility, a $25,000,000 subfacility for the issuance of
letters of credit. The proceeds of the loans made under the credit facilities
were used to refinance existing indebtedness of the Borrowers and the
Guarantors, to repay the Borrowers' and the Guarantors' receivables
securitization facility (including through the repurchase of receivables), for
general corporate purposes of the Borrowers and the Guarantors and to pay fees
and expenses related to the Prior Financing Agreement. The letters of credit
were used for general corporate and working capital purposes.
In consideration of the premises and the covenants and agreements
contained herein, the parties hereto agree to amend and restate the Prior
Financing Agreement in its entirety as follows:
ARTICLE I.
DEFINITIONS; CERTAIN TERMS
Section 1.01 Definitions. As used in this Agreement, the following
terms shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"Acceptable Guaranty" means (x) any guarantee contemplated by the
Mizuho/Glencore Transaction Documents or (y) an unsecured guaranty made by any
Loan Party in favor of any of the holders of any New Euro Securities which
guaranty in this clause (y) (i) is, unless otherwise agreed to by the
Collateral Agent, subordinated in right of payment to all of the Obligations on
terms and conditions reasonably satisfactory to the Collateral Agent and (ii)
has other terms and conditions reasonably satisfactory to the Collateral Agent.
"Account Debtor" means each debtor, customer or obligor in any way
obligated on or in connection with any Account.
"Accounts" means, as to each Domestic Loan Party, all present and
future rights of such Domestic Loan Party to payment of a monetary obligation,
whether or not earned by performance, (a) for property that has been or is to
be sold, leased, assigned or otherwise disposed of, (b) for services rendered
or to be rendered, or (c) for a secondary obligation incurred or to be
incurred.
"Action" has the meaning specified therefor in Section 12.12.
"Activation Notice" has the meaning specified therefor in Section
8.01(b).
"Adjusted LIBOR" shall mean, with respect to any LIBOR Loan for any
Interest Period, an interest rate per annum equal to the product of (a) the
LIBOR in effect for such Interest Period and (b) the Reserve Percentage.
"Administrative Agent" has the meaning specified therefor in the
preamble hereto.
"Administrative Agent's Account" means an account at a bank
designated by the Administrative Agent from time to time as the account into
which the Loan Parties shall make all payments to the Administrative Agent for
the benefit of the Agents and the Lenders under this Agreement and the other
Loan Documents.
"Administrative Borrower" has the meaning specified therefor in
Section 12.16.
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" of a Person means the power, directly or indirectly,
either to (i) vote 10% or more of the Capital Stock having ordinary voting
power for the election of directors of such Person or (ii) direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise. Notwithstanding anything herein to the contrary, in no event shall
any Agent or any Lender be considered an "Affiliate" of any Loan Party.
"After Acquired Property" has the meaning specified therefor in
Section 7.01(n).
"Agent" means the Collateral Agent or the Administrative Agent, and
"Agents" means the Collateral Agent and the Administrative Agent, collectively.
"Agent Advances" has the meaning specified therefor in Section
10.08(a).
"Agreement" means this Financing Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"Approved Fund" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit in
the ordinary course of its business, any other fund that invests in bank loans
and similar extensions of credit in the
2
ordinary course of its business and is managed by the Lender, an Affiliate of
the Lender, the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by an assigning Lender and an assignee, and accepted by the
Collateral Agent or the Administrative Agent, in each case, to the extent
applicable, in accordance with Section 12.07 hereof and substantially in the
form of Exhibit H hereto or such other form acceptable to the Collateral Agent.
"Authorized Officer" means, with respect to any Person, the chief
executive officer, the chief financial officer, the president, any executive
vice president, the treasurer, any assistant treasurer, any vice president, the
secretary or the general counsel of such Person.
"Availability" means, at any time, an amount equal to the
difference between (i) the lesser of (A) the Borrowing Base and (B) the Total
Revolving A Credit Commitment and (ii) the sum of (A) the aggregate outstanding
principal amount of all Revolving A Loans and (B) all Letter of Credit
Obligations.
"B-Commitment" means, with respect to each Lender, the commitment
of such Lender to make a B-Loan to the Borrowers on the Effective Date in the
amount set forth opposite such Lender's name in Schedule 1.01(A) hereto.
"B-Loan" means a term loan made by a Lender to the Borrowers
pursuant to Section 2.01(a)(ii).
"B-Lender" means a Lender with a B-Commitment or a B-Loan.
"Bailee's Letter" means a letter in form and substance reasonably
acceptable to the Collateral Agent and executed by any Person (other than a
Loan Party) that is in possession of any Collateral on behalf of such Loan
Party pursuant to which such Person acknowledges the Lien of the Collateral
Agent for the benefit of the Collateral Agent and the Lenders with respect
thereto.
"Bankruptcy Code" means the United States Bankruptcy Code (11
U.S.C. (Section 101, et seq.), as amended, and any successor statute.
"Board" means the Board of Governors of the Federal Reserve System
of the United States.
"Board of Directors" means, with respect to any Person, the board
of directors (or comparable managers) of such Person or any committee thereof
duly authorized to act on behalf of the board.
"Book Value" means, with respect to any Inventory of any Person,
the lower of (i) cost (as reflected in the general ledger of such Person in
accordance with GAAP) computed in the same manner and consistent with the most
recent appraisals of Inventory conducted by Hilco or such other appraiser
reasonably acceptable to the Collateral Agent after consulting with the
Borrowers (which appraisals by such other appraiser will be on a basis
consistent with the
3
appraisals conducted by Hilco), and (ii) market value, in each case,
determined in accordance with GAAP calculated on a first-in first- out basis.
"Borrower" and "Borrowers" have the respective meanings specified
therefor in the preamble hereto.
"Borrowing Base" means, at any time (i) the sum of (A) 85% of the
value of the Net Amount of Eligible Accounts at such time; provided, however,
that the aggregate amount of this clause (A) attributable to Eligible Accounts
of Canadian Borrowing Base Guarantors shall not exceed $5,000,000, plus (B) the
least of (x) 35% of the Book Value of the Eligible Inventory at such time;
provided, however, that the aggregate amount of this clause (x) attributable to
Eligible Inventory described in clause (xi) of such definition shall not exceed
$500,000, (y) 85% of the aggregate Net Liquidation Values for all Inventory
Categories and (z) $25,000,000, minus (ii) Reserves.
"Borrowing Base Certificate" means a certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of
the Administrative Borrower and setting forth the calculation of the Borrowing
Base in compliance with Section 7.01(a)(vi), substantially in the form of
Exhibit E.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or Chicago, Illinois are
authorized or required to close; provided, that, with respect to the borrowing,
payment or continuation of, or determination of interest rate on LIBOR Loans,
Business Day shall mean any Business Day on which dealings in Dollars may be
carried on in the interbank eurodollar markets in New York City and London.
"Business Trade Secrets" has the meaning specified therefor in
Section 6.01(v)(ii).
"Canadian Benefit Plans" means all material employee benefit plans
of any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Loan Party having employees in Canada.
"Canadian Dollars" and the sign "Cdn.$" shall mean lawful currency
of Canada.
"Canadian Pension Plans" means each plan which is considered to be
a pension plan for the purposes of any applicable pension benefits standards
statute and/or regulation in Canada established, maintained or contributed to
by any Loan Party for its employees or former employees and shall not mean the
Canadian Pension Plan that is maintained by the Government of Canada.
"Canadian Subsidiary" means any Subsidiary of a Loan Party that is
created or organized under the laws of Canada or a Province or territory of
Canada.
"Canadian Borrowing Base Guarantor" means any wholly-owned Canadian
Subsidiary of Parent (a) which is able to prepare all collateral reports in a
comparable manner to the Borrowers' reporting procedures; (b) which has granted
to the Collateral Agent a first priority perfected Lien (subject to Permitted
Liens and other Liens acceptable to the Collateral Agent) on
4
all or substantially all of its personal property to secure payment and
performance of the Obligations; (c) with respect to which the Administrative
Agent has received all customary opinions, Uniform Commercial Code and
Personal Property Security Act search reports, certificates and other
documents reasonably requested by the Administrative Agent and such joinder
agreements to this Agreement, guaranties, contribution and set-off agreements
and such security agreements, pledge agreements, account control agreements
and other Loan Documents reasonably requested by the Administrative Agent in
form and substance reasonably satisfactory to the Administrative Agent; (d)
whose outstanding equity interests are subject to a first priority pledge in
favor of the Collateral Agent to secure payment and performance of the
Obligations; and (e) with respect to which the Collateral Agent has received
and approved, in its reasonable discretion, a collateral audit conducted by an
independent audit firm designated by Collateral Agent.
"Capital Expenditures" means, with respect to any Person for any
period, the aggregate of all expenditures by such Person and its Subsidiaries
during such period that in accordance with GAAP are or should be included in
"property, plant and equipment" or in a similar fixed asset account on its
balance sheet, whether such expenditures are paid in cash or financed and
including all Capitalized Lease Obligations paid or payable during such period,
other than expenditures made from the insurance proceeds or condemnation
awards.
"Capital Guideline" means any law, rule, regulation, policy,
guideline or directive (whether or not having the force of law and whether or
not the failure to comply therewith would be unlawful) of any central bank or
Governmental Authority (i) regarding capital adequacy, capital ratios, capital
requirements, the calculation of a bank's capital or similar matters, or
(ii) affecting the amount of capital required to be obtained or maintained by
any Lender, any Person controlling any Lender, or the L/C Issuer or the manner
in which any Lender, any Person controlling any Lender, or the L/C Issuer
allocates capital to any of its contingent liabilities (including letters of
credit), advances, acceptances, commitments, assets or liabilities.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, and (ii)
with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
"Capitalized Lease" means, with respect to any Person, any lease of
real or personal property by such Person as lessee which is (i) required under
GAAP to be capitalized on the balance sheet of such Person or (ii) a
transaction of a type commonly known as a "synthetic lease" (i.e., a lease
transaction that is treated as an operating lease for accounting purposes but
with respect to which payments of rent are intended to be treated as payments
of principal and interest on a loan for Federal income tax purposes).
"Capitalized Lease Obligations" means, with respect to any Person,
obligations of such Person and its Subsidiaries under Capitalized Leases, and,
for purposes hereof, the amount of any such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
5
"Cash Management Accounts" means those bank accounts of each Loan
Party listed on Schedule 8.01 that are maintained at one or more Cash
Management Banks listed on Schedule 8.01.
"Cash Management Agreements" means those certain cash management
service agreements, in form and substance reasonably satisfactory to the
Administrative Agent, each of which is among the applicable Loan Party, the
Administrative Agent and one of the Cash Management Banks.
"Cash Management Bank" has the meaning specified therefor in
Section 8.01(a).
"Change of Control" means each occurrence of any of the following:
(a) other than pursuant to the Note Restructuring Transactions,
the acquisition, directly or indirectly, by any Person or group (within the
meaning of Section 13(d)(3) of the Exchange Act), other than a Permitted
Holder, of beneficial ownership of more than 20% of the aggregate outstanding
ordinary voting power of the Capital Stock of the Parent;
(b) other than pursuant to the Note Restructuring Transactions,
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Parent (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Parent was approved by a vote of at least a
majority the directors of the Parent then still in office who were either
directors at the beginning of such period, or whose election or nomination for
election was previously approved) cease for any reason to constitute a majority
of the Board of Directors of the Parent;
(c) the Parent shall cease to have beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 100%
of the aggregate voting power of the Capital Stock of each other Loan Party,
free and clear of all Liens (other than any Liens granted under the Loan
Documents and Permitted Liens), except to the extent resulting from a
transaction specifically permitted under Section 7.02(c); or
(d) (i) any Loan Party consolidates or amalgamates with or
merges into another entity or conveys, transfers or leases all or substantially
all of its property and assets to another Person, or (ii) any entity
consolidates or amalgamates with or merges into any Loan Party in a transaction
pursuant to which the outstanding voting Capital Stock of such Loan Party is
reclassified or changed into or exchanged for cash, securities or other
property, other than any such transaction described in this clause (ii) in
which either (A) in the case of any such transaction involving the Parent, no
Person or group (within the meaning of Section 13(d)(3) of the Exchange Act),
other than a Permitted Holder, has, directly or indirectly, acquired beneficial
ownership of more than 20% of the aggregate outstanding ordinary voting Capital
Stock of the Parent or (B) in the case of any such transaction involving a Loan
Party other than the Parent, the Parent has beneficial ownership, directly or
indirectly, of 100% of the aggregate voting power of all Capital Stock of the
resulting, surviving or transferee entity.
"Change in Law" has the meaning specified therefor in Section
4.05(a).
6
"China JV" means Milacron Plastics Machinery (Jiangyin) Co. LTD, a
limited liability company and an enterprise legal person under the laws of
China, to be formed as a joint venture between Jiangnan Mould & Plastic
Technology Co., LTD. (30%) and Milacron Plastics Technologies Group Inc. (70%)
for the purpose of research and development, design, manufacture, import
processing, processing and assembly and sale of plastics processing machinery
and supplies, molds for non-metallic articles, dies for motor vehicles, and
jigs, provision of related after-sales services, training, technical support
and technical consulting services.
"CLO" means any entity (whether a corporation, partnership, trust
or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender.
"Collateral" means all of the property and assets and all interests
therein and proceeds thereof now owned or hereafter acquired by any Person upon
which a Lien is granted or purported to be granted by such Person as security
for all or any part of the Obligations.
"Collateral Agent" has the meaning specified therefor in the
preamble hereto.
"Collections" means all cash, checks, notes, instruments and other
items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds and tax refunds) of the Domestic Loan Parties.
"Commitment" means, with respect to each Lender, such Lender's
Revolving A Credit Commitment and B-Commitment.
"Concentration Account" means the Parent's account no. 5XXXXX45 at
Deutsche Bank AG in New York, New York identified on Schedule 6.01(u).
"Consolidated EBITDA" means, for any period, the Consolidated Net
Income of Parent and its Consolidated Subsidiaries for such period, plus the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Expense; plus (ii) all income tax expense of Parent
and its Consolidated Subsidiaries; plus (iii) depreciation and amortization
expense of Parent and its Consolidated Subsidiaries; plus (iv) all losses
attributable to discontinued operations; plus (v) restructuring charges and
related severance and other expenses not to exceed $1,500,000 while any Loan
remains outstanding; plus (vi) all other non-cash charges of Parent and its
Consolidated Subsidiaries (excluding any such non-cash charge to the extent
that it represents an accrual of or reserve for cash expenditures in any future
period); plus (vii) expenses related to debt refinancing; plus (viii) any
extraordinary or nonrecurring items of loss for such period as calculated by
Parent and acceptable to the Administrative Agent in its reasonable discretion,
based upon and derived from financial information delivered to the
Administrative Agent; plus (ix) any payment of fees and expenses under the
Existing Receivables Facility (as the same may be amended, extended, renewed,
refinanced, replaced, supplemented or modified from time to time) or any
replacement receivables liquidity facility; plus (x) commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing; minus (xi) all gains attributable to discontinued
operations;
7
minus (xi) any extraordinary or nonrecurring items of gain for such period; in
each case determined on a consolidated basis for such period in conformity
with GAAP.
"Consolidated Interest Expense" means, for any period, the total
interest expense of Parent and its Consolidated Subsidiaries, whether paid in
cash or accrued as a liability, plus, to the extent not included in such total
interest expense, and to the extent deducted in determining Consolidated Net
Income, without duplication: (i) the interest component of all payments
associated with Capitalized Lease Obligations; plus (ii) amortization of debt
discount and debt issuance cost; plus (iii) capitalized interest; plus (iv)
losses and upfront costs on Hedging Agreements; plus (v) interest accruing on
any Indebtedness of any other Person to the extent such Indebtedness is a
primary obligation in respect of a Contingent Obligation of (or secured by the
assets of) Parent or any Consolidated Subsidiary; minus (vi) interest income
for such period; minus (vii) gains for such period on Hedging Agreements; in
each case determined on a consolidated basis for such period in conformity with
GAAP.
"Consolidated Net Income" means, for any period, the net income of
Parent and its Consolidated Subsidiaries, excluding the cumulative effect of a
change in accounting principles.
"Consolidated Subsidiaries" means, with respect to Parent, each
subsidiary consolidated with Parent in its financial statements prepared in
accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, (i) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of a primary obligor, (ii) the obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement, (iii) any obligation of such
Person, whether or not contingent, (A) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (B) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (C) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or
(D) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term "Contingent
Obligation" shall not include any product warranties extended in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation with respect to which such Contingent Obligation is made (or, if
less, the maximum amount of such primary obligation for which such Person may
be liable pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability with respect thereto (assuming such Person is required to
perform thereunder), as determined by such Person in good faith.
8
"Contribution Agreement" means the Contribution Agreement, dated as
of the Effective Date, among the Loan Parties, substantially in the form of
Exhibit I.
"Control Agreement" means a control agreement, in form and
substance reasonably satisfactory to the Administrative Agent, executed and
delivered by the applicable Loan Party, the Administrative Agent, and the
applicable bank with respect to a deposit account.
"CSFB" has the meaning specified therefor in the preamble hereto.
"Current Asset Collateral" means all Collateral other than Fixed
Asset Collateral.
"Current Value" has the meaning specified therefor in Section
7.01(n).
"Default" means an event which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.
"Defaulting Lender" has the meaning specified therefor in Section
3.04(d).
"Depository Account" means each of the bank accounts listed on
Schedule 1.01(C) hereto.
"Designated Business" means the line of business of the Loan
Parties identified as the "Designated Business" in Part A of Schedule
7.02(c)(i).
"Designated Business Disposition" has the meaning specified
therefor in Section 7.02(c)(i).
"Designated Disposition" means the Designated Business Disposition
and the Designated Real Property Disposition.
"Designated Real Property" means the real property identified as
the "Designated Real Property" in Part B of Schedule 7.02(c)(i).
"Designated Real Property Disposition" has the meaning specified
therefor in Section 7.02(c)(i).
"Disbursement Account" mean each of the bank accounts listed on
Schedule 1.01(D) hereto.
"Disposition" means any transaction, or series of related
transactions, pursuant to which any Person or any of its Subsidiaries sells,
assigns, transfers or otherwise disposes of any property or assets (whether now
owned or hereafter acquired) to any other Person, in each case, whether or not
the consideration therefor consists of cash, securities or other assets owned
by the acquiring Person, excluding any (x) sales of Inventory in the ordinary
course of business on ordinary business terms and (y) dispositions of cash or
sales or liquidations of Permitted Investments or other similar cash
equivalents that are not otherwise in violation of the terms of this Agreement.
9
"Dollar," "Dollars" and the symbol "$" each means lawful money of
the United States of America.
"Dollar Equivalent" means, at any time, (a) with respect to any
amount denominated in Dollars, such amount of Dollars, and (b) with respect to
any amount denominated in any currency other than Dollars, the amount of
Dollars as reasonably determined by the Administrative Agent at such time on
the basis of the Spot Rate for the purchase of Dollars with such other
currency.
"Domestic Loan Party" means any Loan Party that is organized under
the laws of the United States or any state thereof.
"Domestic Subsidiary" means any Subsidiary of a Loan Party that is
organized under the laws of the United States or any state thereof.
"Effective Date" means March 12, 2004.
"Eligible Accounts" means, at any time, Accounts of a Domestic Loan
Party or a Canadian Borrowing Base Guarantor which at such time meet all of the
following specifications; provided that such specifications may be revised from
time to time by the Administrative Agent in a customary manner in the exercise
of its reasonable credit judgment to account for events, conditions,
contingencies or risks which adversely affect or could reasonably be expected
to adversely affect any Accounts in the reasonable credit judgment of the
Administrative Agent: (i) delivery of the merchandise or the rendition of the
services has been completed with respect to such Account and the Account Debtor
has been invoiced therefor; (ii) the Account Debtor has not asserted any
setoff, defense or counterclaim with respect to such Account, and there has not
occurred any extension of the time for payment with respect to such Account
without the consent of the Administrative Agent, provided that, in the case of
any dispute, setoff, defense or counterclaim with respect to an Account, the
portion of such Account not subject to such dispute, setoff, defense or
counterclaim will not be ineligible solely by reason of this clause (ii); (iii)
such Account is lawfully owned by a Domestic Loan Party or a Canadian Borrowing
Base Guarantor free and clear of any Lien other than Liens permitted by Section
8.03 (including Prior Claims that are unregistered and secure amounts that are
not yet due and payable) and otherwise continues to be in conformity in all
material respects with all representations and warranties made by a Domestic
Loan Party and a Canadian Borrowing Base Guarantor, as the case may be, to the
Collateral Agent and the Lenders with respect thereto in the Loan Documents;
(iv) such Account is unconditionally payable in Dollars or Canadian Dollars, as
applicable, within 90 days from the invoice date and is not evidenced by a
promissory note, chattel paper or any other instrument or other document; (v)
no more than 60 days have elapsed from the invoice due date and no more than
120 days have elapsed from the invoice date with respect to such Account; (vi)
such Account is not due from an Affiliate of a Domestic Loan Party or a
Canadian Borrowing Base Guarantor; (vii) such Account does not constitute an
obligation of the United States or any other Governmental Authority (unless all
steps reasonably required by the Administrative Agent in connection therewith,
including notice to the United States Government under the Federal Assignment
of Claims Act or any action under any state statute comparable to the Federal
Assignment of Claims Act, have been duly taken in a manner reasonably
satisfactory to the Administrative Agent); (viii) the Account Debtor (or the
applicable office of the Account
10
Debtor) with respect to such Account is located in the continental United
States or Canada, unless such Account is supported by a letter of credit,
export insurance or other similar obligation the terms and conditions of which
are reasonably satisfactory to the Administrative Agent; (ix) the Account
Debtor with respect to such Account is not also a supplier to or creditor of a
Domestic Loan Party or a Canadian Borrowing Base Guarantor, unless such
Account Debtor has executed a no-offset letter satisfactory to the
Administrative Agent; (x) not more than 50% of the aggregate amount of all
Accounts of the Account Debtor with respect to such Account are not Eligible
Accounts; (xi) to the knowledge of the Borrowers, the Account Debtor with
respect to such Account (A) has not filed a petition for bankruptcy or any
other relief under the Bankruptcy Code or any other law relating to
bankruptcy, insolvency, reorganization or relief of debtors, made an
assignment for the benefit of creditors, had filed against it any petition or
other application for relief under the Bankruptcy Code or any such other law,
(B) has not failed, suspended business operations or become insolvent or (C)
has not had or suffered to be appointed a receiver or a trustee for all or a
significant portion of its assets or affairs; (xii) such Accounts are not
subject to collection by an outside claims processor; (xiii) the otherwise
Eligible Accounts of any Account Debtor do not exceed 10% of all Eligible
Accounts; (xiv) such Account does not arise in a transaction wherein goods are
placed on consignment or are sold pursuant to a guaranteed sale, a sale or
return, a sale on approval, a ▇▇▇▇ and hold, or any other terms by reason of
which the payment by the Account Debtor may be conditional; (xv) such Account
is not from an Account Debtor that is located in a state or jurisdiction
(e.g., New Jersey, Minnesota, and West Virginia) that requires, as a condition
to access to the courts of such jurisdiction, that a creditor qualify to
transact business, file a business activities report or other report or form,
or take one or more other actions, unless the applicable Domestic Loan Party
or the applicable Canadian Borrowing Base Guarantor has so qualified, filed
such reports or forms, or taken such actions (and, in each case, paid any
required fees or other charges), except to the extent such Domestic Loan Party
or a Canadian Borrowing Base Guarantor may qualify subsequently as a foreign
entity authorized to transact business in such state or jurisdiction and gain
access to such courts, without incurring any cost or penalty reasonably viewed
by the Administrative Agent to be material in amount, and such later
qualification cures any access to such courts to enforce payment of such
Account; (xvi) such Accounts do not consist of progress ▇▇▇▇▇▇▇▇ (such that
the obligation of the Account Debtors with respect to such Accounts is
conditioned upon the applicable Domestic Loan Party's satisfactory completion
of any further performance under the agreement giving rise thereto), ▇▇▇▇ and
hold invoices or retainage invoices, except as to ▇▇▇▇ and hold invoices, if
the Administrative Agent shall have received an agreement in writing from the
Account Debtor, in form and substance satisfactory to the Administrative
Agent, confirming the unconditional obligation of the Account Debtor to take
the goods related thereto and pay such invoice; (xvii) such Accounts are not
owned or otherwise generated by the Designated Business; and (xviii) the
Administrative Agent is, and continues to be, reasonably satisfied with the
credit standing of the Account Debtor in relation to the amount of credit
extended and the Administrative Agent does not believe, in its reasonable
discretion, that the prospect of collection of such Account is impaired for
any reason.
"Eligible Inventory" means all finished goods and raw materials
Inventory of a Domestic Loan Party which at any time meets all of the following
specifications, provided that such specifications may be fixed and revised from
time to time by the Administrative Agent in a customary manner in the exercise
of its reasonable credit judgment to account for events, conditions,
contingencies or risks which adversely affect or could reasonably be expected
to
11
adversely affect any Inventory in the reasonable credit judgment of the
Administrative Agent: (i) such Inventory is lawfully owned by a Domestic Loan
Party free and clear of any existing Lien and otherwise continues to be in
full conformity in all material respects with all representations and
warranties made by a Domestic Loan Party to the Agents and the Lenders with
respect thereto in the Loan Documents; (ii) such Inventory is not held on
consignment and may be lawfully sold; (iii) a Domestic Loan Party has the
right to grant Liens on such Inventory; (iv) such Inventory arose or was
acquired in the ordinary course of the business of a Domestic Loan Party and
does not represent damaged, obsolete or unsalable goods; (v) no Account or
document of title has been created or issued with respect to such Inventory;
(vi) such Inventory is located in one of the locations in one of the
continental United States that is either owned by a Loan Party or listed on
Schedule 6.01(cc) or such other locations in the continental United States as
the Administrative Agent may approve in writing from time to time (such
approval not to be unreasonably withheld); (vii) such Inventory does not
consist of goods returned or rejected by a Domestic Loan Party's customers
(other than goods that are undamaged and resalable in the normal course of
business); (viii) such Inventory is not in-transit (except between locations
specified on Schedule 6.01(cc)); (ix) such Inventory does not consist of goods
that are slow moving, work-in-process (including, without limitation, machines
in the process of completion), supplies or goods that constitute packaging and
shipping materials, ▇▇▇▇ and hold goods or defective goods; (x) in the case of
raw materials used in the manufacture of finished goods, such raw materials
have been acquired by the Domestic Loan Parties during the previous twelve
months; (xi) such Inventory has not been consigned to a Domestic Loan Party's
customer, unless (a) such consigned Inventory with such customer at a
particular location has an aggregate Book Value in excess of $100,000, (b)
such consigned Inventory has been delivered to a customer location in respect
of which a satisfactory access agreement has been executed in favor of and
received by the Collateral Agent, (c) such consigned Inventory is segregated
or otherwise separately identifiable from any goods of any other Person at the
applicable customer location, (d) a UCC-1 financing statement has been filed
in the jurisdiction of the applicable customer's organization, which names
such customer as debtor, the applicable Domestic Loan Party as secured party
and the Collateral Agent as assignee of secured party and which identifies
such consigned Inventory in the possession of such customer as the collateral
and (e) a notice that complies with the terms of Section 9-324 of the Uniform
Commercial Code has been delivered to the secured creditors, if any, of the
applicable customer that have a perfected Lien in the Inventory of such
customer; (xii) such Inventory is not owned by the Designated Business; and
(xiii) if such Inventory consists of finished goods Inventory sold under a
licensed trademark or if such Inventory contains or uses a medium subject to a
copyright (A) the Collateral Agent shall have entered into a waiver letter, in
form and substance satisfactory to the Collateral Agent, with the licensor
with respect to the rights of the Collateral Agent to use the licensed
trademark or copyright to sell or otherwise dispose of such Inventory or (B)
the Collateral Agent shall otherwise be satisfied, in its reasonable
discretion, that the Collateral Agent has rights to sell or dispose of such
Inventory.
"Employee Plan" means an employee pension benefit plan (other than
a Multiemployer Plan) covered by Title IV of ERISA and maintained (or that was
maintained at any time during the five (5) calendar years preceding the date of
any borrowing hereunder) for employees of any Loan Party or any of its ERISA
Affiliates or was contributed to (or was required to be contributed to at any
time during the five (5) calendar years preceding the date of any borrowing
hereunder) by a Loan Party or any of its ERISA Affiliates.
12
"Environmental Actions" means any complaint, summons, citation,
written notice of violation, directive, order, claim, litigation,
investigation, judicial or administrative proceeding or judgment by or letter
or other written communication from any Person or Governmental Authority
resulting or arising from any violations of Environmental Laws or Releases of
Hazardous Materials (i) from any assets, properties or businesses owned or
operated by any Loan Party or any of its Subsidiaries or any predecessor in
interest; (ii) from adjoining properties; or (iii) onto any facilities which
received Hazardous Materials generated by any Loan Party or any of its
Subsidiaries or any predecessor in interest.
"Environmental Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as
amended; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et
seq., as amended; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et seq., as
amended; the Clean Water Act ("CWA"), 33 U.S.C. 1251 et seq., as amended; the
Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 655 et seq., as amended;
Toxic Substances Control Act ("TOSCA"), 15 U.S.C. 2601 et seq., as amended;
Hazardous Materials Transportation Act, 49 U.S.C. 5101 et seq., as amended; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. 136-
136y et seq., as amended; the Emergency Planning and Community Right-to-Know
Act of 1986 (Title III of ▇▇▇▇ or "EPCRA"), 42 U.S.C. 11001, et seq., as
amended; and any other foreign, federal, state, local or municipal laws,
statutes, regulations, guidance documents, rules having the force of law or
ordinances imposing liability or establishing standards of conduct for the
Release or Handling of Hazardous Materials and the protection of the health,
safety and the environment and, to the extent relating to the Release or
Handling of Hazardous Materials, healthy and safety.
"Environmental Liabilities and Costs" means any monetary
obligations, losses, liabilities (including strict liability), damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including all reasonable out-of-pocket fees, disbursements and expenses of
counsel, out-of-pocket expert and consulting fees and out-of pocket costs for
environmental site assessments, remedial investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
Environmental Action filed by any Governmental Authority, Person or any third
party which relate to any violations of Environmental Laws, Handling of
Hazardous Materials, Remedial Actions, Releases or threatened Releases of
Hazardous Materials from or onto (i) any property presently or, during the
period of ownership or operation by any Loan Party, formerly owned by any Loan
Party or any of its Subsidiaries or a predecessor in interest, or (ii) any
facility that received Hazardous Materials that were generated or Handled by
any Loan Party or any of its Subsidiaries or a predecessor in interest.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Environmental Permits" means any permits, licenses, certificates,
exemptions, authorizations, registrations or approvals required by any
Governmental Authority or under Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute and regulations thereunder, in each case,
as in effect from
13
time to time. References to sections of ERISA shall be construed also to refer
to any successor sections.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which is treated as a single employer
with such Person and which would be deemed to be a "controlled group" within
the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.
"Euro" means the single currency of participating member states
of the European Union.
"Euro Indenture" means the Fiscal Agency Agreement, dated as of
April 6, 2000, by and among Milacron Capital, as issuer, the Parent, as
guarantor, Deutsche Bank AG London, as fiscal agent and Deutsche Bank
Luxembourg S.A., as paying agent, as the same may be amended, restated or
otherwise modified in accordance with the terms hereof.
"Euro Note Holders" means the Persons from time to time holding the
Euro Notes.
"Euro Note Restructuring Transaction" means a transaction that
refinances, restructures, replaces, exchanges, redeems, repays or modifies the
Euro Notes or the obligations owing under the Euro Indenture and in respect of
which any new and/or restructured notes or other unsecured and/or subordinated
Indebtedness, common Capital Stock (or rights exercisable solely to acquire
common Capital Stock) or preferred Capital Stock, or any combination thereof,
are issued in accordance with the terms and conditions set forth in the
definition of "New Euro Securities"; provided, that in the case of all payments
made in connection with the consummation of such transaction (including without
limitation, payment of principal, interest, fees, costs, expenses or other
obligations related thereto), the Borrowers may use proceeds of Revolving Loans
in an aggregate principal amount not exceeding $5,000,000 to fund all such
payments in respect of such transaction to the extent that after making all
such payments from such proceeds of Revolving Loans, Excess Availability
exceeds Required Availability.
"Euro Notes" means, collectively, the 7.625% Guaranteed Fixed Rate
Bonds due 2005 of Milacron Capital in the original aggregate principal amount
of Euro 115,000,000 issued pursuant to the Euro Indenture, as the same may from
time to time be amended, restated or otherwise modified in accordance with the
terms hereof other than amendments, restatements or other modifications by
which such notes become New Euro Securities.
"Event of Default" means any of the events set forth in Section
9.01.
"Excess Availability" means, at any time, an amount equal to the
difference between (a) the difference between (i) the lesser of (A) the
Borrowing Base and (B) the Total Revolving A Credit Commitment and (ii) the sum
of (A) the aggregate outstanding principal amount of all Revolving A Loans and
(B) all Letter of Credit Obligations, and (b) the aggregate amount of accounts
payable of the Loan Parties that are past due beyond historical levels.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
14
"Excluded Note Event" means any actual or alleged "Default" or
"Event of Default" (or any similar defined terms or concept) under, and as
defined in, or any other actual or alleged breach or violation of the terms or
conditions of, any of the Euro Notes or the Euro Indenture, whether or not
resulting in acceleration of any or all of the Euro Notes, or any action by any
Euro Note Holder and/or any agent under the Euro Indenture, in respect of the
Euro Notes, including the acceleration of the Euro Notes or the commencement of
the exercise of enforcement rights or remedies in respect of the Euro Notes
(including any actions of the type specified in clauses (x), (y) and (z) of
Section 9.01(u)).
"Existing Agent" means Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as administrative agent under the
Existing Credit Facility.
"Existing Credit Facility" means the Amended and Restated Revolving
Credit Agreement, dated as of November 30, 1998 (as amended by Amendment No. 1
thereto dated as of March 31, 1999, Amendment No. 2 thereto dated as of January
31, 2000, Amendment No. 3 thereto dated as of July 13, 2000, Amendment No. 4
thereto dated as of August 8, 2001, Amendment No. 5 thereto dated as of
September 30, 2001, Amendment No. 6 thereto dated as of March 14, 2002, the
letter agreement, dated as of May 3, 2002, the two letter agreements, dated as
of June 17, 2002, Amendment No. 7 thereto dated as of November 6, 2002, the
Waiver and Agreement dated as of December 30, 2002, Amendment No. 8 thereto
dated as of February 11, 2003, Amendment No. 9 thereto dated as of August 13,
2003, and Amendment No. 10 thereto dated as of November 25, 2003), among the
Parent, Milacron Kunststoffmaschinen Europa GmbH, and Milacron B.V, as
borrowers, the Existing Lenders, the Existing Agent and PNC Bank, as
documentation agent, as amended to date.
"Existing Lenders" means the lenders party to the Existing Credit
Facility.
"Existing Receivables Facility" means the Third Amended and
Restated Receivables Purchase Agreement dated as of November 15, 2001 (as
amended by Amendment No. 1 thereto dated as of June 7, 2002, Amendment No. 2
thereto dated as of August 1, 2002, Amendment No. 3 thereto dated as of
December 31, 2002, Amendment No. 4 thereto dated as of January 31, 2003,
Amendment No. 5 thereto dated as of September 12, 2003, Amendment No. 6 thereto
dated as of October 30, 2003 and Amendment No. 7 thereto dated as of December
22, 2003), among the Parent and Milacron Commercial Corp., as sellers, D-M-E
Company, as DME subservicer, Uniloy Milacron Inc., as subservicer, Milacron
Marketing Company, as initial servicer, Market Street Funding Corporation, as
purchaser, and PNC Bank, National Association, as administrator.
"Existing Obligations" means the "Obligations", as defined in the
Prior Financing Agreement.
"Extraordinary Receipts" means any Net Cash Proceeds, received by
any Loan Party or any of its Domestic Subsidiaries not in the ordinary course
of business (and not consisting of proceeds described in Section 2.05(c)(iii)
or (iv) hereof), including, without limitation, (i) foreign, United States,
state or local tax refunds, (ii) pension plan reversions, (iii) proceeds of
insurance, (iv) judgments, proceeds of settlements or other consideration of
any kind in connection with any cause of action, (v) condemnation awards (and
payments in lieu thereof),
15
(vi) indemnity payments and (vii) any purchase price adjustment received in
connection with any purchase agreement.
"Facility" means each parcel of real property identified as a
"Facility" on Schedule 6.01(o) that is owned by a Loan Party on the Effective
Date, including, without limitation, the land on which such facility is
located, all buildings and other improvements thereon, all fixtures located at
or used in connection with such facility, all whether now or hereafter
existing.
"Fanuc Agreement" means the Distributorship Agreement, dated as of
April 1, 1995, by and between Fanuc Ltd. and Milacron Marketing Company
(formerly known as Cincinnati Milacron Marketing Company).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal to, for each day during such period, the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fee Letter" means that certain Fee Letter dated as of March 12,
2004 by and between CSFB and the Parent.
"Field Survey and Audit" means a field survey and audit of the Loan
Parties and an appraisal of the Collateral performed by auditors, examiners
and/or appraisers selected by the Collateral Agent, at the sole cost and
expense of the Borrowers.
"Final Maturity Date" means the earlier to occur of (i) February 28,
2005, or (ii) such earlier date on which any Loan shall become due and
payable in accordance with the terms of this Agreement and the other Loan
Documents.
"Financial Statements" means (i) the audited consolidated balance
sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31,
2002, and the related consolidated statement of operations, shareholders'
equity and cash flows for the Fiscal Year then ended, and (ii) the most recent
unaudited consolidated balance sheet of the Parent and its Subsidiaries for the
twelve months ended December 31, 2003, and the related consolidated statement
of operations, shareholder's equity and cash flows for the twelve months then
ended delivered to the Administrative Agent on the Effective Date pursuant to
Section 5.01(d)(xvi).
"Fiscal Year" means the fiscal year of the Parent and its
Subsidiaries ending on December 31 of each year.
"Fixed Asset Collateral" means that portion of the Collateral
consisting of real property, fixtures, equipment, Capital Stock and the
proceeds and insurance proceeds thereof; provided, however, that at any time
while any Revolving A Loans remain outstanding or any Letter of Credit
Obligations remain unpaid or are not cash-collateralized in an amount equal to
105% of the aggregate face amount of Letters of Credit outstanding, "Fixed
Asset Collateral"
16
shall not include that portion of the proceeds of any Disposition of Capital
Stock of any Person to the extent such Person's Accounts and Inventory are
included in the Borrowing Base supporting Revolving A Loans or Letter of
Credit Obligations.
"Foreign Insurance Prepayment" has the meaning specified therefor
in clause (j) of the definition of Permitted Indebtedness.
"Foreign Subsidiary" means any Subsidiary of a Loan Party that is
not a Domestic Subsidiary (other than Milacron Capital). For purposes of this
Agreement, no Loan Party shall be deemed to be a Foreign Subsidiary.
"GAAP" means generally accepted accounting principles in effect
from time to time in the United States, applied on a consistent basis, provided
that for the purpose of Section 7.03 hereof and the definitions used therein,
"GAAP" shall mean generally accepted accounting principles in effect on the
date hereof and consistent with those used in the preparation of the Financial
Statements, provided, further, that if there occurs after the date of this
Agreement any change in GAAP that affects in any respect the calculation of any
covenant contained in Section 7.03 hereof, the Collateral Agent and the
Administrative Borrower shall negotiate in good faith amendments to the
provisions of this Agreement that relate to the calculation of such covenant
with the intent of having the respective positions of the Lenders and the
Borrowers after such change in GAAP conform as nearly as possible to their
respective positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the covenants in Section 7.03 hereof shall be
calculated as if no such change in GAAP has occurred.
"Governmental Authority" means any nation or government, any
Federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guaranteed Obligations" has the meaning specified therefor in
Section 11.01.
"Guarantor" means (i) each Subsidiary of the Parent listed as a
"Guarantor" on the signature pages hereto, and (ii) each other Person which
guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the
Obligations.
"Guaranty" means (i) the guaranty of each Guarantor party hereto
contained in ARTICLE XI hereof, and (ii) each guaranty substantially in the
form of Exhibit A, made by any other Guarantor in favor of the Collateral Agent
for the benefit of the Agents and the Lenders pursuant to Section 7.01(b) or
otherwise.
"Handle" means any manner of generating, accumulating, storing,
treating, disposing of, transporting, transferring, handling, manufacturing or
using, as any of such terms may further be defined in any Environmental Law,
any Hazardous Materials.
"Hazardous Material" means (a) any element, compound or chemical
that is defined, listed or otherwise classified as a contaminant, pollutant,
toxic pollutant, toxic or hazardous substance, extremely hazardous substance or
chemical, hazardous waste, special
17
waste, or solid waste under Environmental Laws or that is likely to cause
immediately, or at some future time, harm to or have an adverse effect on, the
environment or risk to human health or safety, including, without limitation,
any pollutant, contaminant, waste, hazardous waste, toxic substance or
dangerous good which is defined or identified in any Environmental Law and
which is present in the environment in such quantity or state that it
contravenes any Environmental Law; (b) petroleum and its refined products; (c)
polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste
characteristic under any Environmental Law, including, without limitation,
corrosivity, ignitability, toxicity or reactivity as well as any radioactive
or explosive materials; and (e) any asbestos-containing materials and
manufactured products containing hazardous substances listed or classified as
such under Environmental Laws.
"Hedging Agreement" means any interest rate, foreign currency,
commodity or equity swap, collar, cap, floor or forward rate agreement, or
other agreement or arrangement designed to protect against fluctuations in
interest rates or currency, commodity or equity values (including, without
limitation, any option with respect to any of the foregoing and any combination
of the foregoing agreements or arrangements), and any confirmation executed in
connection with any such agreement or arrangement.
"Highest Lawful Rate" means, with respect to the Administrative
Agent or any Lender, the maximum non-usurious interest rate, if any, that at
any time or from time to time may be contracted for, taken, reserved, charged
or received on the Obligations under laws applicable to the Administrative
Agent or such Lender which are currently in effect or, to the extent allowed by
law, under such applicable laws which may hereafter be in effect and which
allow a higher maximum non-usurious interest rate than applicable laws now
allow.
"Hilco" means Hilco Appraisal Services, LLC.
"Inactive Subsidiaries" means Amertool Services Corp., Amertool
Services Inc., Milacron DISC Corp., Milacron International Sales Co.,
Cincinnati Grinders Inc., Cincinnati Milling and Grinding, Cincinnati Milling
Machine Co., Cincinnati Milacron UK Holdings Co. and Cincinnati Holding
Company.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money; (ii) all
obligations of such Person for the deferred purchase price of property or
services (other than trade payables or other accounts payable incurred in the
ordinary course of such Person's business and not outstanding for more than 120
days after the date such payable was due, unless (if outstanding more than 120
days after the date such payable was due) they are being contested in good
faith and by appropriate proceedings promptly initiated and diligently
conducted); (iii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments or upon which interest payments
are customarily made; (iv) all reimbursement, payment or other obligations and
liabilities of such Person created or arising under any conditional sales or
other title retention agreement with respect to property used and/or acquired
by such Person, even though the rights and remedies of the lessor, seller
and/or lender thereunder may be limited to repossession or sale of such
property; (v) all Capitalized Lease Obligations of such Person; (vi) all
obligations and liabilities, contingent or otherwise, of such Person, in
respect of letters of credit, acceptances and similar facilities; (vii) all
obligations and liabilities, calculated on a basis satisfactory to the
18
Collateral Agent and in accordance with accepted practice, of such Person under
Hedging Agreements; (viii) all Contingent Obligations; and (ix) all obligations
referred to in clauses (i) through (x) of this definition of another Person
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien upon property owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness. The Indebtedness of any Person shall include the
Indebtedness of any partnership of or joint venture in which such Person is a
general partner or a joint venturer except to the extent such Person is not
liable for such Indebtedness.
"Indemnified Matters" has the meaning specified therefor in Section
12.15.
"Indemnitees" has the meaning specified therefor in Section 12.15.
"Indenture Deficit" has the meaning specified therefor in Section
2.01(c).
"Insolvency Proceeding" means any proceeding commenced by or
against any Person under any provision of the Bankruptcy Code or under any
other bankruptcy or insolvency law, assignments for the benefit of creditors,
formal or informal moratoria, compositions, or extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
"ITA" means the Income Tax Act (Canada), as the same may, from time
to time, be in effect.
"Intercompany Subordination Agreement" means an Intercompany
Subordination Agreement made by a Loan Party or any Subsidiary of a Loan Party
in favor of the Collateral Agent, for the benefit of the Agents and the
Lenders, substantially in the form of Exhibit G.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the borrowing date or the date of any continuation of such LIBOR
Loan, as the case may be, and ending one, two or three months thereafter, as
selected by the Administrative Borrower in the applicable notice given to the
Administrative Agent pursuant to Sections 2.02 or 2.11 hereof, provided that
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) no Interest Period
for any LIBOR Loan shall end after the Final Maturity Date, and (iii) in the
case of the Revolving A Loans, no more than eight (8) Interest Periods in the
aggregate for the Borrowers may exist at any one time, and in the case of the
B-Loans, no more than two (2) Interest Periods in the aggregate for the
Borrowers may exist at any one time.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended (or any successor statute thereto) and the regulations thereunder.
"Inventory" means, with respect to any Person, all goods and
merchandise of such Person, including, without limitation, all raw materials,
work-in-process, packaging, supplies, materials and finished goods of every
nature used or usable in connection with the shipping, storing, advertising or
sale of such goods and merchandise, whether now owned or hereafter
19
acquired, and all such other property the sale or other disposition of which
would give rise to an Account or cash.
"Inventory Category" means a category of Inventory consisting of
raw materials or finished goods that has been established by the Administrative
Agent in its reasonable credit judgment; it being agreed and understood that
the initial Inventory Categories shall be as set forth on Schedule 1.01(B)
hereto.
"Judgment Currency" has the meaning specified therefor in Section
11.06.
"Landlord Waiver" means a letter in form and substance reasonably
acceptable to the Collateral Agent and executed by a landlord or mortgagee in
respect of Collateral of the Loan Parties located at any leased premises of the
Loan Parties, pursuant to which such landlord or mortgagee, as the case may be,
among other things, waives or subordinates any Lien such landlord or mortgagee
may have in respect of any Collateral.
"L/C Issuer" means CSFB, its successors, or such other bank as
selected by the Administrative Agent and reasonably acceptable to the
Administrative Borrower.
"Lease" means any lease of real property to which any Loan Party or
any of its Subsidiaries is a party as lessor or lessee.
"Lender" and "Lenders" have the respective meanings specified
therefor in the preamble hereto.
"Lender Register" has the meaning specified therefor in Section
12.07(d).
"Letter of Credit Accommodations" means, collectively, the letters
of credit, merchandise purchase or other guaranties issued under the Total
Revolving A Credit Commitment which are from time to time either (a) issued or
opened by the Administrative Agent for the account of any Borrower pursuant to
this Agreement, or (b) with respect to which the Administrative Agent has
agreed to indemnify the L/C Issuer or guaranteed to the L/C Issuer the
performance by any Borrower of its obligations to such L/C Issuer; sometimes
being referred to herein individually as a "Letter of Credit Accommodation".
"Letter of Credit Collateral Account" means a deposit account with
a bank reasonably acceptable to the Administrative Agent, which account shall
be under the sole dominion and control of the Collateral Agent or the
Administrative Agent and subject to a perfected, first priority security
interest in favor of the Collateral Agent or the Administrative Agent, for the
benefit of the Agents and the Lenders.
"Letter of Credit Fees" have the meaning specified therefor in
Section 3.01(b).
"Letter of Credit Obligations" means, at any time and without
duplication (i) all amounts for which the Administrative Agent may be liable
with respect to Letter of Credit Accommodations and (ii) the obligations of
Borrowers to reimburse the Administrative Agent or any Lender with respect to
Letter of Credit Accommodations.
20
"LIBOR" means, with respect to any LIBOR Loan for any Interest
Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in Dollars
(as set forth by the Bloomberg Information Service or any successor thereto or
any other service selected by the Administrative Agent which has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the "LIBOR" shall be
the interest rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in Dollars are offered for
such relevant Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such
Interest Period.
"LIBOR Loan" means a Loan bearing interest calculated based upon
the Adjusted LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge, lien (statutory
or otherwise), security interest, charge or other encumbrance or security or
preferential arrangement of any nature, including, without limitation, any
conditional sale or title retention arrangement, any Capitalized Lease and any
assignment, deposit arrangement or financing lease intended as, or having the
effect of, security.
"Loan" means a Revolving A Loan or a B-Loan.
"Loan Account" means an account maintained hereunder by the
Administrative Agent on its books of account at the Payment Office, and with
respect to the Borrowers, in which the Borrowers will be charged with all Loans
made to, and all other Obligations incurred by, the Borrowers and may include
sub-accounts for each of the Revolving A Loans and the B-Loans.
"Loan Document" means this Agreement, any Guaranty, the Fee Letter,
any Security Agreement, any Pledge Agreement, any Mortgage, any Cash Management
Agreement, any Control Agreement, any UCC Filing Authorization Letter, the
Contribution Agreement, the Intercompany Subordination Agreement and any other
agreement, promissory note, other instrument and other document executed and
delivered pursuant hereto or thereto or otherwise evidencing or securing any
Loan, any Letter of Credit Obligation or any other Obligation.
"Loan Party" means any Borrower and any Guarantor.
"Material Adverse Effect" means a material adverse effect on any of
(i) the operations, business, assets, properties, condition (financial or
otherwise) or liabilities of the Loan Parties taken as a whole, (ii) the
ability of any Loan Party to perform any of its obligations under any Loan
Document to which it is a party, (iii) the legality, validity or enforceability
of this Agreement or any other Loan Document, (iv) the rights and remedies of
any Agent or any Lender under any Loan Document, or (v) the validity,
perfection or priority of any and all Liens in favor of the Collateral Agent
for the benefit of the Agents and the Lenders on any of the
21
Collateral with an aggregate fair market value in excess of $3,000,000;
provided, that a material adverse effect on any of the items described in
clauses (i) or (ii) shall not constitute a Material Adverse Effect to the
extent it is or results directly from an Excluded Note Event.
"Material Contract" means, with respect to any Person, (i) each
contract or agreement to which such Person or any of its Subsidiaries is a
party involving aggregate annual consideration payable to or by such Person or
such Subsidiary of $1,000,000 or more (other than purchase orders in the
ordinary course of the business of such Person or such Subsidiary and other
than contracts that by their terms may be terminated by such Person or
Subsidiary in the ordinary course of its business upon less than 60 days'
notice without penalty or premium) and (ii) all other contracts or agreements
material to the business, operations, condition (financial or otherwise),
performance, properties or liabilities of such Person or any of its
Subsidiaries, taken as a whole, and, in the case of any Loan Party, of the Loan
Parties, taken as a whole.
"Milacron Assurance" means Milacron Assurance Ltd., a Bermuda
company.
"Milacron Capital" means Milacron Capital Holdings B.V., a Dutch
private company with limited liability.
"Mizuho/Glencore Transactions" means the transactions contemplated
by the Mizuho/Glencore Transaction Documents.
"Misplaced Note Holder" has the meaning specified therefor in
Section 6.01(o)(iii).
"Misplaced Notes" has the meaning specified therefor in Section
6.01(o)(iii).
"Mizuho/Glencore Transaction Documents" means the Note Purchase
Agreement, dated as of March 12, 2004, by and among Milacron Inc., Mizuho
International, plc ("Mizuho") and Glencore Finance AG ("Glencore"), the
securities to be sold by Milacron Inc. pursuant to the terms of such agreement,
the securities into which or for which such securities may be converted or
exchanged and/or further exchanged pursuant to the terms thereof and/or of such
agreement, the security documents, registration rights agreement and other
documents and instruments related thereto and the Subordination and
Intercreditor Agreement of even date herewith by and among Mizuho, Glencore,
the Administrative Borrower, and the Administrative Agent.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Mortgage" means a mortgage (including, without limitation, a
leasehold mortgage), deed of trust or deed to secure debt, in form and
substance reasonably satisfactory to the Collateral Agent, made by a Loan Party
in favor of the Collateral Agent for the benefit of the Agents and the Lenders,
securing the Obligations and delivered to the Collateral Agent pursuant to
Section 5.01(d), Section 7.01(b), Section 7.01(n) or otherwise.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Loan Party or any of its ERISA
Affiliates has contributed to, or has been obligated to contribute, at any time
during the preceding six (6) calendar years.
22
"Net Amount of Eligible Accounts" means the aggregate unpaid
invoice amount of Eligible Accounts less, without duplication, sales, excise or
similar taxes, returns, discounts, chargebacks, claims, advance payments,
credits and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed with respect to such Eligible Accounts.
"Net Cash Proceeds" means, (i) with respect to any Disposition by
any Loan Party or any of its Domestic Subsidiaries, the amount of cash received
(directly or indirectly) from time to time (whether as initial consideration or
through the payment or disposition of deferred consideration) by or on behalf
of such Person or such Subsidiary, in connection therewith after deducting
therefrom only (A) the amount of any Indebtedness secured by any Lien permitted
by Section 7.02(a) on any asset (other than Indebtedness assumed by the
purchaser of such asset) which is required to be, and is, repaid in connection
with such Disposition (other than Indebtedness under this Agreement),
(B) expenses related thereto incurred by such Person or such Subsidiary in
connection therewith, (C) transfer taxes paid (or payable within 30 days after
the consummation of such Disposition) to any taxing authorities by such Person
or such Subsidiary in connection therewith, (D) net income taxes to be paid in
connection with such Disposition (after taking into account any tax credits or
deductions and any tax sharing arrangements), (E) liabilities related to the
assets sold (and not assumed by any other Person) in an amount equal to such
Person's good faith and reasonable determination that such liabilities are
payable by such Person within 30 days after the consummation of such
Disposition, and (F) any reserves for adjustments in respect of the sale price
of such assets and for future liabilities established in accordance with GAAP,
(ii) with respect to the issuance or incurrence of any Indebtedness by any Loan
Party or any of its Domestic Subsidiaries, or the sale or issuance by any Loan
Party or any of its Domestic Subsidiaries of any shares of its Capital Stock,
the aggregate amount of cash received (directly or indirectly) from time to
time (whether as initial consideration or through the payment or disposition of
deferred consideration) by or on behalf of such Person or such Subsidiary in
connection therewith, after deducting therefrom only (A) expenses related
thereto incurred by such Person or such Subsidiary in connection therewith, (B)
transfer taxes paid (or payable within 30 days after the consummation of such
issuance or incurrence) by such Person or such Subsidiary in connection
therewith and (C) net income taxes to be paid in connection therewith (after
taking into account any tax credits or deductions and any tax sharing
arrangements), and (iii) with respect to Extraordinary Receipts received by any
Loan Party or any of its Domestic Subsidiaries, the amount of cash proceeds
received (directly or indirectly) from time to time by or on behalf of such
Loan Party or such Domestic Subsidiary after deducting therefrom only (A)
expenses related thereto incurred by such Person or such Subsidiary in
connection therewith, (B) transfer taxes paid (or payable within 30 days after
the consummation of such issuance or incurrence) by such Person or such
Subsidiary in connection therewith and (C) net income taxes to be paid in
connection therewith (after taking into account any tax credits or deductions
and any tax sharing arrangements); in each case of clauses (i), (ii) and
(iii) to the extent, but only to the extent, that the amounts so deducted are
(x) actually paid to a Person that, except in the case of out-of-pocket
expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y)
properly attributable to such transaction or to the asset that is the subject
thereof.
"Net Liquidation Percentage" means, for each Inventory Category,
the percentage of the Book Value of Eligible Inventory included in such
Inventory Category that is estimated to be recoverable in an orderly
liquidation of such Eligible Inventory, net of liquidation expenses
23
and commissions, such percentage to be as determined from time to time by the
most recent appraisal conducted by Hilco or such other appraiser reasonably
acceptable to the Collateral Agent after consulting with the Borrowers (which
appraisals by such other appraiser will be on a basis consistent with the
appraisals conducted by Hilco).
"Net Liquidation Value" means, for each Inventory Category at any
time, the Net Liquidation Percentage for such Inventory Category times the Book
Value of Eligible Inventory included in such Inventory Category at such time.
"New Lending Office" has the meaning specified therefor in Section
2.08(d).
"New Euro Securities" means notes or other unsecured and/or
subordinated Indebtedness of the Parent and/or Milacron Capital or Capital
Stock (or rights exercisable solely to acquire common Capital Stock) or
preferred Capital Stock of the Parent, or any combination thereof, issued in
connection with or resulting from a refinancing, replacement or other
restructuring of the Euro Notes and the obligations under the Euro Indenture
pursuant to a refinancing, replacement or other restructuring transaction that
complies with the following terms and conditions (to the extent applicable):
(i) the maturity date of the New Euro Securities occurs on a date after the
Final Maturity Date, (ii) prior to the Final Maturity Date, no Liens or
security interests on the assets or properties of the Parent or any of its
Subsidiaries are granted to the holders of the New Euro Securities, (iii) prior
to the Final Maturity Date, any guaranty of the New Euro Securities is pursuant
to an Acceptable Guaranty, (iv) the principal amount or the aggregate stated
value of the New Euro Securities, issued in exchange for, or resulting from the
amendment, restatement, modification or refinancing of, the Euro Notes or the
Euro Indenture, will not exceed the principal amount of the Euro Notes
outstanding immediately prior to the refinancing, replacement or other
restructuring of the Euro Notes plus any accrued interest on such Euro Notes,
(v) any interest, dividends or other payments (other than a demand for payment
as a result of an acceleration) due on or prior to the Final Maturity Date will
either (x) not be payable in cash on or prior to the Final Maturity Date or (y)
be payable in cash, and, if payable in cash only if, before and after giving
effect thereto, Excess Availability exceeds Required Availability, and (vi) the
additional terms and conditions (other than as set forth in clauses (i) through
(v) above) applicable prior to the Final Maturity Date, taken as a whole, under
the New Euro Securities are not materially less favorable to the Lenders than
the terms and conditions of the Euro Notes or the Euro Indenture or such
additional terms and conditions are otherwise reasonable acceptable to the
Administrative Agent.
"New US Securities" means the convertible debt and the equity
securities contemplated by the Mizuho/Glencore Transactions.
"Non-Core Assets" means the Designated Business and the Designated
Real Property.
"Non-U.S. Lender" has the meaning specified therefor in Section
2.08(d).
"Note Restructuring Transaction" means any Mizuho/Glencore
Transaction or a Euro Note Restructuring Transaction.
"Notice of Borrowing" has the meaning specified therefor in Section
2.02(a).
24
"Notice of Conversion/Continuation" has the meaning specified
therefor in Section 2.11(e).
"Obligation Currency" has the meaning specified therefor in Section
11.06.
"Obligations" means all present and future indebtedness,
obligations, and liabilities of each Loan Party to the Agents and the Lenders,
whether or not the right of payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured, unsecured, and whether or not such claim
is discharged, stayed or otherwise affected by any proceeding referred to in
Section 9.01, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letter of Credit Accommodations, or any
other document, made, delivered or given in connection herewith or therewith.
Without limiting the generality of the foregoing, the Obligations of each Loan
Party under the Loan Documents include (a) the obligation to pay principal,
interest (including, without limitation, all interest that accrues after the
commencement of any Insolvency Proceeding of any Loan Party, whether or not a
claim for post-filing interest is allowed in such proceeding), charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by such Person under the Loan Documents, and (b) the obligation
of such Person to reimburse any amount in respect of any of the foregoing that
the Agents or any Lender (in its sole discretion) may elect to pay or advance
on behalf of such Person.
"Operating Lease Obligations" means all obligations for the payment
of rent for any real or personal property under leases or agreements to lease,
other than Capitalized Lease Obligations.
"Other Taxes" has the meaning specified therefor in Section
2.08(b).
"Paid in Full" means (i) the Total Commitments shall have been
terminated, (ii) all principal of the Loans, interest thereon and all other
Obligations shall have been paid in full in cash (other than contingent
obligations or indemnification obligations for which no claim has been
asserted), and (iii) the Administrative Agent shall have received cash
collateral (or, at the Administrative Agent's option, a letter of credit issued
for the account of the relevant Borrower and at such Borrower's expense in form
and substance reasonably satisfactory to the Administrative Agent, by an issuer
reasonably acceptable to the Administrative Agent and payable to the
Administrative Agent as beneficiary) in such amounts as the Administrative
Agent determines are reasonably necessary to secure the Administrative Agent
and the Lenders from loss, cost, damage or expense, including reasonable
attorneys' fees and expenses, in connection with outstanding Letter of Credit
Accommodations and checks, remittances or other similar payments provisionally
credited to the Obligations and/or as to which the Administrative Agent or any
Lender has not yet received final payment in full and in cash. All Letter of
Credit Accommodations shall be cash collateralized (or supported by a letter of
credit as described in the preceding sentence) by an amount equal to one
hundred five percent (105%) of the amount of the Letter of Credit
Accommodations then existing.
"Parent" has the meaning specified therefor in the preamble hereto.
25
"Participant Register" has the meaning specified therefor in
Section 12.07(b)(v).
"Payment Office" means the Administrative Agent's office located at
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other office or offices
of the Administrative Agent as may be designated in writing from time to time
by the Administrative Agent to the Administrative Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Holder" means (i) any employee stock ownership plan or
other employee benefit plan of the Parent and (ii) each officer and director of
the Parent as of the Effective Date and their spouses and lineal descendants.
"Permitted Indebtedness" means:
(a) any Indebtedness owing to any of the Agents or Lenders under
this Agreement and the other Loan Documents;
(b) any other Indebtedness listed on Schedule 7.02(b), and the
extension of maturity, refinancing or modification of the terms thereof;
provided, however, that (i) such extension, refinancing or modification is
pursuant to terms that, taken as a whole, are not less favorable to the Loan
Parties and the Lenders than the terms of the Indebtedness being extended,
refinanced or modified or are otherwise reasonably satisfactory to the Agents
and (ii) after giving effect to such extension, refinancing or modification,
the amount of such Indebtedness is not greater than the amount of Indebtedness
outstanding immediately prior to such extension, refinancing or modification;
(c) Indebtedness evidenced by Capitalized Lease Obligations
entered into in order to finance Capital Expenditures made by the Loan Parties
in accordance with the provisions of Section 7.02(g), which Indebtedness, when
aggregated with the principal amount of all Indebtedness incurred under this
clause (c) and clause (d) of this definition, does not exceed $3,000,000 at any
time outstanding;
(d) Indebtedness secured by a Lien permitted by clause (e) of the
definition of "Permitted Lien";
(e) Indebtedness permitted under Section 7.02(e);
(f) Indebtedness arising out of or in connection with the
Mizuho/Glencore Transaction Documents;
(g) Indebtedness evidenced by the Euro Notes, and the extension
of maturity, refinancing or modification of the terms thereof to the extent
such extension, refinancing or modification is pursuant to the Euro Note
Restructuring Transaction;
(h) Acceptable Guaranties in respect of the Indebtedness (if any)
evidenced by the New US Securities or the New Euro Securities;
26
(i) Indebtedness of the Foreign Subsidiaries under any financing,
factoring or similar arrangements under non-U.S. law, (but not including
Indebtedness of the Foreign Subsidiaries permitted under clause (o) of this
definition) the aggregate outstanding principal amount not at any time
exceeding $20,000,000 and the extension of maturity, refinancing or
modification of the terms thereof; provided however, that the terms and
conditions of such arrangements, taken as a whole, are not less favorable to
the Loan Parties and the Lenders than the terms and conditions of such
Indebtedness existing on the Effective Date, or are otherwise reasonably
acceptable to the Administrative Agent and the Required Lenders; and
(j) the following intercompany Indebtedness: (i) Indebtedness of
any Domestic Loan Party to any other Domestic Loan Party, to the extent such
Indebtedness is (A) evidenced by a promissory note with terms and provisions
reasonably acceptable to the Collateral Agent, (B) promptly pledged to the
Collateral Agent pursuant to the Pledge Agreement, and (C) subject to an
Intercompany Subordination Agreement or such other subordination provisions
acceptable to the Collateral Agent; (ii) Indebtedness of any Foreign Subsidiary
of Milacron Capital to any other Foreign Subsidiary of Milacron Capital; (iii)
Indebtedness of any Foreign Subsidiary (other than any Subsidiary of Milacron
Capital) to any other Foreign Subsidiary (other than any Subsidiary of Milacron
Capital); (iv) Indebtedness of any Domestic Subsidiary that is not a Loan Party
to any other Domestic Subsidiary that is not a Loan Party to the extent that
the aggregate principal amount of such Indebtedness outstanding at any time
does not exceed $250,000; (v) unsecured Indebtedness of any Loan Party owing to
any Foreign Subsidiary resulting from loans or advances made by a Foreign
Subsidiary to a Loan Party, to the extent such Indebtedness is subject to an
Intercompany Subordination Agreement or such other subordination provisions
acceptable to the Collateral Agent; (vi) unsecured Indebtedness of the Parent
owing to Milacron Assurance in connection with the self-insurance program of
the Parent and its Subsidiaries to the extent such Indebtedness (A) is
evidenced by a promissory note with terms and provisions reasonably acceptable
to the Collateral Agent, (B) is subject to an Intercompany Subordination
Agreement or such other subordination provisions acceptable to the Collateral
Agent, (C) will not be repaid in amounts in excess of the amounts necessary to
pay the obligations of Milacron Assurance under the self-insurance program for
the benefit of the Parent and the Subsidiaries permitted under Section 7.01(h)
and (D) to the extent repaid by the Parent to Milacron Assurance for Milacron
Assurance to make available to a Foreign Subsidiary in respect of such self-
insurance program, will result, prior to or concurrently with such repayment,
in Foreign Subsidiaries remitting, transferring or otherwise repatriating funds
to a Loan Party in an aggregate US dollar amount equal to the amount repaid by
the Parent for such purpose (the "Foreign Insurance Repayment"); and (vii)
Indebtedness of any Foreign Subsidiary owing to any Loan Party existing as of
the Effective Date (but not the increase, extension of maturity, refinancing or
other modification thereof), which, on the Effective Date, the aggregate
outstanding principal amount is equal to approximately $11,000,000;
(k) (i) Indebtedness incurred by any Loan Party under Hedging
Agreements provided by any Agent, any Lender or any Affiliate of any Agent or
any Lender entered into the ordinary course of financial management and not for
speculative purposes; provided, however, that not more than $2,000,000 of such
Indebtedness may be secured by the Current Asset Collateral if and to the
extent permitted under the Euro Note Indenture and (ii) Indebtedness incurred
by any Loan Party under Hedging Agreements entered into the ordinary course of
financial management and not for speculative purposes;
27
(l) Indebtedness arising from judgments, orders or other awards
to the extent not constituting an Event of Default;
(m) Contingent Obligations to the extent the "primary
obligations" of the "primary obligor" are not prohibited by this Agreement or
any other Loan Agreement, but excluding Contingent Obligations with respect to
the Euro Notes or the New US Securities or New Euro Securities;
(n) letters of credit that are set forth on Schedule 7.02(b)
issued under the Existing Credit Facility;
(o) unsecured Indebtedness in respect of customer financing
programs (including lease transactions) in an aggregate principal amount
outstanding not at any time exceeding $15,000,000; and
(p) Indebtedness evidenced by the Securities.
"Permitted Investments" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case, maturing within six months from the date of acquisition
thereof; (ii) commercial paper, maturing not more than 270 days after the date
of issue rated P-1 by Moody's or A-1 by Standard & Poor's; (iii) certificates
of deposit maturing not more than 270 days after the date of issue, issued by
commercial banking institutions and money market or demand deposit accounts
maintained at commercial banking institutions, each of which is a member of the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000; (iv) repurchase agreements having
maturities of not more than 90 days from the date of acquisition which are
entered into with major money center banks included in the commercial banking
institutions described in clause (iii) above and which are secured by readily
marketable direct obligations of the United States Government or any agency
thereof, (v) money market accounts maintained with mutual funds having assets
in excess of $2,500,000,000; and (vi) tax exempt securities rated A or higher
by Moody's or A+ or higher by Standard & Poor's.
"Permitted Liens" means:
(a) Liens securing the Obligations;
(b) Liens for taxes, assessments and governmental charges the
payment of which is not required under Section 7.01(c);
(c) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's and other similar Liens arising in the ordinary
course of business and securing obligations (other than Indebtedness for
borrowed money) that are not overdue by more than 30 days or are being
contested in good faith and by appropriate proceedings promptly initiated and
diligently conducted, and a reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
28
(d) Liens described on Schedule 7.02(a), and the extension of
maturity, refinancing or other modification of the terms thereof, but not the
extension of coverage thereof to other property or the extension, refinancing
or other modification of the terms thereof to increase the amount of the
Indebtedness secured thereby;
(e) (i) purchase money Liens (including precautionary Lien
filings made under the Uniform Commercial Code of any jurisdiction) on
equipment acquired or held by any Loan Party or any of its Subsidiaries in the
ordinary course of its business to secure the purchase price of such equipment
or Indebtedness incurred solely for the purpose of financing the acquisition of
such equipment or (ii) Liens existing on such equipment at the time of its
acquisition; provided, however, that (A) no such Lien shall extend to or cover
any other property of any Loan Party or any of its Subsidiaries, and (B) the
aggregate principal amount of Indebtedness secured by any or all such Liens
shall not exceed at any one time outstanding $1,000,000;
(f) deposits and pledges of cash securing (i) obligations
incurred in respect of workers' compensation, unemployment insurance,
automobile liability or other forms of governmental insurance or benefits,
(ii) the performance of bids, tenders, leases, contracts (other than for the
payment of money) and statutory obligations, (iii) obligations on surety or
appeal bonds, but only to the extent such deposits or pledges are made or
otherwise arise in the ordinary course of business and secure obligations not
past due, (iv) the letters of credit permitted under clause (n) of the
definition of Permitted Indebtedness, or (v) obligations to suppliers and
service providers (including lessors in respect of operating leases) of the
Loan Parties made in the ordinary course of business and securing obligations
not past due, to the extent the aggregate amount of such cash deposited or
pledged at any time does not exceed $2,500,000;
(g) (i) easements, zoning restrictions, rights of way, survey
exceptions, leases and subleases and similar encumbrances on real property and
minor irregularities in the title thereto that do not (x) secure obligations
for the payment of money or (y) materially impair the value of such property or
its use by any Loan Party or any of its Subsidiaries in the normal conduct of
such Person's business, and any other Lien described in a Title Insurance
Policy with respect to any real property subject to a Mortgage and (ii) Liens
limited to the real property subject to a Lease of any Loan Party affecting the
interest of the landlord of any such Lease (and any underlying landlord in the
case of a ground lease);
(h) Liens securing Indebtedness permitted by subsection (c) of
the definition of Permitted Indebtedness, and Liens securing Hedging Agreements
permitted by subsection (k) of the definition of Permitted Indebtedness, to the
extent permitted therein, to the extent such Hedging Agreements are with an
Agent, a Lender or any Affiliates of the foregoing;
(i) Liens of landlords arising under real property Leases to the
extent (x) the real property subject to such Liens is subject to a Landlord
Waiver to the extent required pursuant to Section 7.01(m), and (y) such Liens
arise in the ordinary course of business and do not serve and do not secure any
past due obligation for the payment of money;
(j) bankers' Liens with respect to depository account
arrangements entered into in the ordinary course of business securing
obligations not past due;
29
(k) Liens in favor of any Loan Party in the assets or property of
a Subsidiary of the Parent that is not a Loan Party;
(l) Liens arising from judgments, orders, or other awards not
constituting an Event of Default;
(m) Liens constituting precautionary Lien filings made under the
Uniform Commercial Code of any jurisdiction by PNC Bank, National Association,
pursuant to the Purchase Agreement, dated as of September 24, 1999, between PNC
Bank, National Association, and the Parent;
(n) Liens of the L/C Issuer required to be granted in connection
with Letter of Credit Accommodations;
(o) Liens securing indebtedness permitted by subsection (f) or
(p) of the definition of Permitted Indebtedness;
(p) other Liens of the Loan Parties securing obligations not
exceeding $500,000, provided, that, to the extent that such Liens are
consensual, such Liens are not on any Accounts or Inventory of any Loan Party
or on any Capital Stock or other instruments pledged under the Pledge
Agreement; and
(q) to the extent not included in clause (c) above, solely with
respect to Eligible Accounts or Eligible Inventory owned by a Canadian
Borrowing Base Guarantor, Prior Claims that are unregistered and secure amounts
that are not yet due and payable
"Person" means an individual, corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization, joint venture or other enterprise or entity or Governmental
Authority.
"Plan" means any Employee Plan or Multiemployer Plan.
"Pledge Agreement" means (i) a Pledge and Security Agreement made
by a Loan Party in favor of the Collateral Agent for the benefit of the Agents
and the Lenders, substantially in the form of Exhibit C, securing the
Obligations and delivered to the Collateral Agent and (ii) any pledge agreement
or similar agreement or instrument made by a Loan Party in favor of the
Collateral Agent for the benefit of the Agents and the Lenders providing for
the pledge of the Capital Stock of any Foreign Subsidiary in accordance with
the requirements of law of a foreign jurisdiction.
"Post-Default Rate" means a rate of interest per annum equal to the
rate of interest otherwise in effect from time to time pursuant to the terms of
this Agreement plus 2.0%, or, if a rate of interest is not otherwise in effect,
the greater of (i) the Reference Rate plus 10.0% and (ii) 14.0%.
"Prior Financing Agreement" has the meaning specified therefor in
the recitals hereto.
30
"Prior Claims" means all liens created by applicable law (in
contrast with liens voluntarily granted) which rank or are capable of ranking
prior or pari passu with the Collateral Agent's security interests (or similar
liens under applicable laws), against all or part of the assets of a Canadian
Borrowing Base Guarantor, including for amounts owing for vacation pay,
employee source deductions and contributions, goods and services taxes, sales
taxes, harmonized sales taxes, Quebec corporate income taxes, municipal taxes,
workers' compensation, pension plan or fund obligations and overdue rents.
"Pro Rata Share" means:
(a) with respect to a Lender's obligation to make Revolving A
Loans and receive payments of interest, fees, and principal with respect
thereto, the percentage obtained by dividing (i) such Lender's Revolving A
Credit Commitment, by (ii) the Total Revolving A Credit Commitment, provided,
that, if the Total Revolving A Credit Commitment has been reduced to zero, the
numerator shall be the aggregate unpaid principal amount of such Lender's
Revolving A Loans (including Agent Advances) and its interest in the Letter of
Credit Obligations and the denominator shall be the aggregate unpaid principal
amount of all Revolving A Loans (including Agent Advances) and Letter of Credit
Obligations,
(b) with respect to a Lender's obligation to make B-Loans and
receive payments of interest, fees, and principal with respect thereto, the
percentage obtained by dividing (i) such Lender's B-Commitment, by (ii) the
Total B-Commitment, provided, that, if the Total B-Commitment has been reduced
to zero, the numerator shall be the aggregate unpaid principal amount of such
Lender's B-Loans and the denominator shall be the aggregate unpaid principal
amount of all B-Loans, and
(c) with respect to all other matters (including, without
limitation, the indemnification obligations arising under Section 10.05), the
percentage obtained by dividing (i) the sum of such Lender's Revolving A Credit
Commitment and B-Commitment, by (ii) the sum of the Total Revolving A Credit
Commitment and Total B-Commitment, provided, that, if any of such Lender's
Revolving A Credit Commitment or B-Commitment shall have been reduced to zero,
such Lender's Revolving A Credit Commitment or B-Commitment, as the case may
be, shall be deemed to be the aggregate unpaid principal amount of such
Lender's Revolving A Loans or B-Loans, as the case may be (including Agent
Advances) and its interest in the Letter of Credit Obligations and if any of
the Total Revolving A Credit Commitment or Total B-Commitment shall have been
reduced to zero, the Total Revolving A Credit Commitment or Total B-Commitment,
as the case may be, shall be deemed to be the aggregate unpaid principal amount
of all Revolving A Loans (including Agent Advances) and Letter of Credit
Obligations or B-Loans.
"Rating Agencies" has the meaning specified therefor in Section
2.07.
"Receivables" means all of the following now owned or hereafter
arising or acquired property of each Loan Party: (i) all Accounts; (ii) all
interest, fees, late charges, penalties, collection fees and other amounts due
or to become due or otherwise payable in connection with any Account; (iii) all
payment intangibles of such Loan Party; (iv) letters of credit, indemnities,
guarantees, security or other deposits and proceeds thereof issued payable to
31
any Loan Party or otherwise in favor of or delivered to any Loan Party in
connection with any Account; or (v) all other accounts, contract rights,
chattel paper, instruments, notes, general intangibles and other forms of
obligations owing to any Loan Party, whether from the sale and lease of goods
or other property, licensing of any property (including intellectual property
or other general intangibles), rendition of services or from loans or advances
by any Loan Party or to or for the benefit of any third person (including loans
or advances to any Affiliates or Subsidiaries of any Loan Party) or otherwise
associated with any Accounts, Inventory or general intangibles of any Loan
Party (including, without limitation, chooses in action, causes of action, tax
refunds, tax refund claims, any funds which may become payable to any Loan
Party in connection with the termination of any Plan or other employee benefit
plan and any other amounts payable to any Loan Party from any Plan or other
employee benefit plan, rights and claims against carriers and shippers, rights
to indemnification, business interruption insurance and proceeds thereof,
casualty or any similar types of insurance and any proceeds thereof and
proceeds of insurance covering the lives of employees on which any Loan Party
is a beneficiary).
"Reference Rate" means the rate of interest publicly announced by
CSFB in New York, New York from time to time as its reference rate, base rate
or prime rate. The reference rate, base rate or prime rate is determined from
time to time by CSFB as a means of pricing some loans to its borrowers and
neither is tied to any external rate of interest or index nor necessarily
reflects the lowest rate of interest actually charged by CSFB to any particular
class or category of customers. Each change in the Reference Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Reference Rate Loan" means a Loan bearing interest based upon the
Reference Rate.
"Register" has the meaning specified therefor in Section
12.07(b)(ii).
"Registered Loan" has the meaning specified therefor in Section
12.07(b)(ii).
"Regulation T", "Regulation U" and "Regulation X" mean,
respectively, Regulations T, U and X of the Board or any successor, as the same
may be amended or supplemented from time to time.
"Related Lender Assignment" means an assignment by a Lender to an
Affiliate of such Lender or an Approved Fund with respect to such Lender of all
or a portion of its rights and obligations under the Loan Documents.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, trustees,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, seeping, migrating,
dumping or disposing of any Hazardous Material (including the abandonment or
discarding of barrels, containers and other closed receptacles containing any
Hazardous Material) into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through or in the ambient air,
soil or surface or ground water.
32
"Remedial Action" means all actions taken pursuant to Environmental
Laws to (i) clean up, remove, remediate, contain, treat, monitor, assess,
evaluate or in any other way address Hazardous Materials in the indoor or
outdoor environment; (ii) prevent or minimize a Release or threatened Release
of Hazardous Materials so they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment; (iii)
perform pre-remedial studies and investigations and post-remedial operation and
maintenance activities; or (iv) perform any other actions authorized by
42 U.S.C. {section} 9601.
"Reportable Event" means an event described in Section 4043 of
ERISA (other than an event for which notice to the PBGC is waived under the
regulations promulgated under such Section).
"Required A Lenders" means the Revolving A Lenders whose Pro Rata
Share (as defined under clause (a) of such definition) of the Revolving A
Credit Commitments aggregate more than 50%.
"Required Availability" means an amount equal to $25,000,000.
"Required B Lenders" means the B-Lenders whose Pro Rata Share (as
defined under clause (b) of such definition) of the B-Commitments aggregate
more than 50%.
"Required Lenders" means the Required A Lenders and the Required B
Lenders.
"Reserve Percentage" means, on any day, for any Lender, the maximum
percentage prescribed by the Board (or any successor Governmental Authority)
for determining the reserve requirements (including any basic, supplemental,
marginal, or emergency reserves) that are in effect on such date with respect
to eurocurrency funding (currently referred to as "eurocurrency liabilities")
of that Lender, but so long as such Lender is not required or directed under
applicable regulations to maintain such reserves, the Reserve Percentage shall
be zero.
"Reserves" means as of any date of determination, such amounts as
the Administrative Agent may from time to time establish and revise in its
reasonable credit judgment reducing the amount of Revolving A Loans and Letter
of Credit Accommodations which would otherwise be available to the Borrowers
under the lending formule(s) provided for herein: (a) to reflect events,
conditions, contingencies or risks which, as determined by the Administrative
Agent in its reasonable credit judgment, adversely affect, or have a reasonable
likelihood of adversely affecting, either (i) the Collateral or any other
property which is security for the Obligations or its value, (ii) the assets or
business of any Loan Party or (iii) the security interests and other rights of
the Agents and the Lenders in the Collateral (including the enforceability,
perfection and priority (including, without limitation, in respect of any Liens
(including Prior Claims), whether or not permitted by Section 8.03, which may
have priority over the Liens securing the Obligations) thereof), (b) to reflect
the Administrative Agent's reasonable belief that any collateral report or
financial information furnished by or on behalf of any Borrower to the
Administrative Agent is incomplete, inaccurate or misleading in any material
respect, (c) if the dilution with respect to the Accounts for any period has
increased or may be reasonably anticipated to increase above historical levels,
or (d) in respect of unpaid medical claims associated with the Borrowers' self-
insurance program in excess of historical
33
amounts. To the extent the Administrative Agent may establish new criteria or
revise existing criteria for Eligible Accounts or Eligible Inventory so as to
address any circumstances, condition, event or contingency in a manner
reasonably satisfactory to the Administrative Agent, the Administrative Agent
shall not establish a Reserve for the same purpose. The amount of any Reserve
established by the Administrative Agent shall have a reasonable relationship
to the event, condition or other matter which is the basis for such reserve as
determined by the Administrative Agent in its reasonable credit judgment and
shall promptly be reduced or eliminated to the extent such event, condition or
other matter no longer reasonably justifies such reserve. Without limiting the
foregoing, the Administrative Agent shall be entitled to establish reserves in
accordance with Section 2.05(f).
"Revolving A Credit Commitment" means, with respect to each Lender,
the commitment of such Lender to make Revolving A Loans to the Borrowers in the
amount set forth opposite such Lender's name in Schedule 1.01(A) hereto, as
such amount may be terminated or reduced from time to time in accordance with
the terms of this Agreement.
"Revolving A Loan" means a loan made by a Lender to the Borrowers
pursuant to Section 2.01(a)(i).
"Revolving A Lender" means a Lender with a Revolving A Credit
Commitment, a Revolving A Loan or a Letter of Credit Obligation.
"SEC" means the Securities and Exchange Commission or any other
similar or successor agency of the Federal government administering the
Securities Act.
"Securities" has the meaning specified in Section 5.01(l).
"Securities Account" means any securities account or other
investment account of a Loan Party.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time.
"Securitization" has the meaning specified therefor in Section
2.07.
"Security Agreement" means a Security Agreement made by a Loan
Party in favor of the Collateral Agent for the benefit of the Agents and the
Lenders, substantially in the form of Exhibit B, securing the Obligations and
delivered to the Collateral Agent.
"Settlement Period" has the meaning specified therefor in Section
3.04(b) hereof.
"Spot Rate" means, with respect to Dollars or Canadian Dollars, as
the case may be, the rate quoted by Credit Suisse First Boston as the spot rate
for the purchase by Credit Suisse First Boston of Dollars with Canadian Dollars
or other currency or for the purchase by Credit Suisse First Boston of Canadian
Dollars with Dollars or other currency (as the context may require) at
approximately 10:00 A.M. (New York City time) on the date two (2) Business Days
prior to the date as of which the foreign exchange computation is made.
34
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Stockholder Approval" has the meaning specified in the
Mizuho/Glencore Transaction Documents.
"Subordination and Intercreditor Agreement" means that certain
Amended and Restated Subordination and Intercreditor Agreement dated as of
March 31, 2004 by and among the Administrative Agent, Mizuho, Glencore, the
Administrative Borrower, and Milacron Capital Holdings B.V.
"Subsidiary" means, with respect to any Person at any date, any
corporation, limited or general partnership, limited liability company, trust,
estate, association, joint venture or other business entity (i) the accounts of
which would be consolidated with those of such Person in such Person's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP or (ii) of which more than 50% of (A) the outstanding
Capital Stock having (in the absence of contingencies) ordinary voting power to
elect a majority of the board of directors or other managing body of such
Person, (B) in the case of a partnership or limited liability company, the
interest in the capital or profits of such partnership or limited liability
company or (C) in the case of a trust, estate, association, joint venture or
other entity, the beneficial interest in such trust, estate, association or
other entity business is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such Person.
"Taxes" has the meaning specified therefor in Section 2.08(a).
"Termination Event" means (i) a Reportable Event with respect to
any Employee Plan, (ii) any event that causes any Loan Party or any of its
ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of
the Internal Revenue Code, (iii) the filing of a notice of intent to terminate
an Employee Plan or the treatment of an Employee Plan amendment as a
termination under Section 4041 of ERISA, (iv) the institution of proceedings by
the PBGC to terminate an Employee Plan, or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Employee Plan.
"Title Insurance Policy" means a mortgagee's loan policy, in form
and substance satisfactory to the Collateral Agent, together with all
endorsements made from time to time thereto, issued by or on behalf of First
American Title Insurance Company, insuring the Lien created by a Mortgage in an
amount and on terms reasonably satisfactory to the Collateral Agent, delivered
to the Collateral Agent.
"Transferee" has the meaning specified therefor in Section 2.08(a).
"Total Revolving A Credit Commitment" means the sum of the amounts
of the Lenders' Revolving A Credit Commitments.
35
"Total B-Commitment" means the sum of the amounts of the Lenders'
B-Commitments.
"Total Commitment" means the sum of the Total Revolving A Credit
Commitment and the Total B-Commitment.
"UCC Filing Authorization Letter" means a letter duly executed by
each Loan Party authorizing the Collateral Agent to file appropriate financing
statements on Form UCC without the signature of such Loan Party in such office
or offices as may be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by each
Security Agreement, each Pledge Agreement and each Mortgage.
"Uniform Commercial Code" has the meaning specified therefor in
Section 1.03.
"Unused Line Fee" has the meaning specified therefor in Section
2.06(b).
"WARN" has the meaning specified therefor in Section 6.01(y).
Section 1.02 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise, (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any right or interest in or
to assets and properties of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible. References in this Agreement to
"determination" by any Agent include good faith estimates by such Agent (in
the case of quantitative determinations) and good faith beliefs by such Agent
(in the case of qualitative determinations).
Section 1.03 Accounting and Other Terms. Unless otherwise expressly
provided herein, each accounting term used herein shall have the meaning given
it under GAAP applied on a basis consistent with those used in preparing the
Financial Statements. All terms used in this Agreement which are defined in
Article 8 or Article 9 of the Uniform Commercial Code as in effect from time
to time in the State of New York (the "Uniform Commercial Code") and which are
not otherwise defined herein shall have the same meanings herein as set forth
therein, provided that terms used herein which are defined in the Uniform
Commercial Code as in effect in the State of New York on the date hereof shall
continue to have the same meaning
37
notwithstanding any replacement or amendment of such statute except as the
Agents may otherwise determine.
Section 1.04 Time References. Unless otherwise indicated herein, all
references to time of day refer to Eastern Standard Time or Eastern daylight
saving time, as in effect in New York City on such day. For purposes of the
computation of a period of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding"; provided, however, that with respect to
a computation of fees or interest payable to any Agent, any Lender or the L/C
Issuer, such period shall in any event consist of at least one full day.
ARTICLE II.
THE LOANS
Section 2.01 Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth:
(i) each Revolving A Lender severally agrees to make
Revolving A Loans to the Borrowers at any time and from time to time from the
Effective Date to the Final Maturity Date, or until the earlier reduction of
its Revolving A Credit Commitment to zero in accordance with the terms hereof,
in an aggregate principal amount of Revolving A Loans at any time outstanding
not to exceed the amount of such Lender's Revolving A Credit Commitment; and
(ii) each B-Lender severally agrees to make a B-Loans to the
Borrowers on the Effective Date in the amount of such Lender's B-Commitment.
(b) Notwithstanding the foregoing:
(i) The aggregate principal amount of the Revolving A Loans
outstanding at any time to the Borrowers shall not exceed the difference
between (A) the lesser of (x) the Total Revolving A Credit Commitment and
(y) the then current Borrowing Base and (B) the aggregate Letter of Credit
Obligations.
(ii) Any principal amount of the B-Loans which is repaid or
prepaid may not be reborrowed. Upon funding of the B-Loans, the B-Commitment
of each B-Lender shall automatically and permanently be reduced to zero on the
Effective Date.
(iii) [Reserved]
(iv) The Revolving A Credit Commitment shall automatically
and permanently be reduced to zero on the Final Maturity Date. Within the
foregoing limits, the Borrowers may borrow, repay and reborrow the Revolving A
Loans, on or after the Effective Date and prior to the Final Maturity Date,
subject to the terms, provisions and limitations set forth herein.
38
(c) The Lenders shall have no obligation to make any Loans if,
either immediately before or after giving effect to such Loans, the aggregate
amount of the Loans plus the Letter of Credit Obligations exceeds or will
exceed the amount of Indebtedness permitted to be incurred under the Euro
Indenture (the amount of any such excess is hereafter referred to as the
"Indenture Deficit"), if such Indenture is in effect.
Section 2.02 Making the Loans. (a) The Administrative Borrower shall
give the Administrative Agent prior telephonic notice (promptly confirmed in
writing, in substantially the form of Exhibit D hereto (a "Notice of
Borrowing")), not later than (i) in the case of a borrowing consisting of
Reference Rate Loans, 12:00 noon (New York City time) on the borrowing date of
the proposed Reference Rate Loan and (ii) in the case of a borrowing
consisting of LIBOR Loans, 12:00 noon (New York City time) on the date that is
three Business Days prior to the proposed borrowing). Such Notice of Borrowing
shall be irrevocable and shall specify (i) the principal amount of the
proposed Loan, (ii) whether such Loan is requested to be a Reference Rate Loan
or a LIBOR Loan and, in the case of a LIBOR Loan, the initial Interest Period
with respect thereto, (iii) the proposed borrowing date, which must be a
Business Day, and (iv) whether such Loan is requested to be a Revolving A Loan
or a B-Loan. The Administrative Agent and the Lenders may act without
liability upon the basis of written, telecopied or telephonic notice believed
by the Administrative Agent in good faith to be from the Administrative
Borrower (or from any Authorized Officer thereof designated in writing
purportedly from the Administrative Borrower to the Administrative Agent).
Each Borrower hereby waives the right to dispute the Administrative Agent's
record of the terms of any such telephonic Notice of Borrowing absent manifest
error. The Administrative Agent and each Lender shall be entitled to rely
conclusively on any Authorized Officer's authority to request a Loan on behalf
of the Borrowers until the Administrative Agent receives written notice to the
contrary. The Administrative Agent and the Lenders shall have no duty to
verify the authenticity of the signature appearing on any written Notice of
Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall
be irrevocable and the Borrowers shall be bound to make a borrowing in
accordance therewith. Each Revolving A Loan that is a LIBOR Loan shall be made
in a minimum amount of $1,000,000 and in integral multiples of $500,000 in
excess thereof; it being agreed and understood that no such minimum amounts
shall apply with respect to Revolving A Loans that are Reference Rate Loans.
Each B-Loan shall be made in a minimum amount of $2,500,000.
Section 2.03 Repayment of Loans; Evidence of Debt. (a) The outstanding
principal of all Loans shall be due and payable on the Final Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrowers to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the
38
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrowers shall execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) in a form furnished by the
Collateral Agent and reasonably acceptable to the Administrative Borrower.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 12.07) be
represented by one or more promissory notes in such form payable to the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
Section 2.04 Interest.
(a) Loans.
(i) Subject to the terms of this Agreement, at the option
of the Borrowers, each Revolving A Loan will either be a LIBOR Loan or a
Reference Rate Loan. Each Revolving A Loan that is a LIBOR Loan shall bear
interest on the principal amount thereof from time to time outstanding from the
date of such Loan until such principal amount becomes due, at a rate per annum
equal to the greater of (A) the Adjusted LIBOR Rate for the Interest Period in
effect for such Revolving A Loan plus 3.25% and (B) 4.75%. Each Revolving A
Loan which is a Reference Rate Loan shall bear interest on the principal amount
thereof from time to time outstanding, from the date of such Loan until such
principal amount becomes due, at a rate per annum equal to the greater of (x)
the Reference Rate plus 1.50% and (y) 5.5%.
(ii) Subject to the terms of this Agreement, at the option
of the Borrowers, each B-Loan will either be a LIBOR Loan or a Reference Rate
Loan. Each B-Loan that is a LIBOR Loan shall bear interest on the principal
amount thereof from time to time outstanding from the date of such Loan until
such principal amount becomes due, at a rate per annum equal to the greater of
(A) the Adjusted LIBOR Rate for the Interest Period in effect for such B-Loan
plus 10.5% and (B) 12.0%. Each B-Loan which is a Reference Rate Loan shall
bear interest on the principal amount thereof from time to time outstanding,
from the date of such Loan until such principal amount becomes due, at a rate
per annum equal to the greater of (x) the Reference Rate plus 8.0% and (y)
12.0%.
(b) Default Interest. To the extent permitted by law, upon the
occurrence and during the continuance of an Event of Default, the principal of,
and all accrued and unpaid interest on, all Loans, fees, indemnities or any
other Obligations of the Loan Parties under this Agreement and the other Loan
Documents, shall bear interest, from the date such Event of
39
Default occurred until the date such Event of Default is cured or waived in
writing in accordance herewith, at a rate per annum equal at all times to the
Post-Default Rate.
(c) Interest Payment. Interest on each Loan shall be payable
monthly, in arrears, on the first day of each month, commencing on the first
day of the month following the month in which such Loan is made and at maturity
(whether upon demand, by acceleration or otherwise). Interest at the Post-
Default Rate shall be payable on demand. Each Borrower hereby authorizes the
Administrative Agent to, and the Administrative Agent may, from time to time,
charge the Loan Account pursuant to Section 4.02 with the amount of any
interest payment due hereunder.
(d) General. All interest shall be computed on the basis of a
year of 360 days for the actual number of days, including the first day but
excluding the last day, elapsed.
Section 2.05 Reduction of Commitment; Prepayment of Loans.
(a) Reduction of Commitments.
(i) The Total Revolving A Credit Commitment shall terminate
on the Final Maturity Date. The Borrowers may, without premium or penalty,
reduce the Total Revolving A Credit Commitment to an amount (which may be zero)
not less than the sum of (I) the aggregate unpaid principal amount of all
Revolving A Loans then outstanding, (II) the aggregate principal amount of all
Revolving A Loans not yet made as to which a Notice of Borrowing has been given
by the Administrative Borrower under Section 2.02, (III) the Letter of Credit
Obligations at such time and (IV) the stated amount of all Letter of Credit
Accommodations not yet issued as to which a request has been made and not
withdrawn..
(ii) Each such reduction shall be in an amount which is an
integral multiple of $1,000,000 (unless the Total Revolving A Credit Commitment
in effect immediately prior to such reduction is less than $1,000,000), shall
be made by providing not less than three (3) Business Days' prior written
notice to the Administrative Agent and shall be irrevocable. Once reduced, the
applicable Total Revolving A Credit Commitment may not be increased.
(iii) Each such reduction of the Total Revolving A Credit
Commitment shall reduce the applicable Commitment of each Revolving A Lender
proportionately in accordance with its Pro Rata Share thereof.
(b) Optional Prepayment.
(i) Revolving A Loans. The Borrowers may prepay without
penalty or premium the principal of any Revolving A Loan, in whole or in part,
at any time. Each such prepayment (A) shall be in a minimum amount of $500,000
and in integral multiples of $100,000 in excess thereof (unless the outstanding
principal balance of the Revolving A Loan immediately prior to such reduction
is less than $500,000 or any such integral multiple in which case the
prepayment shall be in the entire amount of such outstanding principal
balance), (B) shall be made pursuant to a written or telephonic (confirmed by
telecopy) notice to the Administrative Agent received by the Administrative
Agent no later than 9:00 a.m. (New York City Time) on the date of such
prepayment and (C) shall be made no later than 12:00 noon (New York City
40
Time) on the date such notice is given. Each such notice shall be irrevocable
(provided that a notice of a refinancing of the entirety of the Loans delivered
by any Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by such Borrower (by notice to the Administrative Agent on or prior to
the effective date) if such condition is not satisfied) and shall specify the
prepayment date and the principal amount of each Revolving A Loan or portion
thereof to be prepaid.
(ii) B-Loans. The Borrowers may, upon at least three (3)
Business Days' prior written notice to the Administrative Agent, prepay without
penalty or premium, the principal of any B-Loan, in whole or in part; provided,
that, notwithstanding the foregoing, except in connection with the repayment in
full of all of the Obligations, the Borrowers may not (A) voluntarily prepay in
full the outstanding B-Loans unless (x) all of the outstanding Revolving A
Loans have been repaid in full and (y) the Total Revolving A Credit Commitment
has been, or is substantially concurrently being, reduced to zero or (B)
voluntarily prepay all or any portion of the outstanding B-Loans unless (x)
immediately after giving effect to such prepayment, Availability (calculated
without giving effect to any other adjustment or threshold, including, without
limitation, the requirements of Section 7.03(c)) would be at least $10,000,000
and (y) immediately before and immediately after giving effect to such
prepayment, no Event of Default shall have occurred and be continuing.
(iii) Prepayment In Full. The Borrowers may, upon at least
five (5) days prior written notice to the Administrative Agent, terminate this
Agreement by paying to the Administrative Agent, in cash, the Obligations
(including either (A) providing cash collateral to be held by the
Administrative Agent in an amount equal to 105% of the aggregate undrawn amount
of all outstanding Letter of Credit Accommodations or (B) causing the original
Letter of Credit Accommodations to be returned to the Administrative Agent), in
full. If the Administrative Borrower has sent a notice of termination pursuant
to this clause (iii), then the Lenders' obligations to extend credit hereunder
shall terminate and the Borrowers shall be obligated to repay the Obligations
(including either (A) providing cash collateral to be held by the
Administrative Agent in an amount equal to 105% of the aggregate undrawn amount
of all outstanding Letter of Credit Accommodations or (B) causing the original
Letter of Credit Accommodations to be returned to the Administrative Agent), in
full (other than contingent indemnifications and contingent obligations
(including, without limitation, fees and expenses with respect to which the
Borrowers have not received an invoice) for which no claim has been asserted
hereunder which survive the termination hereof), on the date set forth as the
date of termination of this Agreement in such notice.
(iv) Prepayment Fee on B-Loans. If all or any portion of the
B Loans is prepaid, the Borrowers, jointly and severally, agree to pay a
fully-earned and non-refundable prepayment fee on the principal amount prepaid
equal to 2% of the principal amount prepaid.
(c) Mandatory Prepayment.
(i) The Borrowers will immediately prepay the Revolving A
Loans at any time when the aggregate principal amount of all Revolving A Loans
plus the outstanding amount of all Letter of Credit Obligations exceeds the
Borrowing Base, to the full extent of any such excess. On each day that any
Revolving A Loans or Letter of Credit Obligations are
41
outstanding, the Borrowers shall hereby be deemed to represent and warrant to
the Agents and the Lenders that the Borrowing Base calculated as of such day
equals or exceeds the aggregate principal amount of all Revolving A Loans and
Letter of Credit Obligations outstanding on such day. If at any time after the
Borrowers have complied with the first sentence of this Section 2.05(c)(i),
the aggregate Letter of Credit Obligations is greater than the then current
Borrowing Base, the Borrowers shall provide cash collateral to the
Administrative Agent in an amount equal to 105% of such excess, which cash
collateral shall be deposited in the Letter of Credit Collateral Account and
if no Event of Default shall have occurred and be continuing, all or a portion
of such cash collateral shall be returned to the Borrowers at such time as the
aggregate Letter of Credit Obligations plus the aggregate principal amount of
all outstanding Revolving A Loans no longer exceeds the then current Borrowing
Base.
(ii) (X) On and after the delivery of an Activation Notice
in accordance with Section 8.01(b) the Administrative Agent shall on each
Business Day apply all funds transferred to or deposited in the Administrative
Agent's Account, to the payment, in whole or in part, of the outstanding
principal amount of the Revolving A Loans; provided that (A) such funds shall
be applied to the outstanding principal amount of the B-Loans (x) in the
absence of a continuing Event of Default, to the extent such application is
specifically provided for in Section 2.05(d), and (y) during the existence of
an Event of Default, in accordance with Section 4.04(b), and (B) if no
Revolving A Loans remain outstanding after the application of such funds to
repay any outstanding Revolving A Loans, such funds are not required to be
applied to the B-Loans pursuant to clause (A) of this proviso and no Event of
Default exists, the Borrowers shall be permitted to use the funds received in
the Administrative Agent's Account or any other account subject to the control
of the Administrative Agent for general corporate and working capital purposes
of the Borrowers subject to Section 6.01(t); and (Y) in addition, if on any
Business Day (x) the closing balance of cash and cash equivalents on deposit in
bank accounts plus (y) investments in money market funds and Securities
Accounts whose assets are substantially comprised of securities that consist of
cash equivalents of the Domestic Loan Parties and their Domestic Subsidiaries
(in each case other than (i) the funds on deposit in the Excluded Deposit
Accounts (as defined in the Security Agreement) and (ii) Net Cash Proceeds
which are required to be applied to the prepayment of the Loans in accordance
with Section 2.05(c) (other than this Section 2.05(c)(ii)(Y)) or are permitted
to be reinvested in accordance with Section 2.05(c)(x)) exceeds $4,000,000 in
the aggregate, the Borrowers shall prepay the Revolving A Loans in the amount
of such excess no later than 12:00 noon (New York City Time) on the immediately
succeeding Business Day. It is understood and agreed that, upon prior written
notice to the Administrative Agent received by Administrative Agent no later
than 9:00 a.m. (New York City Time) on the date that a prepayment under Section
2.05(c)(ii)(Y) is due, no prepayment under Section 2.05(c)(ii)(Y) shall be
required if the Administrative Borrower reasonably believes that such
prepayment will be in the amount of less than $100,000 after giving effect to
disbursements to third parties to be made prior to 12:00 noon (New York City
Time) on the date such prepayment is due. Upon request of the Administrative
Agent, the Administrative Borrower shall promptly provide to the Administrative
Agent a list of such third parties and amounts of such disbursements.
(iii) Upon any Disposition by any Loan Party or its Domestic
Subsidiaries, the Borrowers shall promptly (and, in no event, later than one
(1) Business Day after any such Disposition) prepay the Loans in an amount
equal to 100% of the Net Cash
42
Proceeds received by such Person in connection with such Disposition. Nothing
contained in this subsection (iii) shall permit any Loan Party or any of its
Subsidiaries to make a Disposition of any property other than in accordance
with Section 7.02(c). Any payments required to be made under this subsection
(c)(iii) shall be applied as set forth in Section 2.05(d).
(iv) Upon the issuance or incurrence by any Loan Party or
any of its Domestic Subsidiaries of any Indebtedness (other than Permitted
Indebtedness), or the sale or issuance by any Loan Party or any of its Domestic
Subsidiaries of any shares of its Capital Stock, in each case, other than
issuances and incurrences contemplated by the Mizuho/Glencore Transactions, the
Borrowers shall promptly (and, in no event, later than one (1) Business Day
after any such issuance or incurrence) prepay the outstanding amount of the
Loans in an amount equal to, (x) in the case of a "Rights Offering" (as such
term is defined in the Mizuho/Glencore Transaction Documents), the lesser of
(1) 65% of the Net Cash Proceeds received by such Person in connection
therewith and (2) the Net Cash Proceeds received by such Person in connection
therewith minus the lesser of (A) $30,000,000 and (B) the amount of such Net
Cash Proceeds used to redeem preferred stock in accordance with the
Mizuho/Glencore Transaction Documents and (y) in all other cases, 65% (or, in
the case of an offering of Securities, an amount equal to the aggregate
principal amount of B Loans) of the Net Cash Proceeds received by such Person
in connection therewith. The provisions of this subsection (iv) shall not be
deemed to be implied consent to any such issuance, incurrence or sale otherwise
prohibited by the terms and conditions of this Agreement. Any payments
required to be made under this subsection (c)(iv) shall be applied as set forth
in Section 2.05(d).
(v) Upon the receipt by any Loan Party or any of its
Domestic Subsidiaries of any Extraordinary Receipts, the Borrowers shall
promptly (and in no event, later than one (1) Business Day after the receipt
thereof) prepay the outstanding principal of the Loans in an amount equal to
65% of such Extraordinary Receipts, net of any reasonable expenses incurred in
collecting such Extraordinary Receipts, provided, however, an aggregate amount
equal to $2,000,000 of Extraordinary Receipts from royalty payments from the
settlement of license infringement claims of in connection with Parent's "XTL"
patent relating to computer-based controls for plastic molding machines and
warranties or other related claims against suppliers in connection with
products and services provided to the Loan Parties shall not be required to be
applied to repay the Loans. Any payments required to be made under this
subsection (c)(v) shall be applied as set forth in Section 2.05(d).
(vi) If on any day an Indenture Deficit exists, the
Borrowers shall pay to the Administrative Agent an amount equal to such
Indenture Deficit to be applied to the outstanding principal amount of the
Revolving A Loans and/or B-Loans which payment shall be made immediately as a
result of an Indenture Deficit pursuant to an event described under Section
2.01(c). Any payments required to be made under this subsection (c)(vi) shall
be applied as set forth in Section 2.05(d).
(vii) Immediately prior to the making of any payment in cash
by any Loan Party to the Euro Note Holders in respect of any obligations under
the Euro Notes, the Borrowers shall prepay the outstanding principal amount of
the Loans in an amount equal to five times the amount of such payment to be
made to the Milacron Note Holders; provided, that no such prepayment shall be
required if (A) such payments are not prohibited by the terms of the
43
proviso in the definition of Euro Note Restructuring Transaction or (B) in the
case of the interest payment due on April 6, 2004 to the Euro Note Holders,
such interest payment is made by Milacron Capital solely from cash received by
it from the Foreign Subsidiaries. Any payments required to be made under this
subsection (c)(vii) shall be applied as set forth in Section 2.05(d).
(viii)Immediately upon the receipt of a Foreign Insurance
Repayment, the Borrowers shall pay to the Administrative Agent an amount equal
to such Foreign Insurance Repayment to be applied to the outstanding principal
amount of the Loans. Any payments required to be made under this subsection
(c)(viii) shall be applied as set forth in Section 2.05(d).
(ix) Immediately prior to the making of any payment in cash
by any Loan Party in respect of its guaranties of the Indebtedness of any
Foreign Subsidiary, the Borrowers shall prepay the outstanding principal amount
of the Loans in an amount equal to the amount of such payment. Any payments
required to be made under this subsection (c)(ix) shall be applied as set forth
in Section 2.05(d).
(x) Notwithstanding the foregoing, in connection with a
Disposition under Section 2.05(c)(iii) or receipt of insurance proceeds or
condemnation awards pursuant to Section 2.05(c)(v), up to $1,000,000 in the
aggregate of the Net Cash Proceeds from such Disposition and up to $5,000,000
in the aggregate of the Net Cash Proceeds from Extraordinary Receipts from such
insurance proceeds or condemnation awards, as the case may be, received by any
Loan Party or any of its Domestic Subsidiaries in connection therewith shall
not be required to be applied to the prepayment of the Loans to the extent an
amount equal to such proceeds are used, in the case of proceeds related to any
Disposition, to fund Capital Expenditures of the Loan Parties or any of its
Domestic Subsidiaries, or, in the case of proceeds related to any Extraordinary
Receipts, to replace, repair or restore the properties or assets used in such
Loan Party's or any of its Domestic Subsidiaries' business in respect of which
such Net Cash Proceeds or Extraordinary Receipts, as the case may be, were
paid, provided that, (A) no Default or Event of Default has occurred and is
continuing on the date such Person receives such Net Cash Proceeds or such
Extraordinary Receipts, (B) the Administrative Borrower delivers a certificate
to the Administrative Agent within 3 Business Days after such Disposition or
3 Business Days after the date of such loss, destruction or taking, as the case
may be, stating that such proceeds shall be used, in the case of such proceeds
related to any Disposition, to fund Capital Expenditures of the Loan Parties or
any of its Domestic Subsidiaries, or, in the case of such proceeds related to
any Extraordinary Receipts, to replace, repair or restore any such properties
or assets to be used in such Loan Party's business within a period specified in
such certificate not to exceed 60 days after the receipt of such proceeds
(which certificate shall set forth estimates of the proceeds to be so expended)
and (C) such proceeds are deposited in an account subject to the sole dominion
of the Administrative Agent. If all or any portion of such proceeds not so
applied to the prepayment of the Loans are not used in accordance with the
preceding sentence within the period specified in the relevant certificate
furnished pursuant hereto or there shall occur a Default or Event of Default,
such remaining portion shall be applied to the Loans as required by Section
2.05(c)(iii) or Section 2.05(c)(v), as applicable, on the last day of such
specified period or immediately, in the case of a Default or Event of Default.
(d) Application of Payments. At any time when no Event of
Default exists, the proceeds of the prepayments required under Section 2.05(c)
shall be applied as follows (it
44
being agreed and understood that if an Event of Default does exist then
prepayments shall be applied in the manner set forth in Section 4.04(b)):
(i) the proceeds from any prepayment pursuant to any
Disposition of any Account or Inventory or any insurance policy or condemnation
award with respect to Inventory, shall be applied to the Revolving A Loans
until paid in full;
(ii) the proceeds from any prepayment pursuant to a
Disposition of all or substantially all of the assets or Capital Stock of any
Person or any insurance policy or award or condemnation award which Disposition
or proceeds of insurance includes both (x) Accounts or Inventory and (y) other
assets (in each case, other than from the proceeds of any Designated
Disposition), shall be applied as follows: (A) an amount equal to the amount
of Revolving A Loans supported by such assets determined using the effective
advance rate under the Borrowing Base against such Accounts and Inventory
(determined at the time of such Disposition or event resulting in such
insurance proceeds) shall be applied to the Revolving A Loans until paid in
full, and (B) the remaining proceeds shall be applied first, to the B-Loans
until paid in full, second, to the Revolving A Loans until paid in full;
(iii) the proceeds from any prepayment pursuant to a
Designated Business Disposition or any insurance policy or condemnation award
with respect to the Designated Business which Disposition or proceeds of
insurance or award includes both (x) Accounts or Inventory and (y) other
assets, shall be applied as follows: (A) an amount equal to the amount of
Revolving A Loans supported by such assets determined using the effective
advance rate under the Borrowing Base against such Accounts and Inventory
(determined at the time of such Disposition or event resulting in such
insurance proceeds) shall be applied to the Revolving A Loans until paid in
full, and (B) the remaining proceeds shall be applied to the B-Loans until paid
in full;
(iv) the proceeds from any prepayment pursuant to a
Designated Real Property Disposition or any insurance policy or condemnation
award with respect to the Designated Real Property shall be applied as follows:
(A) 100% of the proceeds shall be applied to the B-Loans until paid in full and
(B) thereafter, the proceeds shall be applied to the Revolving A Loans until
paid in full;
(v) (x) with respect to the first $5,000,000 of proceeds
from prepayment events set forth in Section 2.05(c) (iii) with respect to
Dispositions (other than with respect to Dispositions described in paragraphs
(i), (ii), (iii) or (iv) above) to be applied pursuant to this clause, such
proceeds shall be applied to the Revolving A Loans until paid in full (with any
excess proceeds not being required to be applied pursuant to this clause (v))
and (y) with respect to any other proceeds from any prepayment event set forth
in Section 2.05(c)(iii) (other than with respect to Dispositions described in
paragraphs (i), (ii), (iii) or (iv) above), Section 2.05(c)(iv), or Section
2.05(c)(v) (other than proceeds from any insurance policy or condemnation award
with respect to Inventory) shall be applied first, to the B-Loans until paid in
full, and, second, to the Revolving A Loans until paid in full;
45
(vi) the proceeds from any prepayment event set forth in
Section 2.05(c)(vi) or Section 2.05(c)(viii) shall be applied first, to the
Revolving A Loans until paid in full, and, second, to the B-Loans until paid in
full; and
(vii) the proceeds from any prepayment event set forth in
Section 2.05(c)(vii) or Section 2.05(c)(ix) shall be applied first, to the B-
Loans until paid in full, and, second, to the Revolving A Loans until paid in
full.
(e) Cumulative Prepayments. Except as otherwise expressly
provided in this Section 2.05, payments with respect to any subsection of this
Section 2.05 are in addition to payments made or required to be made under any
other subsection of this Section 2.05, and, in no event, shall proceeds be
required to be applied under more than one subsection of Section 2.05(d).
(f) (i) Availability Requirements. Notwithstanding anything to
the contrary contained herein, if Availability (without giving effect to any
other adjustment or threshold, including, without limitation, the requirements
of Section 7.03(c)) would be less than $10,000,000 immediately after giving
effect to any prepayment of the B-Loans pursuant to Section 2.05(d)(ii),
Section 2.05(d)(iii), Section 2.05(d)(iv) or Section 2.05(d)(v), no such
prepayment of the B-Loans shall be made and such amounts shall be applied to
the repayment of the Revolving A Loans. Concurrently with such repayment of
the Revolving A Loans, the Administrative Agent shall establish and maintain a
corresponding reserve against both the Borrowing Base and the Total Revolving A
Credit Commitment in an amount equal to the amount that would have otherwise
been applied as a prepayment of the B-Loans, and the B-Loans may be prepaid by
such amount at such time and from time to time if no Event of Default would
exist and Availability (calculated without giving effect to these reserves or
any other adjustment or threshold, including, without limitation, the
requirements of Section 7.03(c)) would exceed $10,000,000 immediately after
giving effect to such prepayment of the B-Loan by such amount and the
corresponding reserve established pursuant to the first sentence of this
Section 2.05(f) against both the Borrowing Base and the Total Revolving A
Credit Commitment shall be released in an amount equal to such prepayment at
such time and from time to time as each such prepayment is made.
Section 2.06 Fees. From and after the Effective Date and until the Final
Maturity Date, the Borrowers shall pay to the Administrative Agent (a) for the
account of the Lenders, in accordance with a written agreement among the
Agents and the Lenders, an unused line fee (the "Unused Line Fee"), which
shall accrue at the rate per annum of 0.75% on the excess, if any, of the
Total Commitment over the sum of the average principal amount of all Loans and
Letter of Credit Obligations outstanding from time to time and shall be
payable monthly in arrears on the first day of each month hereafter, and (b)
such other fees as may be specified in the Fee Letter when and as due in
accordance with the terms thereof.
Section 2.07 Securitization. The Loan Parties hereby acknowledge that
the Lenders and their Affiliates may sell or securitize the Loans (a
"Securitization") through the pledge of the Loans as collateral security for
loans to the Lenders or their Affiliates or through the sale of the Loans or
the issuance of direct or indirect interests in the Loans, which loans to the
Lenders or their Affiliates or direct or indirect interests will be rated by
▇▇▇▇▇'▇, Standard & Poor's or one
46
or more other rating agencies (the "Rating Agencies"). The Loan Parties shall
cooperate with the Lenders and their Affiliates to effect the Securitization
including, without limitation, by (a) amending this Agreement and the other
Loan Documents, and executing such additional documents, as reasonably
requested by the Lenders in connection with the Securitization, provided that
(i) any such amendment or additional documentation does not impose material
additional costs on the Loan Parties and (ii) any such amendment or additional
documentation does not materially adversely affect the rights, or materially
increase the obligations, of the Loan Parties under the Loan Documents or
change or affect in a manner adverse to the Loan Parties the financial terms
of the Loans, (b) providing such information as may be reasonably requested by
the Lenders in connection with the rating of the Loans or the Securitization,
and (c) providing in connection with any rating of the Loans a certificate.
Section 2.08 Taxes.
(a) Any and all payments by any Loan Party hereunder or under any
other Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (i) taxes
imposed on (or measured by) the net income of any Agent, any Lender or the L/C
Issuer (or any transferee or assignee thereof, including a participation holder
(any such entity, a "Transferee")) solely as a result of any present or former
connection between such Agent, such Lender or the L/C Issuer (or Transferee)
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision thereof or therein (other than as a result of entering
into this Agreement or any other Loan Document, performing any obligations
hereunder or under any other Loan Document, receiving any payments hereunder or
under any other Loan Document, taking any other action in connection with this
Agreement or any other Loan Document or enforcing any rights hereunder or under
any other Loan Document and (ii) any branch profits taxes or any similar tax
imposed by the United States of America or by the jurisdiction in which such
Agent, such Lender or the L/C Issuer is organized or has its principal lending
office (all such nonexcluded taxes, levies, imposts, deductions, charges
withholdings and liabilities, collectively or individually, "Taxes"). If any
Loan Party shall be required to deduct any Taxes from or in respect of any sum
payable hereunder to any Agent, any Lender or the L/C Issuer (or any
Transferee), (A) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.08) such Agent, such Lender or the L/C Issuer (or such Transferee) shall
receive an amount equal to the sum it would have received had no such
deductions been made, (B) such Loan Party shall make such deductions and (C)
such Loan Party shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, each Loan Party agrees to pay to the relevant
Governmental Authority in accordance with applicable law any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Letter of Credit Accommodations or any other Loan Document
("Other Taxes"). Each Loan Party shall deliver to the Administrative Agent
official receipts or other evidence of such payment reasonably satisfactory to
the Administrative Agent in respect of any Taxes or Other Taxes payable
hereunder promptly after payment of such Taxes or Other Taxes.
47
(c) The Loan Parties hereby jointly and severally indemnify and
agree to hold each Agent, each Lender and the L/C Issuer harmless from and
against Taxes and Other Taxes (including, without limitation, Taxes and Other
Taxes imposed on any amounts payable under this Section 2.08) paid by such
Lender, such Agent or the L/C Issuer (or such Transferee), whether or not such
Taxes or Other Taxes were correctly or legally asserted. Such indemnification
shall be paid within 10 days from the date on which such Lender, such Agent or
the L/C Issuer makes written demand therefor specifying in reasonable detail
the nature and amount of such Taxes or Other Taxes.
(d) Each Lender (or Transferee) that is organized under the laws
of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the Administrative
Agent and the Administrative Borrower two properly completed and duly executed
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, and,
in the case of a Non-U.S. Lender claiming exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code
with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of any Borrower and is not a controlled foreign
corporation related to a Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), in each case claiming complete exemption from U.S.
Federal withholding tax on payments by the Loan Parties under this Agreement.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes a
Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender
changes its applicable lending office by designating a different lending office
(a "New Lending Office"). In addition, each Non-U.S. Lender shall deliver such
forms within 20 days after receipt of a written request therefor from the
Administrative Borrower or the Administrative Agent. Notwithstanding any other
provision of this Section 2.08, a Non-U.S. Lender shall not be required to
deliver after the date hereof or, if applicable, the date a Transferee becomes
a party to this Agreement or the Non-U.S. Lender designates a New Lending
Office any form pursuant to this Section 2.08 that such Non-U.S. Lender is not
legally able to deliver.
(e) The Loan Parties shall not be required to indemnify any Non-
U.S. Lender, or pay any additional amounts to any Non-U.S. Lender, in respect
of United States Federal withholding tax pursuant to this Agreement to the
extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender became
a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a Transferee
hereunder) or, with respect to payments to a New Lending Office, the date such
Non-U.S. Lender designated such New Lending Office with respect to a Loan;
provided, however, that this clause (i) shall not apply to the extent the
indemnity payment or additional amounts any Transferee, or any Lender (or
Transferee) through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or additional
amounts that the Person making the assignment, participation or transfer to
such Transferee, or such Lender (or Transferee) making the designation of such
New Lending Office, would have been entitled to receive in the
48
absence of such assignment, participation, transfer or designation, (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Non- U.S. Lender to comply with the provisions of paragraph
(d) above or (iii) the obligation to pay such additional amounts does not
result from a change in applicable tax law (including, without limitation,
applicable judicial decisions, statutes, regulations or other administrative
interpretations) occurring after the date hereof.
(f) Any Lender, any Agent or the L/C Issuer (or Transferee)
claiming any indemnity payment or additional payment amounts payable pursuant
to this Section 2.08 shall use its reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Administrative Borrower or to change the
jurisdiction of its applicable lending office or assign its rights and
obligations hereunder to another of its offices, branches or affiliates if the
making of such a filing, change or assignment would avoid the need for or
reduce the amount of any such indemnity payment or additional amount which may
thereafter accrue, would not require such Lender, such Agent or the L/C Issuer
(or Transferee) to disclose any information such Lender, such Agent or the L/C
Issuer (or Transferee) deems confidential and would not, in the sole
determination of such Lender, such Agent or the L/C Issuer (or Transferee), be
otherwise disadvantageous to such Lender, such Agent or the L/C Issuer (or
Transferee).
(g) If any Lender, any Agent or the L/C Issuer (or a Transferee)
shall become aware that it is entitled to claim a refund from a Governmental
Authority in respect of Taxes or Other Taxes with respect to which any Loan
Party has paid additional amounts, pursuant to this Section 2.08, it shall
promptly notify the Administrative Borrower of the availability of such refund
claim and shall, within 30 days after receipt of a request by the
Administrative Borrower, make a claim to such Governmental Authority for such
refund at the Loan Parties' expense. If any Lender, any Agent or the L/C
Issuer (or a Transferee) receives a refund (including pursuant to a claim for
refund made pursuant to the preceding sentence) in respect of any Taxes or
Other Taxes with respect to which any Loan Party has paid additional amounts
pursuant to this Section 2.08, it shall within 30 days from the date of such
receipt pay over such refund to the Administrative Borrower, net of all out-of-
pocket expenses of such Lender, such Agent or the L/C Issuer (or Transferee).
(h) The obligations of the Loan Parties under this Section 2.08
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
Section 2.09 LIBOR Not Determinable; Illegality or Impropriety. In the
event, and on each occasion, that on or before the day on which LIBOR is to be
determined for a borrowing that is to include LIBOR Loans, the Administrative
Agent has determined in good faith that, or has been advised by the Collateral
Agent or the Required Lenders that, (i) LIBOR cannot be reasonably determined
for any reason, (ii) LIBOR will not adequately and fairly reflect the cost of
maintaining LIBOR Loans or (iii) Dollar deposits in the principal amount of
the applicable LIBOR Loans are not available in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of the Lenders' LIBOR Loans are then being conducted, the
Administrative Agent shall, as soon as practicable thereafter, give written
notice of such determination to the Administrative Borrower and the other
Lenders. In the event
49
of any such determination, any request by the Administrative Borrower for a
LIBOR Loan pursuant to Section 2.02 shall, until, the Administrative Agent has
advised the Administrative Borrower and the other Lenders that, the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for a Reference Rate Loan. Each determination by the Administrative
Agent hereunder shall be conclusive and binding absent manifest error.
(b) In the event that, as a result of any Change in Law, it shall
be unlawful or improper for any Lender to make, maintain or fund any LIBOR Loan
as contemplated by this Agreement, then such Lender shall forthwith give notice
thereof to the Administrative Agent and the Administrative Borrower describing
such illegality or impropriety in reasonable detail. Effective immediately
upon the giving of such notice, the obligation of such Lender to make LIBOR
Loans shall be suspended for the duration of such illegality or impropriety
and, if and when such illegality or impropriety ceases to exist, such
suspension shall cease, and such Lender shall notify the Administrative Agent
and the Administrative Borrower. If any such Change in Law shall make it
unlawful or improper for any Lender to maintain any outstanding LIBOR Loan as a
LIBOR Loan, such Lender shall, upon the happening of such Change in Law, notify
the Administrative Agent and the Administrative Borrower, and the
Administrative Borrower shall immediately, or if permitted by applicable law,
rule, regulation, order, decree, interpretation, request or directive, at the
end of the then current Interest Period for such LIBOR Loan, convert each such
LIBOR Loan into a Reference Rate Loan.
Section 2.10 Indemnity.
(a) The Borrowers hereby jointly and severally indemnify each
Lender against any loss or expense that such Lender actually sustains or incurs
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain any LIBOR Loan, but excluding loss of anticipated profits)
as a consequence of (i) any failure by the Borrowers to fulfill on the date of
any borrowing hereunder the applicable conditions set forth in Article V,
(ii) any failure by the Borrowers to borrow any LIBOR Loan hereunder, to
convert any Reference Rate Loan into a LIBOR Loan or to continue a LIBOR Loan
as such after notice of such borrowing, conversion or continuation has been
given pursuant to Section 2.02 or 2.11 hereof, (iii) any payment, prepayment
(mandatory or optional) or conversion of a LIBOR Loan required by any provision
of this Agreement or otherwise made on a date other than the last day of the
Interest Period applicable thereto, (iv) any default in payment or prepayment
of the principal amount of any LIBOR Loan or any part thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, by
notice of prepayment or otherwise), or (v) the occurrence of any Event of
Default, including, in each such case, any loss (but excluding loss of
anticipated profits) or reasonable expense sustained or incurred in liquidating
or employing deposits from third parties acquired to effect or maintain such
Loan or any part thereof as a LIBOR Loan. Such loss or reasonable expense
shall include but not be limited to an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds
for the Loan being paid or prepaid or converted or continued or not borrowed or
converted or continued (based on LIBOR applicable thereto) for the period from
the date of such payment, prepayment, conversion, continuation or failure to
borrow, convert or continue on the last day of the Interest Period for such
Loan (or, in the case of a failure to
50
borrow, convert or continue, the last day of the Interest Period for such Loan
that would have commenced on the date of such failure to borrow, convert or
continue) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in re-employing the funds so
paid, prepaid, converted or continued or not borrowed, converted or continued
for such Interest Period. A certificate of any Lender setting forth in
reasonable detail any amount or amounts that such Lender is entitled to
receive pursuant to this Section 2.10 and the basis for the determination of
such amount or amounts shall be delivered to the Administrative Borrower and
shall be conclusive and binding absent manifest error.
(b) Notwithstanding paragraph (a) of this Section 2.10, the
Administrative Agent will use reasonable efforts to minimize or reduce any such
loss or expense resulting from the mandatory prepayments required by
Section 2.05 of this Agreement by applying all payments and prepayments to
Reference Rate Loans prior to any application of payments to LIBOR Loans before
the last day of the Interest Period therefor.
Section 2.11 Continuation and Conversion of Loans. Subject to Section
2.09 hereof, the Borrowers shall have the right, at any time, on three (3)
Business Days' prior irrevocable written or telecopy notice to the
Administrative Agent, to continue any LIBOR Loan, or any portion thereof, into
a subsequent Interest Period or to convert any Reference Rate Loan or portion
thereof into a LIBOR Loan, or on one (1) Business Day's prior irrevocable
written or telecopy notice to the Administrative Agent, to convert any LIBOR
Loan or portion thereof into a Reference Rate Loan, subject to the following:
(a) no LIBOR Loan may be continued as such and no Reference Rate
Loan may be converted into a LIBOR Loan, when any Event of Default or Default
shall have occurred and be continuing at such time;
(b) in the case of a continuation of a LIBOR Loan as such or a
conversion of a Reference Rate Loan into a LIBOR Loan, the aggregate principal
amount of such LIBOR Loan shall not be less than $1,000,000 and in multiples of
$500,000 if in excess thereof;
(c) any portion of a Loan maturing or required to be repaid in
less than one month may not be converted into or continued as a LIBOR Loan;
(d) if any conversion of a LIBOR Loan shall be effected on a day
other than the last day of an Interest Period, the Borrowers shall reimburse
each Lender on demand for any loss incurred or to be incurred or to be incurred
by it in the reemployment of the funds released by such conversion as provided
in Section 2.10 hereof; and
(e) in the case of any conversion or continuation, such election
must be made pursuant to a written notice (a "Notice of
Conversion/Continuation") in the form of Exhibit D-2.
In the event that the Administrative Borrower shall not give notice
to continue any LIBOR Loan into a subsequent Interest Period, such Loan shall
automatically become a Reference Rate Loan at the expiration of the then
current Interest Period.
Section 2.12 Conversion to Dollars. (a) All valuations or computations
of monetary amounts set forth in this Agreement or the Loan Documents shall
include the Dollar Equivalent of amounts of currencies other than Dollars. In
connection with all such Dollar Equivalent
51
amounts set forth in this Agreement and the Loan Documents (including for the
purpose of calculation of Availability, the Borrowing Base, Excess
Availability), currencies other than Dollars shall be converted to Dollars on
the basis of the Spot Rate for the purchase of Dollars with such other
currency in each case as determined by the Administrative Agent in its
reasonable discretion, on the date of determination.
ARTICLE III.
LETTER OF CREDIT ACCOMMODATIONS AND OTHER MATTERS
Section 3.01 Letter of Credit Accommodations. (a) Subject to and upon
the terms and conditions contained herein, at the request of the Administrative
Borrower on behalf of a Borrower, the Administrative Agent agrees, for the
ratable risk of each Revolving A Lender according to its Pro Rata Share (as
determined under clause (a) of such definition), to provide or arrange for
Letter of Credit Accommodations for the account of such Borrower containing
terms and conditions reasonably acceptable to the Administrative Agent and
acceptable to the issuer thereof. Any payments made by or on behalf of the
Administrative Agent or any Revolving A Lender to the L/C Issuer and/or any
related party in connection with the Letter of Credit Accommodations provided
to or for the benefit of a Borrower shall constitute Revolving A Loans to such
Borrower (or Agent Advances as the case may be).
(b) In addition to a fee to the L/C Issuer of not less than 0.25%
of the face amount of any Letter of Credit Accommodation as a condition to
issuance thereof, the Borrowers shall pay to the Administrative Agent for the
account of the Revolving A Lenders, in accordance with a written agreement
among the Administrative Agent and the Lenders, (i) for any Letter of Credit
Accommodation issued hereunder, a non-refundable fee equal to 3.625% per annum,
of the stated amount of such Letter of Credit Accommodation, payable on the
date such Letter of Credit Accommodation is issued and (ii) for any amendment
to an existing Letter of Credit Accommodation that increases the stated amount
of such Letter of Credit Accommodation, a non-refundable fee equal to 3.625%
per annum of the increase in the stated amount of such Letter of Credit
Accommodation, payable on the date of such increase (the "Letter of Credit
Fees"), except that the Administrative Agent may, and upon the written
direction of the Required A Lenders shall, require the Borrowers to pay to the
Administrative Agent such Letter of Credit Fee, at a rate equal to 4.75% plus
the per annum rate otherwise applicable thereto on such daily outstanding
balance for: (A) the period from and after the date of termination hereof
until all Obligations shall have been Paid in Full (notwithstanding entry of a
judgment against any Borrower) and (B) the period from and after the date of
the occurrence of an Event of Default for so long as such Event of Default is
continuing as determined by the Administrative Agent. Such Letter of Credit
Fee shall be calculated on the basis of a three hundred sixty (360) day year
and actual days elapsed and the obligation of the Borrowers to pay such fee
shall survive the termination of this Agreement.
(c) The Administrative Borrower requesting such Letter of Credit
Accommodation shall give the Administrative Agent ten (10) Business Days' (or
such shorter period as may be agreed by the Administrative Agent) prior written
notice of such Borrower's request for the issuance of a Letter of Credit
Accommodation. Such notice shall be irrevocable and shall specify the original
face amount of the Letter of Credit Accommodation requested, the
52
effective date (which date shall be a Business Day) of issuance of such
requested Letter of Credit Accommodation, whether such Letter of Credit
Accommodation may be drawn in a single draw or in partial draws, the date on
which such requested Letter of Credit Accommodation is to expire (which date
shall be a Business Day and which shall not be later than February 18, 2005),
the purpose for which such Letter of Credit Accommodation is to be issued, and
the beneficiary of the requested Letter of Credit Accommodation. The
Administrative Borrower requesting the Letter of Credit Accommodation shall
attach to such notice the proposed terms of the Letter of Credit
Accommodation.
(d) In addition to being subject to the satisfaction of the
applicable conditions precedent contained in this Agreement, no Letter of
Credit Accommodations shall be available unless each of the following
conditions precedent have been satisfied in a manner satisfactory to the
Administrative Agent: (i) the Borrower requesting such Letter of Credit
Accommodation (or the Administrative Borrower on behalf of such Borrower) shall
have delivered to the L/C Issuer of such Letter of Credit Accommodation at such
times and in such manner as such L/C Issuer may require, an application, in
form and substance satisfactory to such L/C Issuer and in form and substance
reasonably satisfactory to the Administrative Agent, for the issuance of the
Letter of Credit Accommodation and such other documents as may be required
pursuant to the terms thereof, and the form and terms of the proposed Letter of
Credit Accommodation shall be satisfactory to such L/C Issuer in form and
substance reasonably satisfactory to the Administrative Agent, and (ii) as of
the date of issuance, no order of any court, arbitrator or other Governmental
Authority shall purport by its terms to enjoin or restrain money center banks
generally from issuing letters of credit of the type and in the amount of the
proposed Letter of Credit Accommodation, and no law, rule or regulation
applicable to money center banks generally and no request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over money center banks generally shall prohibit, or request that
the L/C Issuer of such Letter of Credit Accommodation refrain from, the
issuance of letters of credit generally or the issuance of such Letter of
Credit Accommodation.
(e) Except in the Administrative Agent's discretion, with the
consent of all of the Revolving A Lenders, the amount of all outstanding Letter
of Credit Accommodations and all other commitments and obligations made or
incurred by the Administrative Agent or any Revolving A Lender in connection
therewith shall not at any time exceed the lowest of (i) the difference between
(A) the Total Revolving A Credit Commitment and (B) the aggregate principal
amount of the Revolving A Loans then outstanding, (ii) the difference between
(A) the Borrowing Base and (B) the aggregate principal amount of the Revolving
A Loans then outstanding and (iii) $25,000,000. In no event shall any Letter
of Credit Accommodations or other commitments or obligations be requested if
the making or incurrence thereby would result in an Indenture Deficit.
(f) The Loan Parties shall indemnify and hold the Agents and
Lenders harmless from and against any and all losses, claims, damages,
liabilities, costs and expenses which any Agent or any Lender may suffer or
incur in connection with any Letter of Credit Accommodations and any documents,
drafts or acceptances relating thereto, including any losses, claims, damages,
liabilities, costs and expenses due to any action taken by any issuer or
correspondent with respect to any Letter of Credit Accommodation, except for
such losses, claims, damages, liabilities, costs or expenses that are a direct
result of the gross negligence or
53
willful misconduct of any Agent or Lender as determined pursuant to a final
non-appealable order of a court of competent jurisdiction. Each Loan Party
assumes all risks with respect to the acts or omissions of the drawer under or
beneficiary of any Letter of Credit Accommodation and for such purposes the
drawer or beneficiary shall be deemed such Borrower's agent. Each Loan Party
assumes all risks for, and agrees to pay, all foreign, Federal, state and
local taxes, duties and levies relating to any goods subject to any Letter of
Credit Accommodations or any documents, drafts or acceptances thereunder. Each
Loan Party hereby releases and holds the Agents and Lenders harmless from and
against any acts, waivers, errors, delays or omissions, whether caused by any
Loan Party, by any issuer or correspondent or otherwise with respect to or
relating to any Letter of Credit Accommodation, except for the gross
negligence or willful misconduct of any Agent or Lender as determined pursuant
to a final, non-appealable order of a court of competent jurisdiction. The
provisions of this Section 3.01(f) shall survive the payment of Obligations
and the termination of this Agreement.
(g) In connection with Inventory purchased pursuant to Letter of
Credit Accommodations, the Domestic Loan Parties shall, at the Administrative
Agent's request, instruct all suppliers, carriers, forwarders, customs brokers,
warehouses or others receiving or holding cash, checks, Inventory, documents or
instruments in which the Collateral Agent or the Administrative Agent holds a
security interest to deliver them to the Administrative Agent and/or subject to
the Administrative Agent's order, and if they shall come into such Domestic
Loan Party's possession, to deliver them, upon the Administrative Agent's
request, to the Administrative Agent in their original form. The Domestic Loan
Parties shall also, at the Administrative Agent's request, designate the
Administrative Agent as the consignee on all bills of lading and other
negotiable and non-negotiable documents.
(h) Each Borrower hereby irrevocably authorizes and directs any
issuer of a Letter of Credit Accommodation to name such Borrower as the account
party therein and to deliver to the Administrative Agent all instruments,
documents and other writings and property received by the issuer pursuant to
the Letter of Credit Accommodations and to accept and rely upon the
Administrative Agent's instructions and agreements with respect to all matters
arising in connection with the Letter of Credit Accommodations or the
applications therefor. Nothing contained herein shall be deemed or construed
to grant any Borrower any right or authority to pledge the credit of any Agent
or any Lender in any manner. The Agents and Lenders shall have no liability of
any kind with respect to any Letter of Credit Accommodation provided by an
issuer other than the Administrative Agent or any Lender unless the
Administrative Agent has duly executed and delivered to such issuer the
application or a guarantee or indemnification in writing with respect to such
Letter of Credit Accommodation. The Borrowers shall be bound by any reasonable
interpretation made in good faith by the Administrative Agent, or any other
issuer or correspondent under or in connection with any Letter of Credit
Accommodation or any documents, drafts or acceptances thereunder,
notwithstanding that such interpretation may be inconsistent with any
instructions of any Borrower.
(i) As long as no Event of Default has occurred and is
continuing, a Borrower may (i) approve or resolve any questions of non-
compliance of documents, (ii) give any instructions as to acceptance or
rejection of any documents or goods, (iii) execute any and all applications for
steamship or airway guaranties, indemnities or delivery orders, (iv) with the
Administrative Agent's prior written consent, grant any extensions of the
maturity of, time of
54
payment for, or time of presentation of, any drafts, acceptances, or
documents, and (v) agree to any amendments, renewals, extensions,
modifications, changes or cancellations of any of the terms or conditions of
any of the applications, Letter of Credit Accommodations, or documents, drafts
or acceptances thereunder or any letters of credit included in the Collateral;
provided, that no Borrower may extend the expiry date of any Letter of Credit
Accommodation to a date that is later than 5 days prior to the Final Maturity
Date except as provided in Section 3.01(c).
(j) At any time an Event of Default has occurred and is
continuing, the Administrative Agent shall have the right and authority to, and
the Borrowers shall not, without the prior written consent of the
Administrative Agent, (i) approve or resolve any questions of non-compliance of
documents, (ii) give any instructions as to acceptance or rejection of any
documents or goods, (iii) execute any and all applications for steamship or
airway guaranties, indemnities or delivery orders, (iv) grant any extensions of
the maturity of, time of payments for, or time of presentation of, any drafts,
acceptances, or documents, and (v) agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letter of Credit Accommodations, or
documents, drafts or acceptances thereunder or any letters of credit included
in the Collateral. The Administrative Agent may take such actions either in
its own name or in any Loan Party's name.
(k) Any rights, remedies, duties or obligations granted or
undertaken by any Borrower to any issuer or correspondent in any application
for any Letter of Credit Accommodation, or any other agreement in favor of any
issuer or correspondent relating to any Letter of Credit Accommodation, shall
be deemed to have been granted or undertaken by such Borrower to the
Administrative Agent for the ratable benefit of the Revolving A Lenders. Any
duties or obligations undertaken by the Administrative Agent to any issuer or
correspondent in any application for any Letter of Credit Accommodation, or any
other agreement by the Administrative Agent in favor of any issuer or
correspondent to the extent relating to any Letter of Credit Accommodation,
shall be deemed to have been undertaken by the Borrowers to the Administrative
Agent for the ratable benefit of the Revolving A Lenders and to apply in all
respects to the Borrowers.
(l) Immediately upon the issuance or amendment of any Letter of
Credit Accommodation, each Revolving A Lender shall be deemed to have
irrevocably and unconditionally purchased and received, without recourse or
warranty, an undivided interest and participation to the extent of such
Lender's Pro Rata Share (determined pursuant to clause (a) of such definition)
of the liability with respect to such Letter of Credit Accommodation
(including, without limitation, all Obligations with respect thereto).
(m) In the event of a payment under any Letter of Credit
Accommodation to the beneficiary thereof, the Administrative Agent shall notify
the Administrative Borrower reasonably promptly following such payment. The
Borrowers shall reimburse the Administrative Agent, for the benefit of the
issuer of the Letter of Credit Accommodation, on the date which such payment is
made in an amount in immediately available funds equal to the payment amount.
It being further provided that (i) the Administrative Borrower shall be deemed
to have given a timely Notice of Borrowing to the Administrative Agent
requesting Revolving A Lenders to make Revolving A Loans that are Reference
Rate Loans on the payment date in an amount equal to the payment amount, and
(ii) the Revolving A Lenders shall, on the payment
55
date, make Revolving A Loans equal to the payment amount. Notwithstanding the
foregoing, each Borrower is irrevocably and unconditionally obligated, without
presentment, demand or protest, to pay to the Administrative Agent any amounts
paid by an issuer of a Letter of Credit Accommodation with respect to such
Letter of Credit Accommodation (whether through Revolving A Loans or
otherwise). In the event that any Borrower fails to pay the Administrative
Agent on the date of any payment under a Letter of Credit Accommodation in an
amount equal to the amount of such payment, the Administrative Agent (to the
extent it has actual notice thereof) shall promptly notify each Revolving A
Lender of the unreimbursed amount of such payment and each Revolving A Lender
agrees, upon one (1) Business Day's notice, to fund to the Administrative
Agent the purchase of its participation in such Letter of Credit Accommodation
in an amount equal to its Pro Rata Share of the unpaid amount. The obligation
of each Revolving A Lender to deliver to the Administrative Agent an amount
equal to its respective participation pursuant to the foregoing sentence is
absolute and unconditional and such remittance shall be made notwithstanding
the occurrence or continuance of any Event of Default, the failure to satisfy
any other condition set forth in Section 5.02 or any other event or
circumstance. If such amount is not made available by a Revolving A Lender
when due, the Administrative Agent shall be entitled to recover such amount on
demand from such Revolving A Lender with interest thereon, for each day from
the date such amount was due until the date such amount is paid to the
Administrative Agent at the interest rate then payable by any Borrower in
respect of Revolving A Loans.
(n) The Administrative Agent shall not make any Revolving A Loan
or provide any Letter of Credit Accommodation to the Borrowers on behalf of the
Revolving A Lenders intentionally and with actual knowledge that such Revolving
A Loan or Letter of Credit Accommodation would cause the aggregate amount of
the total outstanding Revolving A Loans and Letter of Credit Accommodations to
the Borrowers to exceed the Borrowing Base, except that the Administrative
Agent may, pursuant to the terms set forth in Section 10.08(a), make such
additional Revolving A Loans or provide such additional Letter of Credit
Accommodations on behalf of the Revolving A Lenders, intentionally and with
actual knowledge that such Revolving A Loans or Letter of Credit Accommodations
will cause the total outstanding Revolving A Loans and Letter of Credit
Accommodations to the Borrowers to exceed the Borrowing Base, as the
Administrative Agent may deem necessary or advisable in its discretion,
provided that: (i) the aggregate principal amount of the additional Revolving
A Loans or additional Letter of Credit Accommodations to any Borrower which the
Administrative Agent may make or provide (after obtaining such actual knowledge
that the aggregate principal amount of the Revolving A Loans plus the
outstanding Letter of Credit Accommodations equal or exceed the Borrowing
Base), plus the amount of Agent Advances made pursuant to Section 10.08(a) then
outstanding, shall not at any time exceed the amount set forth in a separate
written agreement among the Agents and the Lenders and shall not cause the
total principal amount of the Revolving A Loans and Letter of Credit
Accommodations to exceed the Total Revolving A Credit Commitment and (ii) no
such additional Revolving A Loan or Letter of Credit Accommodation shall be
outstanding more than ninety (90) days after the date such additional Revolving
A Loan or Letter of Credit Accommodation is made or issued (as the case may
be), except as the Lenders may otherwise agree. Each Revolving A Lender shall
be obligated to pay the Administrative Agent the amount of its Pro Rata Share
of any such additional Revolving A Loans or Letter of Credit Accommodations.
56
Section 3.02 Collection of Accounts.
(a) The Borrowers shall establish and maintain, at their expense,
Cash Management Accounts pursuant to Section 8.01(a) into which the Borrowers
shall promptly deposit and shall direct their respective Account Debtors to
directly remit all payments on Receivables and all payments constituting
proceeds of Inventory or other Collateral in the identical form in which such
payments are made, whether by cash, check or other manner.
(b) For purposes of calculating the amount of Loans available to
the Borrowers, subject to Section 4.04, such payments will be applied
(conditional upon final collection) to the Obligations on the Business Day of
receipt by the Administrative Agent of immediately available funds in the
Administrative Agent's Account, provided such payments and notice thereof are
received in accordance with the Administrative Agent's usual and customary
practices as in effect from time to time and within sufficient time to credit
the Borrowers' Loan Account on such day, and if not, then on the next Business
Day.
(c) Each Loan Party and its respective directors, employees,
agents or Subsidiaries shall, acting as trustee for the Administrative Agent,
receive, as the property of the Administrative Agent, any monies, checks,
notes, drafts or any other payment relating to and/or proceeds of Accounts or
Inventory which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to be
deposited in the Cash Management Accounts, or remit the same or cause the same
to be remitted, in kind, to the Administrative Agent. In no event shall the
same be commingled with any Loan Party's own funds. The Borrowers agree to
reimburse the Administrative Agent on demand for any amounts owed or paid to
any bank or other financial institution at which a Cash Management Account or
any other deposit account or investment account is established or any other
bank, financial institution or other Person involved in the transfer of funds
to or from the Cash Management Accounts arising out of the Administrative
Agent's payments to or indemnification of such bank, financial institution or
other Person. The obligations of the Borrowers to reimburse the Administrative
Agent for such amounts pursuant to this Section 3.02 shall survive the
termination of this Agreement.
Section 3.03 Payments. All Obligations shall be payable to the
Administrative Agent's Payment Office or such other place as the
Administrative Agent may designate from time to time.
Section 3.04 Settlement Procedures. (a) In order to administer the
financing facility under this Agreement in an efficient manner and to minimize
the transfer of funds between the Administrative Agent and the Revolving A
Lenders, the Administrative Agent may, at its option, subject to the terms of
this Section, make available, on behalf of the Revolving A Lenders, the full
amount of the Revolving A Loans requested or charged to the Borrowers' Loan
Account(s) or otherwise to be advanced by the Revolving A Lenders pursuant to
the terms hereof, without requirement of prior notice to the Revolving A
Lenders of the proposed Revolving A Loans.
(b) With respect to all Revolving A Loans made by the
Administrative Agent on behalf of the Revolving A Lenders as provided in this
Section, the amount of each Revolving A Lender's Pro Rata Share of the
outstanding Revolving A Loans shall be computed weekly, and
57
shall be adjusted upward or downward on the basis of the amount of the
outstanding Revolving A Loans as of 5:00 p.m. New York time on the Business
Day immediately preceding the date of each settlement computation; provided,
that, the Administrative Agent retains the absolute right at any time or from
time to time to make the above described adjustments at intervals more
frequent than weekly, but in no event more than twice in any week. The
Administrative Agent shall deliver to each of the Revolving A Lenders after
the end of each week, or at such lesser period or periods as the
Administrative Agent shall determine, a summary statement of the amount of
outstanding Revolving A Loans for such period (such week or lesser period or
periods being hereinafter referred to as a "Settlement Period"). If the
summary statement is sent by the Administrative Agent and received by a
Revolving A Lender prior to 12:00 noon New York time, then such Revolving A
Lender shall make the settlement transfer described in this Section by no
later than 3:00 p.m. New York time on the same Business Day and if received by
a Revolving A Lender after 12:00 noon New York time, then such Revolving A
Lender shall make the settlement transfer by not later than 3:00 p.m. New York
time on the next Business Day following the date of receipt. If, as of the end
of any Settlement Period, the amount of a Revolving A Lender's Pro Rata Share
of the outstanding Revolving A Loans is more than such Revolving A Lender's
Pro Rata Share of the outstanding Revolving A Loans as of the end of the
previous Settlement Period, then such Revolving A Lender shall forthwith (but
in no event later than the time set forth in the preceding sentence) transfer
to the Administrative Agent by wire transfer in immediately available funds
the amount of the increase. Alternatively, if the amount of a Revolving A
Lender's Pro Rata Share of the outstanding Revolving A Loans in any Settlement
Period is less than the amount of such Revolving A Lender's Pro Rata Share of
the outstanding Revolving A Loans for the previous Settlement Period, the
Administrative Agent shall forthwith transfer to such Revolving A Lender by
wire transfer in immediately available funds the amount of the decrease. The
obligation of each of the Revolving A Lenders to transfer such funds and
effect such settlement shall be irrevocable and unconditional and without
recourse to or warranty by the Administrative Agent. The Administrative Agent
and each Revolving A Lender agrees to ▇▇▇▇ its books and records at the end of
each Settlement Period to show at all times the dollar amount of its Pro Rata
Share of the outstanding Revolving A Loans and Letter of Credit
Accommodations. Each Revolving A Lender shall only be entitled to receive
interest on its Pro Rata Share of the Revolving A Loans to the extent such
Revolving A Loans have been funded by such Revolving A Lender. Because the
Administrative Agent on behalf of Revolving A Lenders may be advancing and/or
may be repaid Revolving A Loans prior to the time when such Revolving A
Lenders will actually make Revolving A Loans and/or be repaid such Revolving A
Loans, interest with respect to Revolving A Loans shall be allocated by the
Administrative Agent in accordance with the amount of Revolving A Loans
actually advanced by and repaid to each Revolving A Lender and the
Administrative Agent and shall accrue from and including the date such
Revolving A Loans are so advanced to but excluding the date such Revolving A
Loans are either repaid by the Borrowers or actually settled with the
applicable Revolving A Lender as described in this Section.
(c) To the extent that the Administrative Agent has made any such
amounts available and the settlement described above shall not yet have
occurred, upon repayment of any Revolving A Loans by a Borrower, the
Administrative Agent may apply such amounts repaid directly to any amounts made
available by the Administrative Agent pursuant to this Section. In lieu of
weekly or more frequent settlements, the Administrative Agent may, at its
option, at any time require each Revolving A Lender to provide the
Administrative Agent with immediately
58
available funds representing its Pro Rata Share of each Revolving A Loans,
prior to the Administrative Agent's disbursement of such Revolving A Loans to
such Borrower. In such event, all Revolving A Loans shall be made by the
Lenders simultaneously and proportionately to their Pro Rata Shares. No
Revolving A Lender shall be responsible for any default by any other Revolving
A Lender in the other Revolving A Lender's obligation to make any Revolving A
Loans requested hereunder nor shall the Revolving A Credit Commitment of any
Revolving A Lender be increased or decreased as a result of the default by any
other Revolving A Lender in the other Revolving A Lender's obligation to make
any Revolving A Loans hereunder.
(d) If the Administrative Agent is not funding a particular
Revolving A Loan to the Borrowers (or to the Administrative Borrower for the
benefit of such Borrowers) pursuant to this Section on any day, the
Administrative Agent may assume that each Revolving A Lender will make
available to the Administrative Agent such Revolving A Lender's Pro Rata Share
of the Revolving A Loan requested or otherwise made on such day and the
Administrative Agent may, in its discretion, but shall not be obligated to,
cause a corresponding amount to be made available to or for the benefit of such
Borrowers on such day. If the Administrative Agent makes such corresponding
amount available to the Borrowers and such corresponding amount is not in fact
made available to the Administrative Agent by such Revolving A Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Revolving A Lender together with interest thereon for each day
from the date such payment was due until the date such amount is paid to the
Administrative Agent at the Federal Funds Rate for each day during such period
and if such amounts are not paid within three (3) days of the Administrative
Agent's demand, at the interest rate then applicable to Revolving A Loans.
During the period in which such Revolving A Lender has not paid such
corresponding amount to the Administrative Agent, notwithstanding anything to
the contrary contained in this Agreement or any of the other Loan Documents,
the amount of the Revolving A Loans so advanced by the Administrative Agent to
or for the benefit of any Borrower shall, for all purposes hereof, be deemed a
Revolving A Loan made by the Administrative Agent for its own account. Upon
any such failure by a Revolving A Lender to pay the Administrative Agent, the
Administrative Agent shall promptly thereafter notify the Administrative
Borrower of such failure and the Borrowers shall pay such corresponding amount
to the Administrative Agent for its own account within five (5) Business Days
of the Administrative Borrower's receipt of such notice. A Revolving A Lender
who fails to pay the Administrative Agent its Pro Rata Share of any Revolving A
Loans made available by the Administrative Agent on such Revolving A Lender's
behalf, or any Revolving A Lender who fails to pay any other amount owing by it
to the Administrative Agent, is a "Defaulting Lender". The Administrative
Agent shall not be obligated to transfer to a Defaulting Lender any payments
received by the Administrative Agent for the Defaulting Lender's benefit, nor
shall a Defaulting Lender be entitled to the sharing of any payments hereunder
(including any principal, interest or fees). Amounts payable to a Defaulting
Lender shall instead be paid to, or retained by, the Administrative Agent. The
Administrative Agent may hold and, in its discretion, relend to a Borrower the
amount of all such payments received or retained by it for the account of such
Defaulting Lender. For purposes of voting or consenting to matters with
respect to this Agreement and the other Loan Documents, and determining Pro
Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and
such Lender's Revolving A Credit Commitment shall be deemed to be zero. This
Section shall remain effective with respect to a Defaulting Lender until such
default is cured. The operation of this Section shall not be construed to
increase or otherwise affect the Revolving A Credit Commitment of any Revolving
59
A Lender, or relieve or excuse the performance by any Loan Party of its duties
and obligations hereunder.
(e) Nothing in this Section or elsewhere in this Agreement or the
other Loan Documents, shall be deemed to require the Administrative Agent to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its Commitment hereunder or to prejudice any rights that
the Borrowers may have against any Lender as a result of any default by any
Lender hereunder in fulfilling its Commitment.
ARTICLE IV.
FEES, PAYMENTS AND OTHER COMPENSATION
Section 4.01 Audit and Collateral Monitoring Fees. The Borrowers
acknowledge that pursuant to Section 7.01(f), representatives of any Agent may
visit any or all of the Loan Parties and/or conduct audits, inspections,
valuations and/or field examinations of any or all of the Loan Parties at any
time and from time to time in a manner so as to not unduly disrupt the
business of the Loan Parties. The Borrowers agree to pay (i) $1,000 per day
per examiner plus the examiner's reasonable out-of-pocket costs and expenses
incurred in connection with all such visits, audits, inspections, valuations
and field examinations and (ii) the reasonable cost of all visits, audits,
inspections, valuations and field examinations conducted by a third party on
behalf of the Collateral Agent.
Section 4.02 Payments; Computations and Statements. (a) The Borrowers
will make each payment under this Agreement not later than 12:00 noon (New
York City time) on the day when due, in lawful money of the United States of
America and in immediately available funds, to the Administrative Agent's
Account. All payments received by the Administrative Agent after 12:00 noon
(New York City time) on any Business Day will be credited to the Loan Account
on the next succeeding Business Day. All payments shall be made by the
Borrowers without set-off, counterclaim, deduction or other defense to the
Agents and the Lenders. Except as provided in Section 3.04, after receipt, the
Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal ratably to the Lenders in
accordance with their Pro Rata Shares and like funds relating to the payment
of any other amount payable to any Lender to such Lender, in each case to be
applied in accordance with the terms of this Agreement, provided that the
Administrative Agent will cause to be distributed all interest and fees
received from or for the account of the Borrowers not less than once each
month and in any event promptly after receipt thereof. The Lenders and the
Borrowers hereby authorize the Administrative Agent to, and the Administrative
Agent may, from time to time, charge the Loan Account of the Borrowers with
any amount due and payable by the Borrowers under any Loan Document. Each of
the Lenders and the Borrowers agrees that the Administrative Agent shall have
the right to make such charges whether or not any Default or Event of Default
shall have occurred and be continuing or whether any of the conditions
precedent in Section 5.02 have been satisfied. Any amount charged to the Loan
Account of the Borrowers shall be deemed a Revolving A Loan hereunder made by
the Revolving A Lenders to the Borrowers, funded by the Administrative Agent
on behalf of the Lenders and subject to Section 3.04 of this Agreement. The
Lenders and the Borrowers confirm that any charges which the Administrative
Agent may so make to the Loan Account of the Borrowers as herein provided will
be made as an
60
accommodation to the Borrowers and solely at the Administrative Agent's
discretion, provided that the Administrative Agent shall from time to time
upon the request of the Collateral Agent (to the extent that (i) there exists
no Event of Default, (ii) such charge does not exceed the current Availability
and (iii) the applicable amount is otherwise permitted to be made in
accordance with the terms of this Agreement or any other Loan Document),
charge the Loan Account of the Borrowers with any amount due and payable under
any Loan Document. Whenever any payment to be made under any such Loan
Document shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and such extension
of time shall in such case be included in the computation of interest or fees,
as the case may be. All computations of fees shall be made by the
Administrative Agent on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such fees are payable. Each determination by the
Administrative Agent of an interest rate or fees hereunder shall be conclusive
and binding for all purposes in the absence of manifest error.
(b) The Administrative Agent shall provide the Administrative
Borrower, promptly after the end of each calendar month, a summary statement
(in the form from time to time used by the Administrative Agent) of the opening
and closing daily balances in the Loan Account of the Borrowers during such
month, the amounts and dates of all Loans made to the Borrowers during such
month, the amounts and dates of all payments on account of the Loans to the
Borrowers during such month and the Loans to which such payments were applied,
the amount of interest accrued on the Loans to the Borrowers during such month,
any Letter of Credit Accommodations issued by the L/C Issuer for the account of
the Borrowers during such month, specifying the face amount thereof, the amount
of charges to the Loan Account and/or Loans made to the Borrowers during such
month to reimburse the Lenders for drawings made under Letter of Credit
Accommodations, and the amount and nature of any charges to the Loan Account
made during such month on account of fees, commissions, expenses and other
Obligations. All entries on any such statement shall be presumed to be correct
and, thirty (30) days after the same is sent, shall be final and conclusive
absent manifest error.
Section 4.03 Sharing of Payments, Etc. Except as provided in Section
3.04 hereof, if any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of any Obligation in excess of its ratable share of payments on
account of similar obligations obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in such similar
obligations held by them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender of
any interest or other amount paid by the purchasing Lender in respect of the
total amount so recovered). The Borrowers agree that any Lender so purchasing
a participation from another Lender pursuant to this Section 4.03 may, to the
fullest extent permitted by law, exercise all of its rights (including the
Lender's right of set-off) with respect to such participation as fully as if
such Lender were the direct creditor of the Borrowers in the amount of such
participation.
61
Section 4.04 Apportionment of Payments. Subject to Section 3.04 hereof
and to any written agreement among the Administrative Agent and/or the Lenders:
(a) All payments of principal and interest in respect of
outstanding Loans, all payments in respect of the Letter of Credit
Accommodations, all payments of fees (other than the fees set forth in Section
2.06 hereof, fees with respect to Letter of Credit Accommodations provided for
in Section 3.01(b) and the audit and collateral monitoring fee provided for in
Section 4.01, in each case, to the extent set forth in a written agreement
among the Administrative Agent and the Lenders) and all other payments in
respect of any other Obligations, shall be allocated by the Administrative
Agent among such of the Lenders as are entitled thereto, in proportion to their
respective Pro Rata Shares or otherwise as provided herein or, in respect of
payments not made on account of Loans or Letter of Credit Obligations, as
designated by the Person making payment when the payment is made.
(b) (1) After the occurrence and during the continuance of an
Event of Default, the Administrative Agent may, and upon the direction of the
Required A Lenders shall, notwithstanding any terms to the contrary set for in
this Agreement or any other Loan Document apply all payments in respect of any
Obligations (other than proceeds of Fixed Asset Collateral) and all proceeds of
the Current Asset Collateral, (i) first, ratably to pay the Obligations in
respect of any fees (including any fees or charges assessed by the L/C Issuer),
expense reimbursements, indemnities and other amounts then due to the
Administrative Agent or the L/C Issuer until paid in full; (ii) second, ratably
to pay the Obligations in respect of any fees (including Letter of Credit Fees
payable to the Revolving A Lenders), expense reimbursements and indemnities
then due to the Revolving A Lenders until paid in full; (iii) third, ratably to
pay interest due in respect of the Administrative Agent Advances until paid in
full; (iv) fourth, ratably to pay principal of the Administrative Agent
Advances until paid in full; (v) fifth, ratably to pay interest due in respect
of the Revolving A Loans and Letter of Credit Obligations until paid in full;
(vi) sixth, ratably to pay principal of the Revolving A Loans and Letter of
Credit Obligations (or, to the extent such Letter of Credit Obligations are
contingent to provide cash collateral in an amount up to 105% of such Letter of
Credit Obligations which collateral shall be released upon all such Events of
Default ceasing to continue) until paid in full; (vii) seventh, ratably to pay
the Obligations in respect of any fees, expense reimbursements and indemnities
then due to the B-Lenders until paid in full; (viii) eighth, ratably to pay
interest due in respect of the B-Loans until paid in full; (ix) ninth, ratably
to pay principal of the B-Loans until paid in full; and (x) tenth, to the
ratable payment of all other Obligations then due and payable.
(2) After the occurrence and during the continuance
of an Event of Default, the Administrative Agent may, and upon the direction of
the Required B Lenders shall, notwithstanding any terms to the contrary set for
in this Agreement or any other Loan Document apply all proceeds of the Fixed
Asset Collateral: (i) first, ratably to pay interest due in respect of the B-
Loans until paid in full; (ii) second, ratably to pay principal of the B-Loans
until paid in full, (iii) third, ratably to pay the Obligations in respect of
any fees, expense reimbursements and indemnities then due to the B-Lenders
until paid in full; and (iv) thereafter, in the order specified in Section
4.02(b)(i).
(c) In each instance, so long as no Event of Default has occurred
and is continuing, Section 4.04(b) shall not be deemed to apply to any payment
by the Borrowers
62
specified by the Administrative Borrower to the Administrative Agent to be for
the payment of the principal of or interest on the B-Loans or other related
Obligations then due and payable under any provision of this Agreement or the
payment of all or part of the principal of the B-Loans in accordance with the
terms and conditions of Section 2.05.
(d) For purposes of Section 4.04(b) (other than clause (x) of
Section 4.04(b)), "paid in full" means payment of all amounts owing under the
Loan Documents according to the terms thereof, including loan fees, service
fees, professional fees, interest (and specifically including interest accrued
after the commencement of any Insolvency Proceeding), default interest,
interest on interest, and expense reimbursements, except to the extent that
default or overdue interest (but not any other interest), loan fees, service
fees, professional fees, expense reimbursements, or other fees and expenses,
each arising from or related to a default are disallowed in any Insolvency
Proceeding, and, for purposes of clause (x) of Section 4.04(b), "paid in full"
means payment of all amounts owing under the Loan Documents according to the
terms thereof, including loan fees, service fees, professional fees, interest
(and specifically including interest accrued after the commencement of any
Insolvency Proceeding), default interest, interest on interest, and expense
reimbursements, whether or not any of the foregoing would be or is allowed or
disallowed in whole or in part in any Insolvency Proceeding.
Section 4.05 Increased Costs and Reduced Return.
(a) If any Lender, any Agent or the L/C Issuer shall have
determined that the adoption or implementation of, or any change in, any law,
rule, treaty or regulation, or any policy, guideline or directive of, or any
change in, the interpretation or administration thereof by, any court, central
bank or other administrative or Governmental Authority, or compliance by any
Lender, any Agent or the L/C Issuer or any Person controlling any such Lender,
such Agent or the L/C Issuer with any directive of, or guideline from, any
central bank or other Governmental Authority or the introduction of, or change
in, any accounting principles applicable to any Lender, such Agent or the
L/C Issuer or any Person controlling any such Lender, such Agent or the
L/C Issuer (in each case, whether or not having the force of law) (each, a
"Change in Law"), shall (i) subject such Lender, such Agent or the L/C Issuer,
or any Person controlling such Lender, such Agent or the L/C Issuer to any tax,
duty or other charge with respect to this Agreement or any Loan made by such
Lender or such Agent or any Letter of Credit Accommodation issued by the
L/C Issuer, or change the basis of taxation of payments to such Lender, such
Agent or the L/C Issuer or any Person controlling any such Lender, such Agent
or the L/C Issuer of any amounts payable hereunder (except for taxes on the
overall net income of such Lender, such Agent or the L/C Issuer or any Person
controlling such Lender, such Agent or the L/C Issuer), (ii) impose, modify or
deem applicable any reserve, special deposit or similar requirement against any
Loan, any Letter of Credit Accommodation or against assets of or held by, or
deposits with or for the account of, or credit extended by, such Lender, such
Agent or the L/C Issuer or any Person controlling such Lender, such Agent or
the L/C Issuer or (iii) impose on such Lender, such Agent or the L/C Issuer or
any Person controlling such Lender, such Agent or the L/C Issuer any other
condition regarding this Agreement or any Loan or Letter of Credit
Accommodation, and the result of any event referred to in clauses (i), (ii) or
(iii) above shall be to increase the cost to such Lender, such Agent or the
L/C Issuer of making any Loan, issuing, guaranteeing or participating in any
Letter of Credit Accommodation, or agreeing to make any Loan or issue, guaranty
or participate in any Letter of Credit Accommodation, or to reduce any
63
amount received or receivable by such Lender, such Agent or the L/C Issuer
hereunder, then, upon demand by such Lender, such Agent or the L/C Issuer, the
Borrowers shall pay to such Lender, such Agent or the L/C Issuer such
additional amounts as will compensate such Lender, such Agent or the L/C
Issuer for such increased costs or reductions in amount.
(b) If any Lender, any Agent or the L/C Issuer shall have
determined that any Change in Law related to any Capital Guideline, either
(i) affects or would affect the amount of capital required or expected to be
maintained by such Lender, such Agent or the L/C Issuer or any Person
controlling such Lender, such Agent or the L/C Issuer, and such Lender, such
Agent or the L/C Issuer determines that the amount of such capital is increased
as a direct or indirect consequence of any Loans made or maintained, Letter of
Credit Accommodations issued or any guaranty or participation with respect
thereto, such Lender's, such Agent's or the L/C Issuer's or any such other
controlling Person's other obligations hereunder, or (ii) has or would have the
effect of reducing the rate of return on such Lender's, such Agent's or the
L/C Issuer's any such other controlling Person's capital to a level below that
which such Lender, such Agent or the L/C Issuer or such controlling Person
could have achieved but for such circumstances as a consequence of any Loans
made or maintained, Letter of Credit Accommodations issued, or any guaranty or
participation with respect thereto or any agreement to make Loans, to issue
Letter of Credit Accommodations or such Lender's, such Agent's or the
L/C Issuer's or such other controlling Person's other obligations hereunder (in
each case, taking into consideration, such Lender's, such Agent's or the
L/C Issuer's or such other controlling Person's policies with respect to
capital adequacy), then, upon demand by such Lender, such Agent or the
L/C Issuer, the Borrowers shall pay to such Lender, such Agent or the
L/C Issuer from time to time such additional amounts as will compensate such
Lender, such Agent or the L/C Issuer for such cost of maintaining such
increased capital or such reduction in the rate of return on such Lender's,
such Agent's or the L/C Issuer's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear
interest from the date that is ten (10) days after the date of demand by any
Lender, any Agent or the L/C Issuer until payment in full to such Lender, such
Agent or the L/C Issuer at the Reference Rate. A certificate of such Lender,
such Agent or the L/C Issuer claiming compensation under this Section 4.05,
specifying the event herein above described and the nature of such event shall
be submitted by such Lender, such Agent or the L/C Issuer to the Administrative
Borrower, setting forth the additional amount due (the calculation thereof to
be in reasonable detail) and an explanation of the calculation thereof, and
such Lender's, such Agent's or the L/C Issuer's reasons for invoking the
provisions of this Section 4.05, and shall be final and conclusive absent
manifest error.
(d) If any Lender, any Agent or the L/C Issuer requests
compensation under this Section 4.05, or if the Borrowers are or would be
required to pay any additional amount to any Lender, any Agent or the L/C
Issuer pursuant to this Section 4.05, then such Lender, such Agent or the L/C
Issuer shall use commercially reasonable efforts to designate a different
lending office for funding or booking its Loans and/or Letter of Credit
Accommodations hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such Agent or the L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to this Section 4.05 in the future
and (ii) would not subject such Lender, such Agent or the L/C Issuer to any
unreimbursed cost or
64
expense and would not otherwise be disadvantageous to such Lender, such Agent
or the L/C Issuer. The Borrowers hereby agree to pay all reasonable cost and
expenses incurred by any Lender, any Agent or the L/C Issuer in connection
with any such designation or assignment.
Section 4.06 Joint and Several Liability of the Borrowers. (a)
Notwithstanding anything in this Agreement or any other Loan Document to the
contrary, each of the Borrowers hereby accepts joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Agents and the Lenders under this
Agreement and the other Loan Documents, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the undertakings
of the other Borrowers to accept joint and several liability for the
Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this Section 4.06), it being the
intention of the parties hereto that all of the Obligations shall be the joint
and several obligations of each of the Borrowers without preferences or
distinction among them. If and to the extent that any of the Borrowers shall
fail to make any payment with respect to any of the Obligations as and when
due or to perform any of the Obligations in accordance with the terms thereof,
then in each such event, the other Borrowers will make such payment with
respect to, or perform, such Obligation. Subject to the terms and conditions
hereof, the Obligations of each of the Borrowers under the provisions of this
Section 4.06 constitute the absolute and unconditional, full recourse
Obligations of each of the Borrowers, enforceable against each such Person to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement, the other Loan Documents or
any other circumstances whatsoever.
(b) The provisions of this Section 4.06 are made for the benefit
of the Agents, the Lenders and their successors and assigns, and may be
enforced by them from time to time against any or all of the Borrowers as often
as occasion therefor may arise and without requirement on the part of the
Agents, the Lenders or such successors or assigns first to marshal any of its
or their claims or to exercise any of its or their rights against any of the
other Borrowers or to exhaust any remedies available to it or them against any
of the other Borrowers or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy. The
provisions of this Section 4.06 shall remain in effect until all of the
Obligations shall have been paid in full or otherwise fully satisfied.
(c) Each of the Borrowers hereby agrees that it will not enforce
any of its rights of contribution or subrogation against the other Borrowers
with respect to any liability incurred by it hereunder or under any of the
other Loan Documents, any payments made by it to the Agents or the Lenders with
respect to any of the Obligations or any Collateral, until such time as all of
the Obligations have been paid in full in cash. Any claim which any Borrower
may have against any other Borrower with respect to any payments to the Agents
or the Lenders hereunder or under any other Loan Documents are hereby expressly
made subordinate and junior in right of payment, without limitation as to any
increases in the Obligations arising hereunder or thereunder, to the prior
payment in full in cash of the Obligations.
65
ARTICLE V.
CONDITIONS TO LOANS
Section 5.01 Conditions Precedent to Effectiveness of the Prior
Financing Agreement. The Prior Financing Agreement became effective on the
Effective Date when each of the following conditions precedent was satisfied in
a manner satisfactory to the Administrative Agent or waived by the
Administrative Agent:
(a) Payment of Fees, Etc. The Borrowers paid on or before the
Effective Date (i) all invoiced fees, costs, expenses and taxes then payable
pursuant to Section 2.06 and Section 12.04 (including, without limitation, the
invoiced fees and expenses of Hilco and First America Title Insurance Company).
(b) Representations and Warranties; No Event of Default. The
following statements were true and correct: (i) the representations and
warranties contained in ARTICLE VI and in each other Loan Document, certificate
or other writing delivered to any Agent, any Lender or the L/C Issuer pursuant
hereto or thereto on or prior to the Effective Date were true and correct on
and as of the Effective Date as though made on and as of such date and (ii) no
Default or Event of Default shall have occurred and be continuing on the
Effective Date or would result from this Agreement or the other Loan Documents
becoming effective in accordance with its or their respective terms.
(c) Legality. The making of the initial Loans or the issuance of
any Letter of Credit Accommodations did not contravene any law, rule or
regulation applicable to any Agent, any Lender or the L/C Issuer.
(d) Delivery of Documents. The Collateral Agent received on or
before the Effective Date the following, each in form and substance reasonably
satisfactory to the Collateral Agent and, unless indicated otherwise, dated the
Effective Date:
(i) a Security Agreement, duly executed by each Domestic
Loan Party (which shall include a grant of a Lien on all of the Domestic Loan
Parties' joint venture, partnership or limited liability company interests of
such Domestic Loan Party in Persons that are not its Subsidiaries directly
owned by such Domestic Loan Party, in each case to the extent such Lien is
permitted taking into account applicable law, including, without limitation,
the Uniform Commercial Code);
(ii) (A) a Pledge Agreement, duly executed by each Loan
Party, together with the original stock certificates representing (x) all of
the Capital Stock of (I) such Loan Party's wholly-owned Domestic Subsidiaries
(other than Inactive Subsidiaries) and (II) Milacron Capital and (y) 65% of the
voting Capital Stock of such Loan Party's directly owned Foreign Subsidiaries
(to the extent permissible taking into account applicable law), other than ▇-▇-
E (Hong Kong) Limited, Japan D-M-E Corporation and Ferromatik Milacron India
Limited, and all intercompany promissory notes of such Loan Parties,
accompanied by undated stock powers executed in blank and/or other proper
instruments of transfer and (B) a Pledge Agreement, duly executed by Milacron
Capital in respect of its pledge of 65% of the voting
66
Capital Stock of Milacron B.V., which, in the case of this clause (B) complies
with the requirements of law of The Netherlands;
(iii) a Mortgage, duly executed by the applicable Loan Party,
with respect to each Facility and in a suitable form for recording in an
appropriate office;
(iv) a Title Insurance Policy with respect to each Mortgage,
dated as of the Effective Date;
(v) a survey of each Facility subject to a Mortgage, in
form and substance reasonably satisfactory to the Collateral Agent; provided
that a survey shall not be required for the Facilities located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇;
(vi) a UCC Filing Authorization Letter, duly executed by
each Loan Party, together with appropriate financing statements on Form UCC (or
similar financing statements or filings in any foreign jurisdiction) duly filed
in such office or offices as may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the security interests purported to be
created by each Security Agreement and each Pledge Agreement;
(vii) certified copies of information listing all effective
financing statements which name as debtor any Loan Party and which are filed in
the offices referred to in paragraph (vii) above, together with copies of such
financing statements (or similar filings in any foreign jurisdiction), none of
which, except as otherwise agreed in writing by the Administrative Agent, shall
cover any of the Collateral and the results of searches for any tax Lien and
judgment Lien filed against such Person or its property, which results, except
as otherwise agreed to in writing by the Administrative Agent, shall not show
any such Liens other than Permitted Liens;
(viii)a copy of the resolutions of each Loan Party, certified
as of the Effective Date by an Authorized Officer thereof, authorizing (A) the
borrowings hereunder (in the case of the Borrowers) and the transactions
contemplated by the Loan Documents to which such Loan Party is or will be a
party, and (B) the execution, delivery and performance by such Loan Party of
each Loan Document to which such Loan Party is or will be a party and the
execution and delivery of the other documents to be delivered by such Person in
connection herewith and therewith;
(ix) a certificate of an Authorized Officer of each Loan
Party, certifying the names and true signatures of the representatives of such
Loan Party authorized to sign each Loan Document to which such Loan Party is or
will be a party and the other documents to be executed and delivered by such
Loan Party in connection herewith and therewith, together with evidence of the
incumbency of such authorized officers;
(x) a certificate of the appropriate official(s) of the
state or other applicable jurisdiction of organization certifying as to the
good standing of, and the payment of taxes by (if issued by such state or other
applicable jurisdiction), such Loan Party in such state or other applicable
jurisdiction, and each material state of foreign qualification of each Loan
Party certifying as to the qualification of such Loan Party to do business in
each such state and, in each case, certified as of a recent date not more than
30 days prior to the Effective Date, together, if
67
requested by the Collateral Agent, with confirmation by telephone or telecopy
(where available) on the Effective Date from such official(s) as to such
matters;
(xi) a true and complete copy (or abstract, as applicable)
of the charter, certificate of formation, certificate of limited partnership or
other publicly filed organizational document of each Loan Party and Milacron
B.V. certified as of a recent date not more than 30 days prior to the Effective
Date by an appropriate official of the state or other applicable jurisdiction
of organization of such Loan Party which shall set forth the same complete name
of such Person as is set forth herein and the organizational number of such
Person, if an organizational number is issued in such jurisdiction;
(xii) a copy of the charter and by-laws, limited liability
company agreement, operating agreement, agreement of limited partnership or
other organizational document of each Loan Party and Milacron B.V., together
with all amendments thereto, certified as of the Effective Date by an
Authorized Officer of such Loan Party;
(xiii)(A) an opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, special
New York counsel to the Administrative Borrower, substantially in the form of
Exhibit F (including, without limitation, an opinion that the incurrence of the
Indebtedness evidenced by this Agreement and the granting of the Liens in favor
of the Collateral Agent to secure such Indebtedness (including, without
limitation, the granting of Liens on the Facilities) does not require the
granting of an equal and ratable Lien with any agent under the Euro Indenture
for the benefit of the Euro Note Holders pursuant to the express terms and
conditions thereof), (B) an opinion of ▇▇▇▇ ▇'▇▇▇▇▇▇▇, general counsel of the
Administrative Borrower, (C) an opinion of ▇▇▇▇ ▇▇▇▇▇, patent counsel of the
Administrative Borrower, (D) an opinion of local counsel in respect of UCC
filings to be made pursuant to Section 5.01(d)(vii) and other appropriate
matters in Delaware, Illinois, Michigan, Massachusetts, Minnesota and Ohio, (E)
an opinion of local counsel to the applicable Loan Parties, in the local
jurisdictions where the Facilities are located, and (F) an opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the applicable Loan Parties in respect of the Pledge
Agreements to be executed and delivered pursuant to Section 5.01(d)(ii)(B), in
each case as to such other customary matters as the Collateral Agent may
reasonably request;
(xiv) a certificate of an Authorized Officer of each Loan
Party, certifying as to the matters set forth in subsection (b) of this Section
5.01;
(xv) a copy of the Financial Statements and the financial
projections described in Section 6.01(g)(ii) hereof, certified as of the
Effective Date as true and correct, in all material respects, by the chief
financial officer of the Parent, and, in the case of such financial
projections, that such projections are believed at the time to be reasonable,
are prepared in good faith and are based on assumptions, methods and tests
stated therein which were believed to be reasonable at the time prepared and
upon information believed to have been accurate based upon the information
available at the time such projections were prepared and that there are no
facts or information that would lead the Person certifying to such projections,
to believe that such projections are in correct or misleading in any material
respect;
(xvi) evidence of the insurance coverage required by Section
7.01(h) and the terms of each Security Agreement and each Mortgage and such
other insurance coverage
68
with respect to the business and operations of the Loan Parties as the
Collateral Agent may reasonably request, in each case, where requested by the
Collateral Agent, with such endorsements as to the named insureds or loss
payees thereunder (in the case of liability and property insurance) as the
Collateral Agent may request and providing that such policy may be terminated
or canceled (by the insurer or the insured thereunder) only upon 30 days'
prior written notice to the Collateral Agent and each such named insured or
loss payee, together with evidence of the payment of all premiums due in
respect thereof for such period as the Collateral Agent may request;
(xvii)a certificate of an Authorized Officer of the
Administrative Borrower, certifying the names and true signatures of the
persons that are authorized to provide Notices of Borrowing and all other
notices under this Agreement and the other Loan Documents;
(xviii)Landlord Waiver, Bailee Letter and/or similar
collateral access agreements, in each case, in form and substance reasonably
satisfactory to the Collateral Agent and which may be included as a provision
contained in the relevant Lease or other agreement, executed by each landlord
and/or bailee with respect to each of the Leases set forth on Schedule 6.01(o),
it being understood that (A) the failure to obtain such waivers, letters and/or
agreements on or prior to the Effective Date will not result in a failure to
satisfy a condition precedent to the effectiveness of this Agreement or an
Event of Default, provided, that the Borrowers have used reasonable effects to
obtain such waivers, letters and/or agreements, and (B) the Administrative
Agent shall have the right to establish customary Reserves for the failure to
obtain such waivers, letters and/or agreements;
(xix) copies of the Euro Indenture and the other Material
Contracts as in effect on the Effective Date, certified as true and correct
copies thereof by an Authorized Officer of the Administrative Borrower,
together with a certificate of an Authorized Officer of the Administrative
Borrower stating that such agreements remain in full force and effect, have not
been otherwise amended or modified, and that none of the Loan Parties is in
breach or default in any of its obligations under such agreements, other than
breaches or defaults that, individually and in the aggregate, are of immaterial
obligations thereunder;
(xx) a termination and release agreement with respect to the
Existing Credit Facility and all related documents, duly executed by the
applicable Loan Parties and the Existing Agent, on behalf of itself and the
Existing Lenders and authorization by the Existing Agent to the Administrative
Agent to file UCC termination statements for all UCC financing statements filed
by the Existing Agent, on behalf of the Existing Lenders, and covering any
portion of the Collateral;
(xxi) a termination and release agreement with respect to the
Existing Receivables Facility and all related agreements, instruments or other
documents, duly executed by the parties necessary to terminate such facility;
(xxii) the Intercompany Subordination Agreement, duly executed
by each Loan Party and its Subsidiaries; and
69
(xxiii) such other agreements, instruments, approvals,
opinions and other documents, each reasonably satisfactory to the Collateral
Agent in form and substance, as the Collateral Agent may reasonably request.
(e) Availability. After giving effect to all Loans to be made on
the Effective Date and the Letter of Credit Accommodations to be issued on the
Effective Date, after giving effect to the Mizuho/Glencore Transactions and the
refinancing of the Parent's 8-3/8% Notes due 2004, (i) the sum of (A)
Availability plus (B) unrestricted cash and cash equivalents (as defined in the
Parent's most recent financial statements) of the Parent and its consolidated
Subsidiaries, shall not be less than $50,000,000, (ii) the sum of (A)
Availability plus (B) cash and cash equivalents of the Loan Parties in the
United States shall not be less than $20,000,000 and (iii) all reserves
established for accounts payable of the Loan Parties that are past due shall be
in accordance with recent historical standards. The Parent shall deliver to
the Collateral Agent a certificate of the chief financial officer of the Parent
certifying as to the matters set forth in clauses (i), (ii) and (iii) above and
containing the calculation of Availability.
(f) Material Adverse Effect. The Administrative Agent shall have
determined, in its reasonable discretion, that since December 31, 2003, no
Material Adverse Effect shall have occurred or become known to any Agent.
(g) Approvals. (i) All necessary consents, authorizations and
approvals of, and filings and registrations with, and all other actions in
respect of, any Governmental Authority or other Person required in connection
with the making of the Loans shall have been obtained and shall be in full
force and effect (other than consents, authorizations and approval of, and
filings and registrations with, and all other actions in respect of any Person
in connection with the granting of a Lien on immaterial (A) joint venture
interests, (B) intellectual property licenses and (C) other contractual rights
of the Loan Parties) and (ii) all necessary consents, authorizations and
approvals of, and filings and registrations with, and all other actions in
respect of, any Governmental Authority and all material consents,
authorizations and approvals of, and filings and registrations with, and all
other actions in respect of, any other Person required in connection with the
conduct of the Loan Parties' business.
(h) Proceedings; Receipt of Documents. All proceedings in
connection with the making of the initial Loans or the issuance of the initial
Letter of Credit Accommodations and the other transactions contemplated by this
Agreement and the other Loan Documents, and all documents incidental hereto and
thereto, shall be reasonably satisfactory to the Collateral Agent and its
counsel, and the Collateral Agent and such counsel shall have received all such
information and such counterpart originals or certified or other copies of such
documents as the Collateral Agent or such counsel may reasonably request.
(i) Due Diligence. The Agents shall have completed their legal
and collateral due diligence with respect to each Loan Party and the results
thereof shall be reasonably satisfactory to the Agents.
(j) Financial Assistance. The Administrative Borrower shall
deliver to the Collateral Agent a certificate of an Authorized Officer of the
Administrative Borrower certifying that (i) the Loans are not being used to
subscribe for or acquire shares of Milacron Capital or
70
Milacron B.V. or to refinance existing Indebtedness used for such purpose. The
Collateral Agent shall be reasonably satisfied that the Dutch financial
assistance rules do not apply to the pledge of the Capital Stock of Milacron
Capital or Milacron B.V.
(k) Fanuc. The Collateral Agent shall have received a
certificate of the Parent certifying that the Fanuc Agreement shall be in full
force and effect and existing on terms and conditions that are consistent in
all material respects with the existing terms and conditions applicable thereto
on or prior to December 23, 2003.
(l) Investment Banker. The Parent shall have engaged an
investment banker reasonably acceptable to the Administrative Agent in
connection with the proposed issuance of debt or equity securities (the
"Securities") in order to, among other things, repay the B-Loans.
(m) Mizuho/Glencore Transactions. The Parent shall have received
cash proceeds pursuant to the Mizuho/Glencore Transaction Documents of
$100,000,000 (before taking into account any debt or expenses to be paid with
the proceeds thereof).
Section 5.02 Conditions Precedent to All Loans and Letter of Credit
Accommodations. The obligation of any Agent or any Lender to make any Loan or
of the Administrative Agent to assist the Borrowers in establishing or opening
any Letter of Credit Accommodation on or after the Effective Date is subject
to the fulfillment, in a manner satisfactory to the Administrative Agent, of
each of the following conditions precedent:
(a) Payment of Fees, Etc. The Borrowers shall have paid all
fees, costs, expenses and taxes then payable by the Borrowers pursuant to this
Agreement and the other Loan Documents, including, without limitation, Section
2.06 and Section 12.04 hereof.
(b) Representations and Warranties; No Event of Default. The
following statements shall be true and correct, and the submission by the
Administrative Borrower to the Administrative Agent of a Notice of Borrowing
with respect to each such Loan, and the Borrowers' acceptance of the proceeds
of such Loan, and the issuance of each Letter of Credit Accommodation, shall
each be deemed to be a representation and warranty by each Loan Party on the
date of such Loan or the date of issuance of such Letter of Credit
Accommodation that: (i) the representations and warranties contained in
ARTICLE VI and in each other Loan Document, certificate or other writing
delivered to any Agent or any Lender pursuant hereto or thereto on or prior to
the date of such Loan or such Letter of Credit Accommodation are true and
correct on and as of such date as though made on and as of such date, (ii) at
the time of and after giving effect to the making of such Loan and the
application of the proceeds thereof or at the time of issuance of such Letter
of Credit Accommodation, no Default or Event of Default has occurred and is
continuing or would result from the making of the Loan to be made, or the
issuance of such Letter of Credit Accommodation to be issued, on such date and
(iii) the conditions set forth in this Section 5.02 have been satisfied as of
the date of such request.
(c) Legality. The making of such Loan or the issuance of such
Letter of Credit Accommodation shall not contravene any law, rule or regulation
applicable to any Agent, any Lender or the L/C Issuer.
71
(d) Notices. The Administrative Agent shall have received a
Notice of Borrowing pursuant to Section 2.02 hereof.
Section 5.03 Conditions Precedent to Effectiveness of this Agreement.
This Agreement became effective as of the date hereof when each of the following
conditions precedent was satisfied in a manner satisfactory to the
Administrative Agent or waived by the Administrative Agent:
(a) Representations and Warranties; No Event of Default. The
following statements are true and correct: (i) the representations and
warranties contained in ARTICLE VI and in each other Loan Document, certificate
or other writing delivered to any Agent, any Lender or the L/C Issuer pursuant
hereto or thereto on or prior to the date hereof are true and correct on and as
of the date hereof a though made on and as of such date and (ii) no Default or
Event of Default shall have occurred and be continuing on the date hereof or
would result from this Agreement or the other Loan Documents becoming effective
in accordance with its or their respective terms.
(b) Delivery of Documents. The Collateral Agent received on or
before the date hereof the following, each in form and substance reasonably
satisfactory to the Collateral Agent and, unless indicated otherwise, dated the
Effective Date:
(i) an amendment and restatement of the Subordination and
Intercreditor Agreement, duly executed by each of the parties thereto and
acknowledged by the Administrative Borrower; and
(ii) a Borrowing Base Certificate in form and substance
reasonably satisfactory to the Collateral Agent.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties. Each Loan Party hereby
represents and warrants to the Agents, the Lenders and the L/C Issuer as
follows:
(a) Organization, Good Standing, Etc. Each Loan Party (i) is a
corporation, limited liability company or limited partnership duly organized,
validly existing and in good standing under the laws of the state, province or
other applicable jurisdiction of its organization, (ii) has all requisite power
and authority to conduct its business as now conducted and as presently
contemplated and, in the case of the Borrowers, to make the borrowings
hereunder, and to execute and deliver each Loan Document to which it is a
party, and to consummate the transactions contemplated thereby, and (iii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where
the absence of any such qualification could not reasonably be expected to
result in a Material Adverse Effect.
72
(b) Authorization, Etc. The execution, delivery and performance
by each Loan Party of each Loan Document to which it is or will be a party, (i)
have been duly authorized by all necessary action, (ii) do not and will not
contravene its (x) charter or by-laws, its limited liability company or
operating agreement or its certificate of partnership or partnership agreement,
as applicable, or (y) any material applicable law or any material contractual
restriction binding on or otherwise affecting it or any of its properties
(including, without limitation, the Euro Indenture), (iii) do not and will not
result in or require the creation of any Lien (other than pursuant to any Loan
Document) upon or with respect to any of its properties, other than Liens
securing obligations in an aggregate amount not exceeding $100,000, and (iv) do
not and will not result in any default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any material permit, license,
authorization or approval applicable to its operations or any of its
properties.
(c) Governmental Approvals. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority is
required in connection with the due execution, delivery and performance by any
Loan Party of any Loan Document to which it is or will be a party, other than
(i) those that have been obtained or made and are in full force and effect and
(ii) filings necessary to perfect Liens on the Collateral.
(d) Enforceability of Loan Documents. This Agreement is, and
each other Loan Document to which any Loan Party is or will be a party, when
delivered hereunder, will be, a legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
(e) Subsidiaries. Schedule 6.01(e) is a complete and correct
description of the name, jurisdiction of incorporation and ownership of the
outstanding Capital Stock of the Subsidiaries of the Parent in existence on the
date of this Agreement. Except as described in Schedule 6.01(e), all of the
issued and outstanding shares of Capital Stock of such Subsidiaries have been
validly issued and are fully paid and nonassessable, and the holders thereof
are not entitled to any preemptive, first refusal or other similar rights.
Except as indicated on such Schedule, all such Capital Stock is owned by the
Parent or one or more of its wholly-owned Subsidiaries, free and clear of all
Liens and there are no outstanding debt or equity securities of the Parent or
any of its Subsidiaries and no outstanding obligations of the Parent or any of
its Subsidiaries convertible into or exchangeable for, or warrants, options or
other rights for the purchase or acquisition from the Parent or any of its
Subsidiaries, or other obligations of any Subsidiary to issue, directly or
indirectly, any shares of Capital Stock of any Subsidiary of the Parent.
(f) Litigation; Commercial Tort Claims. Except as set forth in
Schedule 6.01(f), (i) there is no pending or, to the best knowledge of any Loan
Party, threatened action, suit or proceeding affecting any Loan Party or its
properties before any court or other Governmental Authority or any arbitrator
(other than any action, suit or proceeding that is an Excluded Note Event and
except with respect to any action, suit or proceeding expressly addressed in
Section 6.01(r)) that (A) could reasonably be expected to have a Material
Adverse Effect or (B) relates to this Agreement or any other Loan Document or
any transaction
73
contemplated hereby or thereby and (ii) as of the Effective Date, none of the
Loan Parties holds any commercial tort claims, with a claim exceeding
$100,000, in respect of which a claim has been filed in a court of law or a
written notice by an attorney has been given to a potential defendant.
(g) Financial Condition.
(i) The Financial Statements, copies of which have been
delivered to each of the Agents and each Lender, fairly present, in all
material respects, the consolidated financial condition of the Parent and its
Subsidiaries as at the respective dates thereof and the consolidated results of
operations of the Parent and its Subsidiaries for the fiscal periods ended on
such respective dates, all in accordance with GAAP, and since December 31,
2002, no event or development has occurred that has had or could reasonably be
expected to have a Material Adverse Effect.
(ii) The Parent has heretofore furnished to each Agent and
each Lender (A) projected monthly balance sheets, income statements and
statements of cash flows of the Parent and its Subsidiaries for the period from
October 2003 through December 2004, and (B) projected annual balance sheets,
income statements and statements of cash flows of the Parent and its
Subsidiaries for the Fiscal Year ending in 2005. Such projections were
believed by the Loan Parties at the time furnished to be reasonable, were
prepared and in good faith by the Loan Parties, and were based on assumptions,
methods and tests stated therein which were believed by the Loan Parties to be
reasonable at the time prepared and upon information believed by the Loan
Parties to have been accurate based upon the information available to the Loan
Parties at the time such projections were prepared, and the Parent shall not be
aware of any facts or information that would lead it to believe that such
projections are incorrect or misleading in any material respect.
(h) Compliance with Law, Etc. No Loan Party is in violation of
its organizational documents, any law, rule, regulation, judgment or order of
any Governmental Authority applicable to it or any of its property or assets,
or any material term of any material agreement or instrument (excluding any
agreement or instrument in respect of Indebtedness but including any other
Material Contract) binding on or otherwise affecting it or any of its
properties, and no Default or Event of Default has occurred and is continuing.
Notwithstanding the foregoing, this Section shall not be deemed to address any
matters expressly addressed in Sections 6.01(i), 6.01(j), 6.01(n) or 6.01(r),
such matters being subject solely to such Sections.
(i) ERISA. Except as set forth on Schedule 6.01(i), (i) each
Employee Plan is in substantial compliance in all substantial respects with
ERISA and the Internal Revenue Code, (ii) no Termination Event has occurred nor
is reasonably expected to occur with respect to any Employee Plan, (iii) since
the date of the most recent annual report (Form 5500 Series) with respect to
each Employee Plan, including any required Schedule B (Actuarial Information)
thereto, copies of which have been filed with the Internal Revenue Service and
delivered or made available upon request to the Administrative Agent, there has
been no material adverse change in such funding status, (iv) copies of each
agreement entered into with the PBGC, the U.S. Department of Labor or the
Internal Revenue Service with respect to any Employee Plan have been delivered
to the Administrative Agent, (v) no Employee Plan had an accumulated funding
74
deficiency (whether or not waived) or has applied for an extension of any
amortization period within the meaning of Section 412 of the Internal Revenue
Code at any time during the previous 60 months, and (vi) no Lien imposed under
Section 412 of the Internal Revenue Code or Section 4068 of ERISA exists or is
reasonably expected to arise on account of any Employee Plan. Except as set
forth on Schedule 6.01(i), no Loan Party or any of its ERISA Affiliates has
incurred any withdrawal liability under ERISA with respect to any Multiemployer
Plan, or is reasonably expected in the future to incur any such withdrawal
liability. No Loan Party or any of its ERISA Affiliates or any fiduciary of
any Employee Plan has (i) engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code, (ii)
failed to pay any required installment or other payment required under Section
412 of the Internal Revenue Code on or before the due date for such required
installment or payment, (iii) engaged in a transaction within the meaning of
Section 4069 of ERISA or (iv) incurred any material liability to the PBGC which
remains outstanding other than the payment of premiums, and there are no such
premium payments which have become due which are unpaid. There are no pending
or, to the best knowledge of any Loan Party, threatened material claims,
actions, proceedings or lawsuits (other than claims for benefits in the normal
course) asserted or instituted against (i) any Employee Plan or its assets,
(ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party
or any of its ERISA Affiliates with respect to any Employee Plan. Except as
set forth on Schedule 6.01(i) and except as required by Section 4980B of the
Internal Revenue Code, no Loan Party or any of its ERISA Affiliates maintains
an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of any Loan Party or any of its
ERISA Affiliates or coverage after a participant's termination of employment.
(j) Taxes, Etc. All Federal and material foreign, state and
local tax returns and other reports required by applicable law to be filed by
any Loan Party have been filed, or extensions have been obtained, and all
taxes, assessments and other governmental charges imposed upon any Loan Party
or any property of any Loan Party and which have become due and payable on or
prior to the date of the Prior Financing Agreement have been paid, except such
taxes, assessments and governmental charges in an aggregate amount not
exceeding $100,000 or to the extent contested in good faith by proper
proceedings which stay the imposition of any penalty, fine or Lien resulting
from the non-payment thereof and with respect to which adequate reserves, if
any, have been set aside for the payment thereof on the Financial Statements to
the extent required by and in accordance with GAAP.
(k) Regulations T, U and X. No Loan Party is or will be engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation T, U or X), and no proceeds of
any Loan will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock.
(l) Nature of Business.
(i) As of the Effective Date, except with respect to
Milacron Capital, no Loan Party is engaged in any business other than as
described in the Parent's Form 10-K for the period ending December 31, 2002
with the SEC.
75
(ii) Immediately prior to the Effective Date, Milacron
Capital (x) does not conduct and is not engaged in any business or operations
other than such business and operations related to the ownership of the Capital
Stock of its Subsidiaries and the performance of any other business and
operations customarily performed by a holding company, (y) has an aggregate
book value of its assets and properties (other than its Subsidiaries) of not
greater than $1,000,000 and has aggregate liabilities (other than liabilities
related to the Euro Notes and the Existing Credit Facility) of not greater than
$100,000, and (z) has revenues (on a non-consolidated basis) for the four
fiscal quarters ending immediately prior to the Effective Date of not greater
than $0.
(iii) As of the Effective Date, with respect to the Domestic
Subsidiaries that are not a Loan Party, (x) no such Domestic Subsidiary
conducts or engages in any business or operations, and (y) the aggregate book
value of their assets and properties is not greater than $0, the aggregate
amount of their liabilities is not greater than $0 and (z) the aggregate amount
of their revenues for the four fiscal quarters ending immediately prior to the
Effective Date is not greater than $0.
(iv) As of the Effective Date, Milacron Assurance has no
assets or liabilities other than those associated with the provision of self-
insurance to the Parent and its other Subsidiaries and services related
thereto, and does not conduct and is not engaged in any business or operations
other than such business and operations related to the provision of such
insurance and services related thereto all of which insurance and related
services are provided solely for the benefit of the Parent or its Subsidiaries.
(m) Adverse Agreements, Etc. No Loan Party is a party to any
agreement or instrument, or subject to any charter, limited liability company
agreement, partnership agreement or other corporate, partnership or limited
liability company restriction or any judgment, order, regulation, ruling or
other requirement of a court or other Governmental Authority, which has, or in
the future could reasonably be expected to have, a Material Adverse Effect,
except if the Loan Parties are unable to satisfy their payment obligations
under the Euro Notes.
(n) Permits, Etc. Each Loan Party has, and is in compliance with
all permits, licenses, authorizations, approvals, entitlements and
accreditations required for such Person lawfully to own, lease, manage or
operate, or to acquire, each business currently owned, leased, managed or
operated, or to be acquired, by such Person, which, if not obtained, could not
reasonably be expected to have a Material Adverse Effect. No condition exists
or event has occurred which, in itself or with the giving of notice or lapse of
time or both, would result in the suspension, revocation, impairment,
forfeiture or non-renewal of any such permit, license, authorization, approval,
entitlement or accreditation, and there is no claim that any thereof is not in
full force and effect, except, to the extent any such condition, event or claim
could not be reasonably be expected to have a Material Adverse Effect.
(o) Properties.
(i) Each Loan Party has good and marketable title to, valid
leasehold interests in, or valid licenses to use, all property and assets
material to its business, free and clear
76
of all Liens, except Permitted Liens. All such properties and assets are in
working order and condition, ordinary wear and tear excepted.
(ii) Schedule 6.01(o) sets forth a complete and accurate
list, as of the Effective Date, of the location, by state and street address,
of all real property owned or leased by each Loan Party. As of the Effective
Date, each Loan Party has valid leasehold interests in the Leases described on
Schedule 6.01(o) to which it is a party. Schedule 6.01(o) sets forth with
respect to each such Lease, termination date and annual base rents. Each such
Lease is valid and enforceable in accordance with its terms in all material
respects and is in full force and effect. No consent or approval of any
landlord or other third party in connection with any such Lease is necessary
for any Loan Party to enter into and execute the Loan Documents to which it is
a party, except as set forth on Schedule 6.01(o). To the best knowledge of any
Loan Party, no other party to any such Lease is in default of its material
obligations thereunder, and no Loan Party (or any other party to any such
Lease) has at any time delivered or received any notice of default which
remains uncured under any such Lease and, as of the Effective Date, no event
has occurred which, with the giving of notice or the passage of time or both,
would constitute a default under any such Lease.
(iii) Except with respect to transfers made in compliance
with this Agreement and other than a Permitted Lien that is an inchoate Lien
securing obligations for the payment of money not overdue or not otherwise due
and payable, Milacron Marketing Company (the "Misplaced Note Holder") is the
legal and beneficial owner of certain originals of notes identified by an
asterisk as missing in Schedule I to the Pledge Agreement (the "Misplaced
Notes") free and clear of all Liens, except for the Lien created by the Loan
Documents. As of the Effective Date, the Misplaced Notes are lost, destroyed
or misplaced through inadvertence or otherwise and after conducting a diligent
search of its records, no Loan Party has been able to locate the Misplaced
Notes.
(p) Full Disclosure. Each Loan Party has disclosed to the
Administrative Agent all agreements, instruments and corporate or other
restrictions to which it is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party
to the Administrative Agent in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which it was made, not misleading; provided
that, with respect to projected financial information, each Loan Party
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time prepared. There is no
contingent liability or fact that could reasonably be expected to have a
Material Adverse Effect which has not been set forth in a footnote included in
the Financial Statements or a Schedule hereto.
(q) Operating Lease Obligations. On the Effective Date, none of
the Loan Parties has any Operating Lease Obligations with annual payments
exceeding $100,000 other than the Operating Lease Obligations set forth on
Schedule 6.01(q).
77
(r) Environmental Matters. Except as set forth on Schedule
6.01(r), specific to each of the following subsections:
(i) each Loan Party's businesses, Facilities, operations,
properties and assets are in material compliance with all Environmental Laws;
(ii) each Loan Party has obtained and is in material
compliance with all material Environmental Permits necessary to operate, use or
occupy all of such Loan Party's businesses, Facilities, operations, properties
and assets;
(iii) each Loan Party has obtained and is in material
compliance with any applicable financial assurance requirements under RCRA and
any similar Environmental Law, as specifically set forth but not limited to 40
C.F.R. 264 and 265, necessary, to operate, use or occupy all of such Loan
Party's businesses, or occupy all of such Loan Party's Facilities and
properties;
(iv) each Loan Party is in material compliance with all
applicable writs, orders, consent decrees, judgments, and injunctions, decrees,
informational requests or demands issued by any Governmental Authority or
Person pursuant to, or under, any Environmental Laws;
(v) there are no material Environmental Liens associated
or, to the best knowledge of each Loan Party, threatened to be associated with
any Loan Parties' businesses, Facilities, operations, properties and assets;
(vi) there has been no Release at any of the properties
currently or, during the period of ownership or operation by any Loan Party,
previously owned or operated by any Loan Party or a predecessor in interest
which could reasonably be expected to have a Material Adverse Effect;
(vii) to the knowledge of any Loan Party, there has been no
Release at any disposal or treatment facility which received Hazardous
Materials Handled by any Loan Party or any predecessor in interest which could
reasonably be expected to have a Material Adverse Effect;
(viii)no Environmental Action has been asserted against any
Loan Party or any predecessor in interest nor does any Loan Party have
knowledge or notice of any threatened or pending Environmental Action against
any Loan Party or any predecessor in interest which, in any case, could
reasonably be expected to have a Material Adverse Effect;
(ix) to the knowledge of any Loan Party, no Environmental
Actions have been asserted against any facilities that may have received
Hazardous Materials Handled by any Loan Party or any predecessor in interest
which could reasonably be expected to have a Material Adverse Effect;
(x) no property now or, during the period of ownership or
operation by any Loan Party, formerly owned or operated by a Loan Party has
been used as a treatment,
78
storage or disposal site for any Hazardous Material, except as could not
reasonably be expected to have a Material Adverse Effect;
(xi) during the past 3 years, no Loan Party has failed to
report to the proper Governmental Authority any Release which is required to be
so reported by any Environmental Laws, except as could not reasonably be
expected to have a Material Adverse Effect; and
(xii) no Loan Party has received any written notification
pursuant to any Environmental Laws that (A) any work, repairs, construction or
Capital Expenditures are required to be made in respect as a condition of
continued compliance with any Environmental Law or Environmental Permit or (B)
any Environmental Permit referred to above is about to be reviewed, made,
subject to limitations or conditions, revoked, withdrawn or terminated, in each
case, except as could not reasonably be expected to have a Material Adverse
Effect.
(s) Insurance. Each Loan Party keeps its property adequately
insured and maintains (i) insurance to such extent and against such risks,
including fire, as is customary with companies of similar size and in the same
or similar businesses, (ii) workmen's compensation insurance in the amount
required by applicable law, (iii) public liability insurance, which shall
include product liability insurance, in the amount customary with companies of
similar size and in the same or similar business against claims for personal
injury or death on properties owned, occupied or controlled by it, and (iv)
such other insurance as may be required by law. Schedule 6.01(s) sets forth a
list of all insurance maintained by each Loan Party on the Effective Date.
(t) Use of Proceeds.
(i) On the Effective Date, the proceeds of the Loans,
together with cash and cash equivalents of the Parent and its Subsidiaries in
the United States, shall be used to (A) refinance existing Indebtedness of the
Loan Parties under the Existing Credit Facility, (B) repay the Existing
Receivables Facility, which will result in the termination of that facility
(including by repurchasing receivables sold under Milacron Commercial Corp.'s
receivables sale facility upon its termination), and (C) pay fees and expenses
in connection with the transactions contemplated hereby.
(ii) After the Effective Date, the proceeds of the Loans
will be used to fund general corporate purposes of the Loan Parties and their
Subsidiaries and may be used as contemplated by the Mizuho/Glencore
Transactions and in accordance with the proviso in the definition of Euro Note
Restructuring Transaction. The Letter of Credit Accommodations will be used
for general corporate and working capital purposes.
(u) Location of Bank Accounts. Schedule 6.01(u) sets forth a
complete and accurate list as of the Effective Date of all deposit, checking
and other bank accounts, all securities and other accounts maintained with any
broker dealer and all other similar accounts maintained by each Loan Party,
together with a description thereof (i.e., the bank or broker dealer at which
such deposit or other account is maintained and the account number and the
purpose thereof). As of the Effective Date, no Loan Party maintains any other
accounts other than those set forth on Schedule 6.01(u).
79
(v) Intellectual Property.
(i) Except as set forth on Schedule 6.01(v) each Loan Party
owns or licenses or otherwise has the right to use all material licenses,
permits, patents, patent applications, trademarks, trademark applications,
service marks, tradenames, trade secrets, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operation of its business, without infringement upon or
conflict with the rights of any other Person with respect thereto. Set forth
on Schedule 6.01(v) is a complete and accurate list as of the Effective Date of
all such material licenses, permits, patents, patent applications, trademarks,
trademark applications, service marks, tradenames, trade secrets, copyrights,
copyright applications, franchises, authorizations, non-governmental licenses
and permits and other intellectual property rights of each Loan Party. Except
as set forth on Schedule 6.01(v), no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by any Loan Party infringes upon or conflicts
with any rights owned by any other Person, and no claim or litigation regarding
any of the foregoing is pending or threatened in writing. To the best
knowledge of each Loan Party, no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code is pending or
proposed, which, individually or in the aggregate, could have a Material
Adverse Effect.
(ii) Each Loan Party has taken reasonable measures to
protect the secrecy, confidentiality and value of all trade secrets used in its
business (collectively, the "Business Trade Secrets"). To the best knowledge
of any Loan Party, none of the Business Trade Secrets have been disclosed to
any Person other than employees or contractors of the Loan Parties who had a
need to know and use such Business Trade Secrets in the ordinary course of
employment or contract performance and who executed appropriate confidentiality
agreements prohibiting the unauthorized use or disclosure of such Business
Trade Secrets and containing other terms reasonably necessary or appropriate
for the protection and maintenance of such Business Trade Secrets. To the best
knowledge of any Loan Party, no unauthorized disclosure of any Business Trade
Secrets has been made.
(w) Material Contracts. Set forth on Schedule 6.01(w) is a
complete and accurate list as of the Effective Date of all Material Contracts
of each Loan Party, showing the parties and subject matter thereof and
amendments and modifications thereto. Each such Material Contract (i) is in
full force and effect and is binding upon and enforceable against each Loan
Party that is a party thereto and, to the best knowledge of such Loan Party,
all other parties thereto in accordance with its terms, (ii) has not been
otherwise amended or modified (other than pursuant to the Euro Note
Restructuring Transaction with respect to the Euro Notes and the Euro Note
Indenture), and (iii) is not in default due to the action of any Loan Party or,
to the best knowledge of any Loan Party, any other party thereto, other than a
default that may arise that constitutes or results directly from an Excluded
Note Event.
(x) Holding Company and Investment Company Acts. None of the
Loan Parties is (i) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended, or (ii) an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended.
80
(y) Employee and Labor Matters. There is (i) no unfair labor
practice complaint pending or, to the best knowledge of any Loan Party,
threatened against any Loan Party before any Governmental Authority and no
grievance or arbitration proceeding pending or, to the best knowledge of any
Loan Party, threatened against any Loan Party which arises out of or under any
collective bargaining agreement that would affect a material portion of the
business of any Loan Party, (ii) no strike, labor dispute, slowdown, stoppage
or similar action or grievance pending or threatened against any Loan Party or
(iii) to the best knowledge of any Loan Party, no union representation question
existing with respect to the employees of any Loan Party and no union
organizing activity taking place with respect to any of the employees of any
Loan Party. No Loan Party or any of its ERISA Affiliates has incurred any
liability or obligation under the Worker Adjustment and Retraining Notification
Act ("WARN") or similar state or foreign law, which remains unpaid or
unsatisfied. The hours worked and payments made to employees of any Loan Party
have not been in violation of the Fair Labor Standards Act or any other
applicable legal requirements other than violations of immaterial obligations
of any Loan Party resulting in immaterial liability incurred by any Loan Party.
All material payments due from any Loan Party on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of such Loan Party.
(z) Customers and Suppliers. There exists no actual or
threatened termination, cancellation or limitation of, or modification to or
change in, the business relationship between (i) any Loan Party, on the one
hand, and any customer or any group thereof, on the other hand, whose
agreements with any Loan Party are individually or in the aggregate material to
the business or operations of the Loan Parties taken as a whole, or (ii) any
Loan Party, on the one hand, and any material supplier thereof, on the other
hand, whose agreements with any Loan Party are individually or in the aggregate
material to the business or operations of the Loan Parties taken as a whole,
and there exists no present state of facts or circumstances that could give
rise to or result in any such termination, cancellation, limitation,
modification or change which would, individually or in the aggregate, be
material to the business or operations of the Loan Parties taken as a whole.
(aa) Name; Jurisdiction of Organization; Organizational ID Number;
Chief Place of Business; Chief Executive Office; FEIN. Schedule 6.01(aa) sets
forth a complete and accurate list as of the date of the Prior Financing
Agreement of (i) the full and correct legal name of each Loan Party, (ii) the
jurisdiction of organization of each Loan Party, (iii) the organizational
identification number of each Loan Party (or indicates that such Loan Party has
no organizational identification number), (iv) each place of business of each
Loan Party, (v) the chief executive office of each Loan Party and (vi) the
federal employer identification number of each Loan Party.
(bb) Tradenames. Schedule 6.01(bb) hereto sets forth a complete
and accurate list as of the Effective Date of all tradenames, business names or
similar appellations used by each Loan Party or any of its divisions or other
business units during the past five years.
(cc) Locations of Collateral. There is no location at which any
Loan Party has any Collateral (except for Inventory in transit and Inventory in
locations not within the United States with an aggregate Book Value not
exceeding $650,000) other than (i) those locations listed on Schedule 6.01(cc)
and (ii) any other locations approved in writing by the Collateral
81
Agent (and with respect to Inventory, the Administrative Agent) from time to
time. Schedule 6.01(cc) hereto contains a true, correct and complete list, as
of the Effective Date, of the legal names and addresses of each warehouse at
which Collateral of each Loan Party is stored. None of the receipts received
by any Loan Party from any warehouse states that the goods covered thereby are
to be delivered to bearer or to the order of a named Person or to a named
Person and such named Person's assigns.
(dd) Security Interests. Each Security Agreement creates in favor
of the Collateral Agent, for the benefit of the Agents and the Lenders, a
legal, valid and enforceable security interest in the Collateral secured
thereby. To the extent governed by the Uniform Commercial Code, upon the
filing of the UCC financing statements described in Section 5.01(d)(vii) and
the recording of the Collateral Assignments for Security referred to in each
Security Agreement in the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, such security interests in and
Liens on the Collateral granted thereby that may be perfected by such
aforementioned filings or recordings shall be perfected, first priority
security interests (subject only to the Permitted Liens that, as a matter of
law (including, without limitation, the priority rules of the Uniform
Commercial Code), would be prior to the Liens of the Collateral Agent), and no
further recordings or filings are or will be required in connection with the
creation, perfection or enforcement of such security interests and Liens, other
than (i) the filing of continuation statements in accordance with applicable
law, (ii) the recording of the Collateral Assignments for Security pursuant to
each Security Agreement in the United States Patent and Trademark Office and
the United States Copyright Office, as applicable, with respect to after-
acquired U.S. patent and trademark applications and registrations and U.S.
copyrights and (iii) the recordation of appropriate evidence of the security
interest in the appropriate foreign registry with respect to all foreign
intellectual property.
(ee) Euro Indenture. All Obligations, including, without
limitation, those to pay principal of and interest on the Loans and the Letter
of Credit Obligations and fees and expenses in connection therewith, are
permitted to be incurred under the Euro Indenture (or are not otherwise
prohibited by the Euro Indenture).
(ff) Financial Assistance. (i) No proceeds of any Loan have been
made or will be used to subscribe for or acquire Capital Stock of Milacron
Capital or Milacron B.V. or to refinance existing Indebtedness used for such
purpose and (ii) the Dutch financial assistance rules do not apply to the
pledge of the Capital Stock of Milacron Capital or Milacron B.V.
(gg) Schedules. All of the information which is required to be
scheduled to this Agreement is set forth on the Schedules attached hereto, is
correct and accurate and does not omit to state any information material
thereto.
(hh) Canadian Pension and Benefit Plan Matters. The Canadian
Pension Plans are duly registered under the ITA and all other applicable laws
which require registration and no event has occurred which is reasonably likely
to cause the loss of such registered status. All material statutory
obligations of any Loan Party (including fiduciary, funding, investment and
administration obligations) required to be performed in connection with the
Canadian Pension Plans and the funding agreements therefor have been performed
in a timely fashion. There are no outstanding suits concerning the assets of
the Canadian Pension Plans or the Canadian Benefit
82
Plans. Each of the Canadian Pension Plans is fully funded on a solvency basis
(using actuarial methods and assumptions which are consistent with the
valuations last filed with the applicable governmental authorities and which
are consistent with generally accepted actuarial principles). None of the
Canadian Borrowing Base Guarantor employs any employees outside of Canada.
ARTICLE VII.
COVENANTS OF THE LOAN PARTIES
Section 7.01 Affirmative Covenants. So long as any principal of or
interest on any Loan, Letter of Credit Obligation (other than any Letter of
Credit Obligation that is cash collateralized in accordance with the terms of
this Agreement) or any other Obligation (whether or not due), other than
contingent obligations and indemnification obligations for which no claim has
been asserted, shall remain unpaid or any Lender shall have any Commitment
hereunder, each Loan Party will, unless the Required Lenders shall otherwise
consent in writing:
(a) Reporting Requirements. Furnish to each Agent and each
Lender:
(i) as soon as available and in any event within 45 days
after the end of each fiscal quarter of the Parent and its Subsidiaries
commencing with the first fiscal quarter of the Parent and its Subsidiaries
ending after the Effective Date, balance sheets on a consolidated and business
unit basis (on a basis consistent with the business unit financial projections
provided to the Administrative Agent on the Effective Date), statements of
operations and retained earnings on a consolidated and business unit basis (on
a basis consistent with the business unit financial projection provided to the
Administrative Agent on the Effective Date) and statements of cash flows on a
consolidated and business unit basis (on a basis consistent with the business
unit financial projections provided to the Administrative Agent on the
Effective Date) of the Parent and its Subsidiaries as at the end of such
quarter, and for the period commencing at the end of the immediately preceding
Fiscal Year and ending with the end of such quarter, setting forth in each case
in comparative form the figures for the corresponding date or period of the
immediately preceding Fiscal Year, all in reasonable detail and, in the case of
consolidated information, certified by an Authorized Officer of the Parent as
fairly presenting, in all material respects, the financial position of the
Parent and its Subsidiaries as of the end of such quarter and the results of
operations and cash flows of the Parent and its Subsidiaries for such quarter,
in accordance with GAAP applied in a manner consistent with that of the most
recent audited financial statements of the Parent and its Subsidiaries
furnished to the Administrative Agent and the Lenders, subject to normal year-
end adjustments and the absence of footnotes;
(ii) as soon as available, and in any event within 90 days
after the end of the Fiscal Year 2003 of the Parent and its Subsidiaries,
balance sheets on a consolidated and business unit basis (on a basis consistent
with the business unit financial projections provided to the Administrative
Agent on the Effective Date), statements of operations and retained earnings on
a consolidated and business unit basis (on a basis consistent with the business
unit financial projections provided to the Administrative Agent on the
Effective Date) and statements of cash flow on a consolidated and business unit
basis (on a basis consistent with the business unit financial projections
provided to the Administrative Agent on the Effective Date) of the Parent
83
and its Subsidiaries as at the end of the Fiscal Year 2003, setting forth in
each case in comparative form the corresponding figures for the immediately
preceding Fiscal Year, all in reasonable detail and, in the case of
consolidated information, prepared in accordance with GAAP, and accompanied by
a report and an unqualified opinion, prepared in accordance with generally
accepted auditing standards, of independent certified public accountants of
recognized standing selected by the Parent and satisfactory to the
Administrative Agent (which opinion on such consolidated information shall be
without (A) any qualification or exception as to the scope of such audit, or
(B) any qualification which relates to the treatment or classification of any
item and which, as a condition to the removal of such qualification, would
require an adjustment to such item, the effect of which would be to cause any
noncompliance with the provisions of Section 7.03), together with a written
statement of such accountants (1) to the effect that, in making the
examination necessary for their certification of such financial statements,
they have not obtained any knowledge of the existence of an Event of Default
or a Default and (2) if such accountants shall have obtained any knowledge of
the existence of an Event of Default or such Default, describing the nature
thereof;
(iii) as soon as available, and in any event within 30 days
after the end of each fiscal month of the Parent and its Subsidiaries
commencing with the first fiscal month of the Parent and its Subsidiaries
ending after the Effective Date, internally prepared consolidated and
consolidating balance sheets, consolidated and consolidating statements of
operations and retained earnings and consolidated and consolidating statements
of cash flows as at the end of such fiscal month, and for the period commencing
at the end of the immediately preceding Fiscal Year and ending with the end of
such fiscal month, all in reasonable detail and certified by an Authorized
Officer of the Parent as fairly presenting, in all material respects, the
financial position of the Parent and its Subsidiaries as at the end of such
fiscal month and the results of operations, retained earnings and cash flows of
the Parent and its Subsidiaries for such fiscal month, in accordance with GAAP
applied in a manner consistent with that of the most recent audited financial
statements furnished to the Administrative Agent and the Lenders, subject to
normal year-end adjustments and the absence of footnotes;
(iv) simultaneously with the delivery of the financial
statements of the Parent and its Subsidiaries required by clauses (i), (ii) and
(iii) of this Section 7.01(a), a certificate of an Authorized Officer of the
Parent (A) stating that such Authorized Officer has reviewed the provisions of
this Agreement and the other Loan Documents and has made or caused to be made
under his or her supervision a review of the condition and operations of the
Parent and its Subsidiaries during the period covered by such financial
statements with a view to determining whether the Parent and its Subsidiaries
were in compliance with all of the provisions of this Agreement and such Loan
Documents at the times such compliance is required hereby and thereby, and that
such review has not disclosed, and such Authorized Officer has no knowledge of,
the existence during such period of an Event of Default or Default or, if an
Event of Default or Default existed, describing the nature and period of
existence thereof and the action which the Parent and its Subsidiaries propose
to take or have taken with respect thereto and (B) attaching a schedule showing
the calculations specified in Section 7.03;
(v) upon the Administrative Agent's reasonable request,
reports as required by Section 8.05(a)(ii), in form and detail reasonably
satisfactory to the Administrative
84
Agent and certified by an Authorized Officer of the Administrative Borrower as
being accurate and complete in all material respects;
(vi) (A) as soon as available and in any event within 15
days after the end of each month commencing with the first month ending after
the Effective Date, or (B) no later than 12:00 noon (New York time) Thursday of
each calendar week, if requested by the Administrative Agent when Availability
would be less than $25,000,000, a Borrowing Base Certificate, current as of the
close of business on Friday of the immediately preceding week, supported by
schedules showing the derivation thereof and containing such detail and other
information as the Administrative Agent may reasonably request from time to
time, provided that (I) the Borrowing Base set forth in the Borrowing Base
Certificate shall be effective from and including the date such Borrowing Base
Certificate is duly received by the Administrative Agent but not including the
date on which a subsequent Borrowing Base Certificate is received by the
Administrative Agent, unless the Administrative Agent disputes the eligibility
of any property included in the calculation of the Borrowing Base or the
valuation thereof by notice of such dispute to the Administrative Borrower,
(II) in the event of any dispute about the eligibility of any property included
in the calculation of the Borrowing Base or the valuation thereof, the
Administrative Agent's reasonable judgment shall control until such dispute is
resolved and (III) in the case of Borrowing Base Certificates delivered on a
weekly basis, the Inventory component may be updated on a monthly basis;
(vii) promptly after submission to any Governmental
Authority, all documents and information furnished to such Governmental
Authority in connection with any investigation of any Loan Party other than
routine inquiries by such Governmental Authority;
(viii)as soon as possible, and in any event within 3 Business
Days after the occurrence of an Event of Default or Default or the occurrence
of any event or development that could have a Material Adverse Effect, the
written statement of an Authorized Officer of the Administrative Borrower
setting forth the details of such Event of Default or Default or other event or
development having a Material Adverse Effect and the action which the affected
Loan Party proposes to take with respect thereto;
(ix) (A) as soon as possible and in any event within 15 days
after any Loan Party or any ERISA Affiliate thereof knows or has reason to know
that (1) any Reportable Event with respect to any Employee Plan has occurred,
(2) any other Termination Event with respect to any Employee Plan has occurred,
or (3) an accumulated funding deficiency has been incurred or an application
has been made to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including installment payments) or an extension
of any amortization period under Section 412 of the Internal Revenue Code with
respect to an Employee Plan, a statement of an Authorized Officer of the
Administrative Borrower setting forth the details of such occurrence and the
action, if any, which such Loan Party or such ERISA Affiliate proposes to take
with respect thereto, (B) promptly and in any event within 10 days after
receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC,
copies of each notice received by any Loan Party or any ERISA Affiliate thereof
of the PBGC's intention to terminate any Plan or to have a trustee appointed to
administer any Plan, (C) promptly and in any event within 15 days after the
filing thereof with the Internal Revenue Service if requested by the
Administrative Agent, copies of each Schedule B (Actuarial Information) to the
annual
85
report (Form 5500 Series) with respect to each Employee Plan and Multiemployer
Plan, (D) promptly and in any event within 15 days after any Loan Party or any
ERISA Affiliate thereof knows or has reason to know that a required
installment within the meaning of Section 412 of the Internal Revenue Code has
not been made when due with respect to an Employee Plan, (E) promptly and in
any event within 10 days after receipt thereof by any Loan Party or any ERISA
Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a
copy of each notice received by any Loan Party or any ERISA Affiliate thereof
concerning the imposition or amount of withdrawal liability under Section 4202
of ERISA or indicating that such Multiemployer Plan may enter reorganization
status under Section 4241 of ERISA and (F) promptly and in any event within 15
days after any Loan Party or any ERISA Affiliate thereof sends notice of a
plant closing or mass layoff (as defined in WARN) to employees, copies of each
such notice sent by such Loan Party or such ERISA Affiliate thereof, in each
case under the immediately preceding clauses (A) through (F), to the extent
any such event or occurrence would reasonably be expected to result in
liability of any Loan Party or any ERISA Affiliate thereof in an amount in
excess of $500,000;
(x) promptly after the commencement thereof but in any
event not later than 5 Business Days after service of process with respect
thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of
each action, suit or proceeding before any court or other Governmental
Authority or other regulatory body or any arbitrator which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect;
(xi) as soon as possible and in any event within 5 days
after execution, receipt or delivery thereof, copies of any notices that any
Loan Party executes or receives in connection with any Material Contract (other
than Indebtedness) that such Loan Party determines in good faith to be material
to the Administrative Agent of the Lenders;
(xii) as soon as possible and in any event within 5 days
after execution, receipt or delivery thereof, copies of any notices that any
Loan Party executes or receives in connection with any Designated Disposition
or the sale or other Disposition of the Capital Stock of, or all or
substantially all of the assets of, any Loan Party that, in each case, such
Loan Party determines in good faith to be material to such transaction or to
the Administrative Agent or the Lenders;
(xiii)as soon as possible and in any event within 5 days
after execution, receipt or delivery thereof, copies of (x) all statements,
reports and other information any Loan Party sends to any holders of its
Indebtedness with an aggregate principal amount exceeding $4,000,000 (other
than to any Euro Note Holder, or any agent in connection therewith) or its
securities (other than the Euro Notes) or files with the SEC or any national
(domestic or foreign) securities exchange and (y) all term sheets, proposals,
counterproposals, commitment letters, letters of intent, memorandum of
understanding, outlines of terms and conditions and presentations thereto and
other similar information any Loan Party sends to any of the Euro Note Holders
and any written responses, notices and other correspondences received by any
Loan Party from any of the Euro Note Holders in connection therewith and any
documents related to any action taken or threatened to be taken by any Euro
Note Holder related to any Excluded Note Event or any actions described in
Section 9.01(u);
86
(xiv) promptly upon receipt thereof, copies of all financial
reports (including, without limitation, management letters), if any, submitted
to any Loan Party by its auditors in connection with any annual or interim
audit of the books thereof; and
(xv) promptly upon request, such other information
concerning the condition or operations, financial or otherwise, of any Loan
Party as any Agent may from time to time may reasonably request.
(b) Additional Guaranties and Collateral Security. Cause:
(i) each Subsidiary of any Loan Party not in existence on
the Effective Date (other than the China JV), to execute and deliver to the
Collateral Agent promptly and in any event within 3 Business Days after the
formation, acquisition or change in status thereof (A) a Guaranty guaranteeing
the Obligations, (B) a Security Agreement, (C) if such Subsidiary has any
Subsidiaries, a Pledge Agreement together with (x) certificates evidencing all
of the Capital Stock of any Person owned by such Subsidiary (other than a
Foreign Subsidiary) and, in the case of a Foreign Subsidiary, all of the non-
voting Capital Stock and 65% of the voting Capital Stock of such Foreign
Subsidiary, (y) undated stock powers executed in blank with signature
guaranteed, and (z) such opinion of counsel and such approving certificate of
such Subsidiary as the Collateral Agent may reasonably request in respect of
complying with any legend on any such certificate or any other matter relating
to such shares, (D) if reasonably requested by the Collateral Agent, one or
more Mortgages creating on the real property of such Subsidiary a perfected,
first priority Lien on such real property, a Title Insurance Policy covering
such real property, a current ALTA survey thereof and a surveyor's certificate,
each in form and substance reasonably satisfactory to the Collateral Agent,
together with such other agreements, instruments and documents as the
Collateral Agent may require whether comparable to the documents required under
Section 7.01(n) or otherwise, and (E) such other agreements, instruments,
approvals, legal opinions or other documents reasonably requested by the
Collateral Agent in order to create, perfect, establish the first priority of
or otherwise protect any Lien purported to be covered by any such Security
Agreement, Pledge Agreement or Mortgage or otherwise to effect the intent that
such Subsidiary shall become bound by all of the terms, covenants and
agreements contained in the Loan Documents and that all property and assets of
such Subsidiary shall become Collateral for the Obligations; provided, however,
that in no event shall any Foreign Subsidiary be required to guaranty the
Obligations or ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets to secure the Obligations if
such guaranty or Lien shall result in a "deemed dividend" to any of the Loan
Parties; and
(ii) each owner of the Capital Stock of any such Subsidiary
(other than the China JV) to execute and deliver promptly and in any event
within 3 Business Days after the formation or acquisition of such Subsidiary a
Pledge Agreement, together with (A) certificates evidencing, (x) in the case
such Subsidiary is a Domestic Subsidiary, all of the Capital Stock of such
Subsidiary, and (y) in the case such Subsidiary is a directly owned Foreign
Subsidiary, all of the non-voting Capital Stock and 65% of the voting Capital
Stock of such Subsidiary, (B) undated stock powers or other appropriate
instruments of assignment executed in blank with signature guaranteed, (C) such
opinion of counsel and such approving certificate of such Subsidiary as the
Collateral Agent may reasonably request in respect of complying with any legend
on any such certificate or any other matter relating to such shares and
(D) such other
87
agreements, instruments, approvals, legal opinions or other documents
reasonably requested by the Collateral Agent.
(c) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders (including, without limitation, all Environmental
Laws) and with all material agreements (excluding agreements in respect of
Indebtedness), such compliance to include, without limitation, (i) paying
before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any of
its properties, and (ii) paying all lawful claims which if unpaid might become
a Lien or charge upon any of its properties, except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty, fine
or Lien resulting from the non-payment thereof and with respect to which
adequate reserves have been set aside for the payment thereof in accordance
with GAAP, other than in the case of clauses (i) and (ii) above, taxes,
assessments and governmental charges and levies and other lawful claims
described therein, the aggregate amount of which does not at any time exceed
$100,000.
(d) Preservation of Existence, Etc. Except as permitted by
Section 7.02(c), maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, its existence, rights and privileges in all material
respects, and become or remain, and cause each of its Subsidiaries to become or
remain, duly qualified and in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction
of its business makes such qualification necessary, except where the absence of
any such qualification could not reasonably be expected to result in a Material
Adverse Effect.
(e) Keeping of Records and Books of Account. Keep, and cause
each of its Subsidiaries to keep, adequate records and books of account, with
adequate and sufficient entries made to permit the preparation by the Parent of
its financial statements in accordance with GAAP.
(f) Inspection Rights. Permit, and cause each of its
Subsidiaries to permit, the agents and representatives of any Agent at any time
and from time to time during normal business hours, at the expense of the
Borrowers, to examine and make copies of and abstracts from its records and
books of account, to visit and inspect its properties, to verify materials,
leases, notes, accounts receivable, deposit accounts and its other assets, to
conduct audits, physical counts, valuations, appraisals, Phase I Environmental
Site Assessments reasonably necessary to determine compliance with or
liabilities under Environmental Laws or examinations and to discuss its
affairs, finances and accounts with any of its directors, officers, managerial
employees, independent accountants or any of its other representatives. In
furtherance of the foregoing, each Loan Party hereby authorizes its independent
accountants, and the independent accountants of each of its Subsidiaries, to
discuss the affairs, finances and accounts of such Person (independently or
together with representatives of such Person) with the agents and
representatives of any Agent in accordance with this Section 7.01(f).
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
which are, in any material respects, necessary or useful in the proper conduct
of its business in working order and condition, ordinary
88
wear and tear excepted, and comply, and cause each of its Subsidiaries to
comply, at all times with the provisions of all material leases to which it is
a party as lessee or under which it occupies property, so as to prevent any
loss or forfeiture thereof or thereunder.
(h) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations (including, without limitation, comprehensive general
liability, hazard, rent and business interruption insurance) with respect to
its properties (including all real properties leased or owned by it) and
business, in such amounts and covering such risks as is required by any
Governmental Authority having jurisdiction with respect thereto or as is
carried generally in accordance with sound business practice by companies of
similar size and in similar businesses similarly situated and in any event in
amount, adequacy and scope reasonably satisfactory to the Collateral Agent;
provided, however, the Parent and its Subsidiaries may maintain self-insurance
(which shall include insurance maintained through Milacron Assurance) in
connection with the insurance requirements set forth above to the extent
reasonably prudent and consistent with past practices. All policies covering
the Collateral are to be made payable to the Collateral Agent for the benefit
of the Agents and the Lenders, as its interests may appear, in case of loss,
under a standard non-contributory "lender" or "secured party" clause and are to
contain such other provisions as the Collateral Agent may require to fully
protect the Lenders' interest in the Collateral and to any payments to be made
under such policies. All certificates of insurance are to be delivered to the
Collateral Agent and the policies are to be premium prepaid, with the loss
payable and additional insured endorsement in favor of the Collateral Agent and
such other Persons as the Collateral Agent may designate from time to time, and
shall request of its insurance providers to, and use commercially reasonable
efforts to cause them to, provide for not less than 30 days' prior written
notice to the Collateral Agent of the exercise of any right of cancellation.
If any Loan Party or any of its Subsidiaries fails to maintain such insurance,
the Collateral Agent may arrange for such insurance, but at the Borrowers'
expense and without any responsibility on the Collateral Agent's part for
obtaining the insurance, the solvency of the insurance companies, the adequacy
of the coverage, or the collection of claims. Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent shall have the
sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to
file claims under any insurance policies, to receive, receipt and give
acquittance for any payments that may be payable thereunder, and to execute any
and all endorsements, receipts, releases, assignments, reassignments or other
documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies.
(i) Obtaining of Permits, Etc. Obtain, maintain and preserve,
and cause each of its Subsidiaries to obtain, maintain and preserve, and take
all necessary action to timely renew, all material permits, licenses,
authorizations, approvals, entitlements and accreditations which are necessary
or useful in the proper conduct of its business.
(j) Environmental. (i) Keep any property either owned or
operated by it or any of its Subsidiaries free of any Environmental Liens;
(ii) comply, and cause each of its Subsidiaries to comply, in all material
respects with Environmental Laws and provide to the Collateral Agent any
documentation of such compliance which the Collateral Agent may reasonably
request; (iii) provide the Collateral Agent written notice within ten (10) days
of any Loan Party obtaining knowledge of any Release of a Hazardous Material in
excess of any
89
reportable quantity from or onto property currently or during the period of
ownership or operation by any Loan Party, formerly owned or operated by it or
any of its Subsidiaries and take any Remedial Actions required under
Environmental Laws to ▇▇▇▇▇ said Release; provided, however, that no Loan
Party shall be required to undertake any Remedial Action required by
Environmental Laws to the extent that its obligation to do so is being
contested in good faith and by proper proceedings which stay the imposition of
any penalty, fine or Lien resulting from the non-performance thereof and
adequate reserves, if any, are being maintained with respect to such
circumstances in accordance with GAAP; (iv) provide the Collateral Agent with
written notice within ten (10) days of the receipt of any of the following:
(A) notice that an Environmental Lien has been filed against any property of
any Loan Party or any of its Subsidiaries; (B) commencement of any
Environmental Action or written notice that an Environmental Action will be
filed against any Loan Party or any of its Subsidiaries which, if adversely
determined, could be reasonably expected to have a Material Adverse Effect;
and (C) notice of a violation, citation or other administrative order which
could have a Material Adverse Effect; (v) defend, indemnify and hold harmless
the Collateral Agent and the Lenders and their transferees, and their
respective employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, attorney and consultant fees,
investigation and laboratory fees, court costs and litigation expenses)
arising out of (A) the Handling, presence, disposal, Release or threatened
Release of any Hazardous Materials on, under, in, originating or emanating
from any property at any time owned or operated by any Loan Party or any of
its Subsidiaries (or its predecessors in interest or title), (B) any personal
injury (including wrongful death) or property damage (real or personal)
arising out of or related to the presence, Handling or Release of such
Hazardous Materials, (C) any request for information, investigation, lawsuit
brought or threatened, settlement reached or order by a Governmental Authority
relating to the presence, Handling or Release of such Hazardous Materials, (D)
any violation of any Environmental Law by any Loan Party or any of its
Subsidiaries and/or (E) any Environmental Action relating to any Loan Party or
any of its Subsidiaries filed against the Collateral Agent or any Lender;
provided that, the Loan Parties shall not have any obligation to indemnify and
hold harmless the Collateral Agent, Lender or other party under this
subsection 7.01(j)(v) regarding any environmental matter covered hereunder
which is caused by the gross negligence or willful misconduct of the
Collateral Agent or Lender as determined by a final judgment of a court of
competent jurisdiction; (vi) maintain and preserve, in all material respects,
all Environmental Permits necessary to operate, use or occupy each of the Loan
Parties' businesses, Facilities, operations, properties and assets; (vii)
maintain and comply, in all material respects, with any applicable financial
assurance requirements under RCRA and any similar Environmental Law, as
specifically set forth but not limited to 40 C.F.R. 264 and 265, necessary to
operate, use or occupy each of the Loan Parties' businesses, Facilities,
operations, properties and assets; (viii) comply, in all material respects,
with all applicable writs, orders, consent decrees, judgments, injunctions,
communications by any Governmental Authority, decrees, informational requests
or demands issued pursuant to, or arising under, any Environmental Laws; (ix)
provide the Collateral Agent with prompt written notice in the event any Loan
Party is required to spend more than $100,000 individually or $500,000 in the
aggregate to comply with any Environmental Laws that have been promulgated and
enacted by a Governmental Authority throughout the term of this Agreement; and
(x) file and submit truthful and complete representations, including, without
limitation, applications,
90
warranty statements and accompanying materials provided in support of such
representations, submitted by the Loan Parties to obtain insurance.
Without limiting the generality of the foregoing, whenever the
Collateral Agent reasonably determine that there is non-compliance, or any
condition which requires any action by or on behalf of any Loan Party in order
to avoid any material non-compliance, with any Environmental Law which could
reasonably be expected to result in the imposition of material fines or
penalties or otherwise materially and adversely affect the business, assets or
prospects of the Loan Parties on a consolidated basis, the Loan Parties shall,
at the Collateral Agent's request and Borrowers' expense: (i) cause an
independent environmental engineer reasonably acceptable to the Collateral
Agent to conduct, as applicable, such reasonable assessments, investigations or
tests of the site where any Loan Party's non-compliance or alleged non-
compliance with such Environmental Laws has occurred as to such non-compliance
and prepare and deliver to the Collateral Agent a report as to such non-
compliance setting forth the results of such assessments, investigations or
tests, a proposed plan for responding to any environmental problems described
therein, and an estimate of the costs thereof and (ii) provide to the
Collateral Agent a supplemental report of such engineer whenever the scope of
such non-compliance, or the applicable Loan Party's response thereto or the
estimated costs thereof, shall change in any material respect.
The Loan Parties acknowledge and agree that neither the Loan
Documents nor the actions of the Collateral Agent or any Lender pursuant
thereto shall operate or be deemed (i) to place upon the Collateral Agent or
any Lender any responsibility for the operation, control, care, service,
management, maintenance or repair of property or facilities of the Loan Parties
or (ii) to make the Collateral Agent or any Lender the "owner" or "operator" of
any property or facilities of the Loan Parties or a "responsible party" within
the meaning of applicable Environmental Laws. The indemnification provisions
of this Section 7.01(j) shall survive the repayment of the Obligations and
discharge of any Liens granted under the Loan Documents.
(k) Further Assurances. Take such action and execute,
acknowledge and deliver, and cause each of its Subsidiaries to take such action
and execute, acknowledge and deliver, at its sole cost and expense, such
agreements, instruments or other documents as the Administrative Agent may
reasonably require from time to time in order (i) to carry out more effectively
the purposes of this Agreement and the other Loan Documents, (ii) to subject to
valid and perfected first priority Liens any of the Collateral or any other
property of any Loan Party and its Subsidiaries (subject to the limitations
contained in Section 7.01(b)), but, in the case of the common stock (or other
equity interests) of a Foreign Subsidiary, such Liens shall be limited to all
of the non-voting Capital Stock and 65% of the voting Capital Stock of such
Foreign Subsidiary, (iii) to establish and maintain the validity and
effectiveness of any of the Loan Documents and the validity, perfection and
priority of the Liens intended to be created thereby, and (iv) to better
assure, convey, grant, assign, transfer and confirm unto the Administrative
Agent, each Lender and the L/C Issuer the rights now or hereafter intended to
be granted to it under this Agreement or any other Loan Document. In
furtherance of the foregoing, to the maximum extent permitted by applicable
law, each Loan Party (i) authorizes the Administrative Agent to execute any
such agreements, instruments or other documents in such Loan Party's name and
to file such agreements, instruments or other documents in any appropriate
filing office, (ii) authorizes the Administrative Agent to file any financing
statement required
91
hereunder or under any other Loan Document, and any continuation statement or
amendment with respect thereto, in any appropriate filing office without the
signature of such Loan Party (including, without limitation, any such
financing statements that indicate the Collateral as "all assets" or words of
similar import), and (iii) ratifies the filing of any financing statement, and
any continuation statement or amendment with respect thereto, filed without
the signature of such Loan Party prior to the date of the Prior Financing
Agreement.
(l) Change in Collateral; Collateral Records. (i) Give the
Collateral Agent not less than 30 days' prior written notice of any change in
the location of any Collateral with an aggregate book value exceeding $100,000,
other than to locations set forth on Schedule 6.01(cc) and with respect to
which the Collateral Agent has filed financing statements and otherwise fully
perfected its Liens thereon, (ii) advise the Collateral Agent promptly, in
sufficient detail, of any material adverse change relating to the type,
quantity or quality of the Collateral or the Lien granted thereon and
(iii) execute and deliver, and cause each of its Subsidiaries to execute and
deliver, to the Collateral Agent for the benefit of the Agents and the Lenders
from time to time, solely for the Collateral Agent's convenience in maintaining
a record of Collateral, such written statements and schedules as the Collateral
Agent may reasonably require, designating, identifying or describing the
Collateral.
(m) Landlord Waivers; Collateral Access Agreements.
(i) At any time any Collateral with a book value in excess
of $100,000 (when aggregated with all other Collateral at the same location) is
located on any real property of a Loan Party (whether such real property is now
existing or acquired after the Effective Date) which is not owned by a Loan
Party, use reasonable efforts to obtain a Landlord Waiver; provided, that in
the event the Loan Parties are unable to obtain any such Landlord Waiver the
Administrative Agent may establish Reserves to the Borrowing Base as it deems
necessary with respect to any such Collateral; and
(ii) Use reasonable efforts to obtain Bailee Letters or
similar collateral access agreements, in form and substance reasonably
satisfactory to the Collateral Agent, providing access to Collateral located on
any premises not owned by a Loan Party in order to remove such Collateral from
such premises during an Event of Default; provided, that in the event the Loan
Parties are unable to obtain any such written access agreements, the
Administrative Agent may establish Reserves to the Borrowing Base as it deems
necessary with respect to any such Collateral.
(n) After Acquired Real Property. Upon the acquisition by it or
any of its Domestic Subsidiaries after the date of the Prior Financing
Agreement of any interest (whether fee or leasehold) in any real property
(wherever located) (each such interest being an "After Acquired Property")
(x) with a Current Value (as defined below) in excess of $250,000 in the case
of a fee interest, or (y) requiring the payment of annual rent exceeding in the
aggregate $100,000 in the case of a leasehold interest, promptly so notify the
Collateral Agent, setting forth with specificity a description of the interest
acquired, the location of the real property, any structures or improvements
thereon and either an appraisal or such Loan Party's good-faith estimate of the
current value of such real property (for purposes of this Section, the "Current
Value"). The Collateral Agent shall notify such Loan Party whether it intends
to require a Mortgage and the other documents referred to below (subject to the
limitations contained in Section 7.01(b)) or in the case of leasehold, a
leasehold Mortgage or Landlord's Waiver
92
(pursuant to Section 7.01(m) hereof). Upon receipt of such notice requesting a
Mortgage, the Person which has acquired such After Acquired Property shall
promptly furnish to the Collateral Agent the following, each in form and
substance reasonably satisfactory to the Collateral Agent: (i) a Mortgage with
respect to such real property and related assets located at the After Acquired
Property, each duly executed by such Person and in recordable form, (ii)
evidence of the recording of the Mortgage referred to in clause (i) above in
such office or offices as may be necessary or, in the opinion of the
Collateral Agent, desirable to create and perfect a valid and enforceable
first priority lien on the property purported to be covered thereby or to
otherwise protect the rights of the Collateral Agent and the Lenders
thereunder, (iii) a Title Insurance Policy, (iv) a survey of such real
property, certified to the Collateral Agent and to the issuer of the Title
Insurance Policy by a licensed professional surveyor reasonably satisfactory
to the Collateral Agent, (v) at the Collateral Agent's reasonable request,
Phase I Environmental Site Assessments, or such other non-intrusive and
non-Phase II environmental assessment as the Collateral Agent may reasonably
request, with respect to such real property, by a consultant reasonably
satisfactory to the Collateral Agent, (vi) in the case of a leasehold
interest, a certified copy of the lease between the landlord and such Person
with respect to such real property in which such Person has a leasehold
interest, and the certificate of occupancy with respect thereto, (vii) in the
case of a leasehold interest, an attornment and nondisturbance agreement
between the landlord (and any fee mortgagee) with respect to such real
property and the Collateral Agent, and (viii) such other documents or
instruments (including guarantees and opinions of counsel) as the Collateral
Agent may reasonably require. The Borrowers shall pay all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, and all title
insurance charges and premiums, in connection with each Loan Party's
obligations under this Section 7.01(n).
(o) Fiscal Year. Cause the Fiscal Year of the Parent and its
Subsidiaries to end on December 31 of each calendar year unless the
Administrative Agent consent to a change in such Fiscal Year (and appropriate
related changes to this Agreement).
(p) Borrowing Base. Maintain all Revolving A Loans and Letter of
Credit Obligations in compliance with the then current Borrowing Base.
(q) Use of Proceeds. Use the proceeds of the Loans and the
Letter of Credit Accommodations in accordance with Section 6.01(t).
(r) Post-Closing Actions.
(i) Deliver to the Administrative Agent, not later than
20 Business Days after the Effective Date (or such longer period to which the
Administrative Agent may agree), such Cash Management Agreements and depository
account, blocked account, lockbox account and similar agreements and other
documents (other than in respect of the five accounts held by D-M-E Company
with Comerica Bank as identified on Schedule 6.01(u)), each in form and
substance reasonably satisfactory to the Administrative Agent, as the
Administrative Agent may request with respect to the Loan Parties' cash
management system.
(ii) Cause, not later than April 7, 2004 (or such longer
period as may be agreed upon by the Collateral Agent in its sole discretion) an
updated Field Survey and Audit, dated not earlier than 7 days prior to the
Effective Date.
93
(iii) Cause, not later than April 30, 2004 (or such longer
period as may be agreed upon by the Collateral Agent in its sole discretion),
delivery of surveys re-certified to the Collateral Agent and to the issuer of
the applicable Title Insurance Policy for the Facilities located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 29215
▇▇▇▇▇▇▇▇▇▇ Highway, 10501 ▇▇▇▇▇▇▇ ▇-▇▇, ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
(iv) Cause, not later than April 30, 2004 (or such longer
period as may be agreed upon by the Collateral Agent in its sole discretion),
the five accounts held by D-M-E Company with Comerica Bank as identified on
Schedule 6.01(u) to be closed.
(s) Conference Calls. If requested by the Administrative Agent
upon reasonable advance notice, conduct a monthly conference call to update the
Administrative Agent and the Lenders on the progress of the Parent's proposed
issuance of Securities and the Borrowers' and their Subsidiaries' consolidated
financial condition, operations, prospects and respective businesses.
(t) Misplaced Notes. If found, the Misplaced Note Holder agrees
to promptly pledge, or cause to be pledged, the Misplaced Notes in favor of the
Collateral Agent, for the benefit of Lenders, as required under the Pledge
Agreement.
(u) Canadian Pension and Benefit Plans.
(i) For each existing Canadian Pension Plan of any Canadian
Borrowing Base Guarantor, such Canadian Borrowing Base Guarantor shall ensure
that such plan retains its registered status under and is administered in all
material respects in accordance with the applicable pension plan text, funding
agreement, the ITA and all other applicable laws.
(ii) For each Canadian Pension Plan hereafter adopted by any
Canadian Borrowing Base Guarantor that is required to be registered under the
ITA or any other applicable laws, that Canadian Borrowing Base Guarantor shall
use its best efforts to seek and receive confirmation in writing from the
applicable governmental authorities to the effect that such plan is registered
under the ITA and such other applicable laws.
(iii) For each existing and hereafter adopted Canadian
Pension Plan and Canadian Benefit Plan of any Canadian Borrowing Base
Guarantor, such Canadian Borrowing Base Guarantor shall in a timely fashion
perform in all material respects all statutory obligations (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with such plan and the funding media therefor.
(iv) Each Canadian Borrowing Base Guarantor shall deliver to
the Administrative Agent if requested by the Administrative Agent, promptly
after the filing thereof by such Canadian Borrowing Base Guarantor with any
applicable governmental authority, (i) copies of each annual and other return,
report or valuation with respect to each Canadian Pension Plan of such Canadian
Borrowing Base Guarantor; (ii) promptly after receipt thereof, a copy of any
direction, order, notice, ruling or opinion that such Canadian Borrowing Base
Guarantor may receive from any applicable governmental authority with respect
to any Canadian Pension Plan of such Canadian Borrowing Base Guarantor; and
(iii) notification within 30 days of any
94
increases having a cost to such Canadian Borrowing Base Guarantor in excess of
Cdn.$250,000 per annum, in the benefits of any existing Canadian Pension Plan
or Canadian Benefit Plan, or the establishment of any new Canadian Pension
Plan or Canadian Benefit Plan, or the commencement of contributions to any
such plan to which such Canadian Borrowing Base Guarantor was not previously
contributing.
Section 7.02 Negative Covenants. So long as any principal of or interest
on any Loan, Letter of Credit Obligation (other than any Letter of Credit
Obligation that is cash collateralized in accordance with the terms of this
Agreement) or any other Obligation (whether or not due), other than contingent
obligations or indemnification obligations for which no claim has been
asserted, shall remain unpaid or any Lender shall have any Commitment
hereunder, each Loan Party shall not, unless the Required Lenders shall
otherwise consent in writing:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien upon or with respect to any of its properties, whether now owned or
hereafter acquired; file or suffer to exist under the Uniform Commercial Code
or any similar law or statute of any jurisdiction, an effective financing
statement (or the equivalent thereof) creating an effective Lien thereto that
names it or any of its Subsidiaries as debtor; sign or suffer to exist any
security agreement authorizing any secured party thereunder to file such
financing statement (or the equivalent thereof); sell any of its property or
assets subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of Accounts) with recourse
to it or any of its Subsidiaries or assign or otherwise transfer, or permit any
of its Subsidiaries to assign or otherwise transfer, any account or other right
to receive income; other than, as to all of the above, Permitted Liens;
provided that the existence of any Lien that results from an Excluded Note
Event shall not be a violation of this clause (a) if (x) such was not consented
to by any Loan Party and (y) such Lien does not involve assets of the Loan
Parties with an aggregate fair market value in excess of $4,000,000.
(b) Indebtedness. Create, incur, assume, guarantee or suffer to
exist, or otherwise become or remain liable with respect to, or permit any of
its Subsidiaries to create, incur, assume, guarantee or suffer to exist or
otherwise become or remain liable with respect to, any Indebtedness other than
Permitted Indebtedness.
(c) Fundamental Changes; Dispositions. Wind-up, liquidate or
dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell,
lease or sublease, transfer or otherwise dispose of, whether in one transaction
or a series of related transactions, all or any part of its business, property
or assets, whether now owned or hereafter acquired (or agree to do any of the
foregoing), or purchase or otherwise acquire, whether in one transaction or a
series of related transactions, all or substantially all of the assets of any
Person (or any division thereof) (or agree to do any of the foregoing), or
permit any of its Subsidiaries to do any of the foregoing; provided, however,
that
(i) any Loan Party and its Subsidiaries may (A) sell
Inventory in the ordinary course of business, (B) dispose of excess, obsolete
or worn-out equipment in the ordinary course of business, (C) sell or otherwise
dispose of other property or assets for cash in an aggregate amount not less
than the fair market value of such property or assets, (D) sell or
95
otherwise dispose of their properties and assets related to the Designated
Business of such Persons to a third party (the "Designated Business
Disposition"), (E) sell or otherwise dispose of the Designated Real Property
to a third party (the "Designated Real Property Disposition"), (F) dispose of
cash or sell or liquidate Permitted Investments or other cash equivalents, (G)
enter, in the ordinary course of business, into operating leases and subleases
or licenses or sublicenses of any property, provided that the Net Cash
Proceeds of any disposition (x) in the case of clause (B) above, do not exceed
$1,000,000 in the aggregate, (y) in the case of clause (C) above, do not
exceed $5,000,000 in the aggregate and (z) in all cases, are paid to the
Administrative Agent for the benefit of the Agents and the Lenders to be
applied, to the extent required, pursuant to the terms of Section
2.05(c)(iii);
(ii) any Guarantor (x) may be merged into any Loan Party, or
may be consolidated or amalgamated with another Loan Party, so long as (A) no
other provision of this Agreement would be violated thereby, (B) such Guarantor
gives the Administrative Agent at least 30 days' prior written notice of such
merger, consolidation or amalgamation, (C) no Default or Event of Default shall
have occurred and be continuing either before or after giving effect to such
transaction, (D) the Lenders' rights in any Collateral, including, without
limitation, the existence, perfection and priority of any Lien thereon, are not
adversely affected by such merger, consolidation or amalgamation and (E) the
surviving Person's Capital Stock is the subject of a Pledge Agreement, in each
case, which is in full force and effect on the date of and immediately after
giving effect to such merger, consolidation or amalgamation, or (y) may sell or
otherwise dispose of, all or any part of its business, property or assets,
whether now owned or hereafter acquired to any other Loan Party so long as (A)
no other provision of this Agreement would be violated thereby, (B) no Default
or Event of Default shall have occurred and be continuing either before or
after giving effect to such transaction and (C) the Lenders' rights in any
Collateral, including, without limitation, the existence, perfection and
priority of any Lien thereon, are not adversely affected by such sale or other
disposition;
(iii) any wholly-owned Domestic Subsidiary that is not a Loan
Party (x) may be merged into any other wholly-owned Domestic Subsidiary, or may
be consolidated or amalgamated with another wholly-owned Domestic Subsidiary,
so long as (A) no other provision of this Agreement would be violated thereby,
(B) such Loan Party gives the Administrative Agent at least 30 days' prior
written notice of such merger, consolidation or amalgamation, (C) no Default or
Event of Default shall have occurred and be continuing either before or after
giving effect to such transaction, (D) the Lenders' rights in any Collateral,
including, without limitation, the existence, perfection and priority of any
Lien thereon, are not adversely affected by such merger, consolidation or
amalgamation and (E) the surviving Domestic Subsidiary, if any, is joined as a
Loan Party hereunder and is a party to a Guaranty and a Security Agreement and
the Capital Stock of such surviving Domestic Subsidiary is the subject of a
Pledge Agreement, in each case, which is in full force and effect on the date
of and immediately after giving effect to such merger, consolidation or
amalgamation, or (y) may sell or otherwise dispose of, all or any part of its
business, property or assets, whether now owned or hereafter acquired to any
other wholly-owned Domestic Subsidiary so long as (A) no other provision of
this Agreement would be violated thereby, (B) no Default or Event of Default
shall have occurred and be continuing either before or after giving effect to
such transaction and (C) the Lenders' rights in any Collateral, including,
without limitation, the existence, perfection and priority of any Lien thereon,
are not adversely affected by such sale or other disposition;
96
(iv) any Foreign Subsidiary (other than any Foreign
Subsidiary of Milacron Capital ) (x) may be merged into any other Foreign
Subsidiary (other than any Foreign Subsidiary of Milacron Capital), or may be
consolidated or amalgamated with another Foreign Subsidiary (other than any
Foreign Subsidiary of Milacron Capital), so long as (A) no other provision of
this Agreement would be violated thereby, (B) no Default or Event of Default
shall have occurred and be continuing either before or after giving effect to
such transaction, and (C) to the extent such Foreign Subsidiary is owned
directly by a Loan Party, all of the non-voting Capital Stock and 65% of the
voting Capital Stock of the surviving Foreign Subsidiary is the subject of a
Pledge Agreement, which is in full force and effect on the date of and
immediately after giving effect to such merger, consolidation or amalgamation
or (y) may sell or otherwise dispose of, all or any part of its business,
property or assets, whether now owned or hereafter acquired to any other
Foreign Subsidiary (other than any Foreign Subsidiary of Milacron Capital) so
long as (A) no other provision of this Agreement would be violated thereby, and
(B) no Default or Event of Default shall have occurred and be continuing either
before or after giving effect to such transaction; and
(v) any Foreign Subsidiary of Milacron Capital (other than
Milacron B.V.) (x) may be merged into any other Foreign Subsidiary of Milacron
Capital, or may be consolidated or amalgamated with another Foreign Subsidiary
of Milacron Capital, so long as (A) no other provision of this Agreement would
be violated thereby, (B) no Default or Event of Default shall have occurred and
be continuing either before or after giving effect to such transaction, and (C)
to the extent such Foreign Subsidiary is owned directly by Milacron Capital,
all of the non-voting Capital Stock and 65% of the voting Capital Stock of the
surviving Foreign Subsidiary is the subject of a Pledge Agreement, which is in
full force and effect on the date of and immediately after giving effect to
such merger, consolidation or amalgamation or (y) may sell or otherwise dispose
of, all or any part of its business, property or assets, whether now owned or
hereafter acquired to any other Foreign Subsidiary of Milacron Capital so long
as (A) no other provision of this Agreement would be violated thereby, and (B)
no Default or Event of Default shall have occurred and be continuing either
before or after giving effect to such transaction.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any change in the nature of its business as described in
Section 6.01(l).
(e) Loans, Advances, Investments, Etc. Make or commit or agree
to make any loan, advance, guarantee of obligations, other extensions of credit
or capital contributions to, or hold or invest in or commit or agree to hold or
invest in, or purchase or otherwise acquire or commit or agree to purchase or
otherwise acquire any shares of the Capital Stock, bonds, notes, debentures or
other securities of, or make or commit or agree to make any other investment
in, any other Person, or purchase or own any futures contract or otherwise
become liable for the purchase or sale of currency or other commodities at a
future date in the nature of a futures contract, or permit any of its
Subsidiaries to do any of the foregoing, except for:
(i) investments existing on the date of the Prior Financing
Agreement, as set forth on Schedule 7.02(e) hereto, but not any increase in the
amount thereof as set forth in such Schedule or any other material modification
of the terms thereof,
97
(ii) investments permitted under clause (j) of the
definition of "Permitted Indebtedness",
(iii) Permitted Investments,
(iv) investments not constituting loans or advances by any
Domestic Loan Party in any other Domestic Loan Party,
(v) loans and advances to directors, officers and employees
of the Parent and its Subsidiaries in the ordinary course of business in an
aggregate principal amount not to exceed $250,000 at any one time outstanding,
(vi) investments under Hedging Agreements entered into in
the ordinary course of financial management and not for speculative purposes,
(vii) pledges and deposits permitted under clause (f) of the
definition of Permitted Liens,
(viii)investments in deposit accounts in the ordinary course
of business,
(ix) investments received in connection with an Insolvency
Proceeding of any supplier, customer or other Person having an obligation in
favor of any Loan Party as a result of a settlement of delinquent accounts and
deposits with, such customers, suppliers or other Persons arising in the
ordinary course of business,
(x) investments existing on the Effective Date not
constituting loans or advances in the Subsidiaries of the Loan Parties and the
creation of new Subsidiaries by any Loan Party so long as such creation is in
compliance with Section 7.01(b),
(xi) investments by the Parent the consideration of which
consists solely of the issuance of the Parent's common Capital Stock to the
third party to the extent (w) the aggregate market value of all such issuances
(measured at the time of each such issuance) does not exceed $5,000,000, (x)
immediately before and after the making of any such investment, there shall
exist no Event of Default, (y) the Loan Parties do not incur any material
liabilities related to such investment, and (z) the rights of the
Administrative Agent and the Lenders are not adversely affected by any such
investment,
(xii) investments in China JV by any Subsidiary of the Parent
that is not a Loan Party to the extent that such investment will not involve,
require, result in or otherwise obligate any cash or cash consideration made or
to be made by the Loan Parties in an aggregate amount exceeding $1,000,000,
(xiii)other investments not otherwise permitted under clauses
(i) through (xii) above or (xiv) through (xv) below in an aggregate amount not
exceeding $500,000 and to the extent such investments are made within the
United States,
(xiv) investments constituting Contingent Obligations to the
extent permitted under clause (h) or (m) of the definition of Permitted
Indebtedness,
98
(xv) investments constituting Accounts arising in the
ordinary course of business, and
(xvi) the acquisition by D-M-E Company of all the shares of
Capital Stock owned by D-M-E U.S.A. Inc. in (x) Amalgamated Diemold D-M-E Pty.
Ltd. (Australia), (y) D-M-E Company (India) Pvt. Ltd. and (z) D-M-E Engineering
Pty. Ltd. (Singapore).
(f) Lease Obligations. Create, incur or suffer to exist, or
permit any of its Subsidiaries to create, incur or suffer to exist, any
obligations as lessee (i) for the payment of rent for any real or personal
property in connection with any sale and leaseback transaction, or (ii) for the
payment of rent for any real or personal property under leases or agreements to
lease other than (A) Capitalized Lease Obligations which would not cause the
aggregate amount of all obligations under Capitalized Leases entered into after
the Effective Date owing by all Loan Parties and their Subsidiaries to exceed
the amounts set forth in subsection (g) of this Section 7.02, and (B) Operating
Lease Obligations which would not cause the aggregate amount of annual payments
under all Operating Lease Obligations owing by all Loan Parties and their
Subsidiaries to exceed $16,500,000 (exclusive of renewals and extensions, no
more than $2,300,000 of which, on an annualized basis, will be incurred after
the Effective Date).
(g) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditure (by purchase or Capitalized
Lease) that would cause the aggregate amount of all Capital Expenditures made
by the Loan Parties and their Subsidiaries to exceed $2,500,000 for the fiscal
quarter ending March 31, 2004, $7,500,000 for the two fiscal quarters ending
June 30, 2004, $12,500,000 for the three fiscal quarters ending September 30,
2004, $16,500,000 for the four fiscal quarters ending December 31, 2004 and
$2,000,000 for the period from January 1, 2005, through the Final Maturity
Date.
(h) Restricted Payments. (i) Declare or pay any dividend or
other distribution, direct or indirect, on account of any Capital Stock of any
Loan Party or any of its Subsidiaries, now or hereafter outstanding, (ii) make
any repurchase, redemption, retirement, defeasance, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Capital Stock of any Loan Party or any direct or indirect parent of any Loan
Party, now or hereafter outstanding, (iii) make any payment to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights for
the purchase or acquisition of shares of any class of Capital Stock of any Loan
Party, now or hereafter outstanding, (iv) return any Capital Stock to any
shareholders or other equity holders of any Loan Party or any of its
Subsidiaries, or make any other distribution of property, assets, shares of
Capital Stock, warrants, rights, options, obligations or securities thereto as
such or (v) pay any management fees or any other fees or expenses (including
the reimbursement thereof by any Loan Party or any of its Subsidiaries)
pursuant to any management, consulting or other services agreement to any of
the shareholders or other equityholders of any Loan Party or any of its
Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of
any Loan Party; provided, however, (A) any Subsidiary of any Loan Party may pay
dividends or make other distributions to any Loan Party, (B) the Parent may pay
dividends in the form of common Capital Stock, (C) the Parent may pay dividends
or other payments on its existing preferred stock or the New Euro Securities
issued pursuant to the applicable Note Restructuring Transaction, (D) any
Subsidiary that is not a Loan Party may pay dividends or make other
distributions to any Loan Party or any Subsidiary of a Loan Party, (E)
99
any non- wholly owned Subsidiary of a Loan Party may pay dividends or make
other distributions to its shareholders generally so long as the Loan Party or
its respective Subsidiary which owns Capital Stock in the Subsidiary paying
such dividends or making such other distributions receives at least its
proportionate share thereof (based upon its relative holdings of Capital Stock
in the Subsidiary paying such dividends and taking into account relative
preferences, if any, of the various classes of Capital Stock in such
Subsidiary), (F) the Parent may retire, acquire or terminate any warrant,
option or other right in its Capital Stock upon exercise in a transaction in
which neither Parent nor any of its Subsidiaries makes any cash payment in
respect of such exercise, (G) the Parent may issue New US Securities in
exchange for or upon conversion of New US Securities to the extent required by
the Mizuho/Glencore Transaction Documents, (H) the Parent may use up to
$30,000,000 of the Net Cash Proceeds of a "Rights Offering" (as defined in the
Mizuho/Glencore Transaction Documents as in effect on the date of the Prior
Financing Agreement) to redeem preferred stock in accordance with the terms of
the Mizuho/Glencore Transaction Documents (a "Rights Offer Redemption") and
(I) Parent may make semi-annual interest payments on the New US Securities
that constitute debt and quarterly dividend payments on the New US Securities
that are equity, if before and after giving effect thereto, Excess
Availability exceeds Required Availability.
(i) Federal Reserve Regulations. Permit any Loan or the proceeds
of any Loan under this Agreement to be used for any purpose that would cause
such Loan to be a margin loan under the provisions of Regulation T, U or X of
the Board.
(j) Transactions with Affiliates. Enter into, renew, extend or
be a party to, or permit any of its Subsidiaries to enter into, renew, extend
or be a party to, any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease, transfer or exchange of property
or assets of any kind or the rendering of services of any kind) with any
Affiliate, except (i) in the ordinary course of business in a manner and to an
extent consistent with past practice and necessary or desirable for the prudent
operation of its business, for fair consideration and on terms no less
favorable to it or its Subsidiaries than would be obtainable in a comparable
arm's length transaction with a Person that is not an Affiliate thereof,
(ii) transactions with another Loan Party, (iii) transactions permitted by
Section 7.02(e), (iv) to the extent any Euro Note Holder is an Affiliate of the
Parent or any of its Subsidiaries, transactions in connection with the Euro
Restructuring Transaction, (v) the Mizuho/Glencore Transactions (including any
Rights Offer Redemption), and (vi) compensation, expense reimbursement and
indemnification arrangements with directors, officers, employees or consultants
in the ordinary course of business, including the issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the Parent made in the ordinary
course of business consistent with past practices.
(k) Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries. Create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any Subsidiary of any Loan Party (i) to pay
dividends or to make any other distribution on any shares of Capital Stock of
such Subsidiary owned by any Loan Party or any of its Subsidiaries, (ii) to pay
or prepay or to subordinate any Indebtedness owed to any Loan Party or any of
its Subsidiaries, (iii) to make loans or advances to any Loan Party or any of
its Subsidiaries or (iv) to transfer any
100
of its property or assets to any Loan Party or any of its Subsidiaries, or
permit any of its Subsidiaries to do any of the foregoing; provided, however,
that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall
prohibit or restrict compliance with:
(A) this Agreement and the other Loan Documents;
(B) any agreements in effect on the date of this
Agreement and described on Schedule 7.02(k) and any renewal,
extension, refinance or replacement thereof that does not expand
the scope of any such encumbrance or restriction;
(C) any applicable law, rule or regulation
(including, without limitation, applicable currency control laws
and applicable state corporate statutes restricting the payment of
dividends in certain circumstances);
(D) in the case of clause (iv) any agreement setting
forth customary restrictions on the subletting, assignment or
transfer of any property or asset that is a lease, license,
conveyance or similar contract in respect of such property or
assets;
(E) in the case of clause (iv) any agreement,
instrument or other document evidencing a Permitted Lien from
restricting on customary terms the transfer of any property or
assets subject thereto;
(F) agreements related to the Indebtedness permitted
under clause (i) of the definition of Permitted Indebtedness to the
extent any such restrictions are limited to the Foreign
Subsidiaries that are parties to such agreements;
(G) the Mizuho/Glencore Transaction Documents and any
New US Securities; or
(H) the governing agreement and other agreements,
instruments or documents entered into in connection with the
formation of the China JV and any renewal, extension, refinancing
or replacement thereof that does not expand the scope of any such
encumbrance or restriction.
(l) Limitation on Issuance of Capital Stock. Issue or sell or
enter into any agreement or arrangement for the issuance and sale of, or permit
any of its Subsidiaries to issue or sell or enter into any agreement or
arrangement for the issuance and sale of, any shares of its Capital Stock, any
securities convertible into or exchangeable for its Capital Stock or any
warrants other than the issuance of common Capital Stock of the Parent or
warrants or options to acquire any such common Capital Stock to the extent such
issuances are permitted pursuant to Section 7.02(e)(xi) or Section 7.02(m)(iv)
(including, without limitation, issuances pursuant to the Mizuho/Glencore
Transaction Documents or New Euro Securities) and other than the China JV in
connection with the formation thereof.
101
(m) Modifications of Indebtedness, Organizational Documents and
Certain Other Agreements; Etc. (i) Amend, modify or otherwise change (or
permit the amendment, modification or other change in any manner of) any of the
provisions of any of its or its Subsidiaries' Indebtedness or of any instrument
or agreement (including, without limitation, any purchase agreement, indenture,
loan agreement, guaranty or security agreement) relating to any such
Indebtedness if such amendment, modification or change would shorten the final
maturity or average life to maturity of, or require any payment to be made
earlier than the date originally scheduled on, such Indebtedness, would
increase the interest rate applicable to such Indebtedness, would change the
subordination provision, if any, of such Indebtedness, or would otherwise be
adverse to the Agents or the Lenders or the issuer of such Indebtedness in any
respect, provided that, in the case of the Euro Indenture, the Euro Notes, the
New US Securities, no amendment, modification or other change shall be made to
any of such documents, except as otherwise permitted under the definition of
Permitted Indebtedness, (ii) except for the Obligations and Indebtedness
permitted under clause (j) of the definition Permitted Indebtedness, make any
voluntary or optional payment, prepayment, redemption, defeasance, sinking fund
payment or other acquisition for value of any of its or its Subsidiaries'
Indebtedness (including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for the purpose
of paying any portion of such Indebtedness when due), or refund, refinance,
replace or exchange any other Indebtedness for any such Indebtedness (except to
the extent any such optional payment, prepayment, redemption, defeasance,
sinking fund payment, acquisition, refund, refinancing, replacement or exchange
is otherwise expressly permitted by the definition of Permitted Indebtedness,
the Subordination and Intercreditor Agreement or referred to in Section
2.05(c)(vii) or Section 2.05(c)(ix) (whether or not requiring a prepayment of
the Loans pursuant to either such section) or contemplated by the
Mizuho/Glencore Transactions or in the proviso to the definition of Euro Note
Restructuring Transaction), or make any payment, prepayment, redemption,
defeasance, sinking fund payment or repurchase of any outstanding Indebtedness
as a result of any asset sale, change of control, issuance and sale of debt or
equity securities or similar event, or give any notice with respect to any of
the foregoing, (iii) except as permitted by Section 7.02(c), amend, modify or
otherwise change its name, jurisdiction of organization, organizational
identification number or FEIN or (iv) amend, modify or otherwise change its
certificate of incorporation or bylaws (or other similar organizational
documents), including, without limitation, by the filing or modification of any
certificate of designation, or any agreement or arrangement entered into by it,
with respect to any of its Capital Stock (including any shareholders'
agreement), or enter into any new agreement with respect to any of its Capital
Stock, except any such amendments, modifications or changes or any such new
agreements or arrangements pursuant to this clause (iv) that (A) are in
connection with the Mizuho/Glencore Transactions or the Euro Note Restructuring
Transaction or (B) either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(n) Investment Company Act of 1940. Engage in any business,
enter into any transaction, use any securities or take any other action or
permit any of its Subsidiaries to do any of the foregoing, that would cause it
or any of its Subsidiaries to become subject to the registration requirements
of the Investment Company Act of 1940, as amended, by virtue of being an
"investment company" or a company "controlled" by an "investment company" not
entitled to an exemption within the meaning of such Act.
102
(o) Compromise of Accounts. Compromise or adjust any Account (or
extend the time of payment thereof) or grant any discounts, allowances or
credits or permit any of its Subsidiaries to do so other than, provided no
Default or Event of Default has occurred and is continuing, in the ordinary
course of its business.
(p) ERISA . (i) Engage, or permit any ERISA Affiliate to
intentionally engage, in any transaction described in Section 4069 of ERISA;
(ii) engage, or permit any ERISA Affiliate to intentionally engage, in any
prohibited transaction described in Section 406 of ERISA or 4975 of the
Internal Revenue Code for which a statutory or class exemption is not available
or a private exemption has not previously been obtained from the U.S.
Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any
employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees after termination of employment other than as
(x) set forth in Schedule 6.01(i) in accordance with the terms of such plans,
(y) provided to certain employees upon the termination of employment of any
such employee in the ordinary course of business, or (z) required by Section
601 of ERISA Section 4980B of the Internal Revenue Code or applicable law; (iv)
fail to make any contribution or payment to any Multiemployer Plan which it or
any ERISA Affiliate may be required to make under any agreement relating to
such Multiemployer Plan, or any law pertaining thereto; or (v) fail, or permit
any ERISA Affiliate to fail, to pay any required installment or any other
payment required under Section 412 of the Internal Revenue Code on or before
the due date for such installment or other payment.
(q) Environmental. Permit Handling, Release or disposal of
Hazardous Materials at any property owned or leased by it or any of its
Subsidiaries, except in compliance with Environmental Laws and except for such
Handling, Release or disposal of Hazardous Materials that could not reasonably
be expected to result in a Material Adverse Effect.
(r) Certain Agreements. Agree to any material amendment or other
material change to or material waiver of any of its rights under any Material
Contract if such amendment, change or waiver is adverse to the interests of any
Loan Party other than any such material amendment, change or waiver to the Euro
Notes or the Euro Indenture pursuant to the Euro Note Restructuring
Transaction.
(s) Misplaced Notes. Create or suffer to exist any Lien upon or
with respect to any of the Misplaced Notes except for the Lien created by the
Loan Documents.
Section 7.03 Financial Covenants. So long as any principal of or
interest on any Loan, Letter of Credit Obligation (other than any Letter of
Credit Obligation that is cash collateralized in accordance with the terms of
this Agreement) or any other Obligation (whether or not due), other than
contingent obligations or indemnification obligations for which no claim has
been asserted, shall remain unpaid or any Lender shall have any Commitment
hereunder, each Loan Party shall not, unless the Required Lenders shall
otherwise consent in writing:
(a) Cumulative Consolidated EBITDA. Permit Consolidated EBITDA
of the Parent on a cumulative basis for any period set forth in the table below
to be less than the applicable amount corresponding to such fiscal month set
forth below:
103
Cumulative Consolidated
Period EBITDA
------ ------
March 1, 2004 - March 31, 2004 $5,103,000
March 1, 2004 - April 30, 2004 $3,968,000
March 1, 2004 - May 31, 2004 $5,324,000
March 1, 2004 - June 30, 2004 $14,674,000
March 1, 2004 - July 31, 2004 $13,719,000
March 1, 2004 - August 31, 2004 $16,154,000
March 1, 2004 - September 30, 2004 $27,491,000
March 1, 2004 - October 31, 2004 $27,429,000
March 1, 2004 - November 30, 2004 $30,348,000
March 1, 2004 - December 31, 2004 $44,230,000
March 1, 2004 - January 31, 2005 $43,569,000
March 1, 2004 - February 28, 2005 $45,738,000
(b) Minimum Availability. At any time, permit Availability to be
less than $10,000,000.
ARTICLE VIII.
MANAGEMENT, COLLECTION AND STATUS OF
ACCOUNTS RECEIVABLE AND OTHER COLLATERAL
Section 8.01 Collection of Accounts; Management of Collateral.
(a) Within 20 Business Days after the Effective Date (or such
later time as may be agreed to by the Administrative Agent), the Domestic Loan
Parties shall (i) establish and maintain cash management services of a type and
on terms satisfactory to the Administrative Agent at one or more of the banks
set forth on Schedule 8.01 (each, a "Cash Management Bank"), and shall take
such reasonable steps to enforce, collect and receive all amounts owing on the
Accounts of the Domestic Loan Parties or any of their Domestic Subsidiaries,
and (ii) deposit or cause to be deposited promptly, and in any event no later
than the first Business Day after the date of receipt thereof, all proceeds in
respect of any Collateral and all Collections and other amounts received by any
Domestic Loan Party (including payments made by the Account Debtors directly to
any Domestic Loan Party) into a Cash Management Account or the Administrative
Agent's Account; provided, however, that, subject to the limitations set forth
in this Agreement, the Domestic Loan Parties and their Domestic Subsidiaries
shall be permitted to maintain and fund (i) Accounts of Domestic Loan Parties
and their Domestic Subsidiaries other than Cash Management Accounts in an
aggregate amount not in excess of $4,000,000 at any one time and (ii) the
Excluded Deposit Accounts (as defined in the Security Agreement). The
Administrative Agent shall charge the Loan Account on the last day of each
month with one (1) collection day for all such Collections.
(b) Within 20 Business Days after the Effective Date (or such
later time as may be agreed to by the Administrative Agent), the Domestic Loan
Parties shall, with respect to
104
each Cash Management Account, deliver to the Administrative Agent a Cash
Management Agreement with respect to such Cash Management Account.
Notwithstanding the foregoing, promptly upon the request of the Administrative
Agent, each Loan Party shall deliver a Cash Management Agreement to the
Administrative Agent with respect to any Cash Management Account identified by
the Administrative Agent. Each Cash Management Agreement shall provide, among
other things, that the Cash Management Bank shall, from and after the receipt
of a notice (an "Activation Notice") from the Administrative Agent (which
Activation Notice may be given by the Administrative Agent (i) with respect to
Depository Accounts, at any time in its sole discretion and (ii) with respect
to Disbursement Accounts, the Concentration Account and any Securities
Accounts, during the occurrence and continuation of an Event of Default) to
forward all cash deposited into the Cash Management Accounts covered thereby
by electronic funds transfer (including, but not limited to, ACH transfers) on
each Business Day to the Administrative Agent's Account.
(c) So long as no Default or Event of Default has occurred and is
continuing, the Administrative Borrower may amend Schedule 8.01 to add or
replace a Cash Management Account Bank or Cash Management Account; provided,
however, that (i) such prospective Cash Management Bank shall be reasonably
satisfactory to the Administrative Agent and the Administrative Agent shall
have consented in writing in advance to the opening of such Cash Management
Account with the prospective Cash Management Bank, and (ii) prior to the time
of the opening of such Cash Management Account, each Domestic Loan Party and
such prospective Cash Management Bank shall have executed and delivered to the
Administrative Agent a Cash Management Agreement. Each Domestic Loan Party
shall close any of its Cash Management Accounts (and establish replacement cash
management accounts in accordance with the foregoing sentence) promptly and in
any event within 30 days of notice from the Administrative Agent that the
creditworthiness of any Cash Management Bank is no longer acceptable in the
Administrative Agent's reasonable judgment, or as promptly as practicable and
in any event within 60 days of notice from the Administrative Agent that the
operating performance, funds transfer, or availability procedures or
performance of the Cash Management Bank with respect to Cash Management
Accounts or the Administrative Agent's liability under any Cash Management
Agreement with such Cash Management Bank is no longer acceptable in the
Administrative Agent's reasonable judgment.
(d) The Cash Management Accounts shall be cash collateral
accounts, with all cash, checks and similar items of payment in such accounts
securing payment of the Obligations, and in which the Domestic Loan Parties are
hereby deemed to have granted a Lien to the Administrative Agent for the
benefit of the Administrative Agent and the Lenders. All checks, drafts,
notes, money orders, acceptances, cash and other evidences of Indebtedness
received directly by any Domestic Loan Party as proceeds of any Collateral
shall be held by such Loan Party in trust for the Administrative Agent and the
Lenders and upon receipt be deposited by such Loan Party in original form and
no later than the next Business Day after receipt thereof into the
Administrative Agent's Account; provided, however, all Net Cash Proceeds
received directly by such Domestic Loan Party pursuant to an event described in
Section 2.05(c)(iii), (iv) or (v) shall be held by such Loan Party in trust for
the Administrative Agent and the Lenders and upon receipt be deposited by the
Loan Party in original form and no later than the next Business Day after
receipt thereof into the Administrative Agent's Account. A Domestic Loan Party
shall not commingle such collections with such Loan Party's own funds or the
funds of any Subsidiary
105
or Affiliate of such Loan Party or with the proceeds of any assets not
included in the Collateral. No checks, drafts or other instruments received by
the Administrative Agent shall constitute final payment to the Administrative
Agent unless and until such checks, drafts or other instruments have actually
been collected.
(e) After the occurrence and during the continuance of an Event
of Default, the Collateral Agent may send a notice of assignment and/or notice
of the Lenders' security interest to any and all Account Debtors or third
parties holding or otherwise concerned with any of the Collateral, and
thereafter the Collateral Agent shall have the sole right to collect the
Accounts and/or take possession of the Collateral and the books and records
relating thereto. The Domestic Loan Parties shall not, without prior written
consent of the Collateral Agent, grant any extension of time of payment of any
Account, compromise or settle any Account for less than the full amount
thereof, release, in whole or in part, any Person or property liable for the
payment thereof, or allow any credit or discount whatsoever thereon, except, in
the absence of a continuing Event of Default, as permitted by Section 7.02(o).
(f) Each Domestic Loan Party hereby appoints the Administrative
Agent or its designee on behalf of such Administrative Agent as the Domestic
Loan Parties' attorney-in-fact with power exercisable only during the
continuance of an Event of Default to endorse any Domestic Loan Party's name
upon any notes, acceptances, checks, drafts, money orders or other evidences of
payment relating to the Accounts, to sign any Domestic Loan Party's name on any
invoice or ▇▇▇▇ of lading relating to any of the Accounts, drafts against
Account Debtors with respect to Accounts, assignments and verifications of
Accounts and notices to Account Debtors with respect to Accounts, to send
verification of Accounts, and to notify the Postal Service authorities to
change the address for delivery of mail addressed to any Domestic Loan Party to
such address as the Administrative Agent may designate and to do all other acts
and things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall
not be liable for any acts of omission or commission (other than acts of
omission or commission constituting gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction), or for
any error of judgment or mistake of fact or law; this power being coupled with
an interest is irrevocable until all of the Loans Letter of Credit Obligations
(other than Letter of Credit Obligations that are cash collateralized pursuant
to the terms of this Agreement) and other Obligations under the Loan Documents
are Paid in Full and all of the Loan Documents are terminated.
(g) Nothing herein contained shall be construed to constitute the
Administrative Agent as agent of any Loan Party for any purpose whatsoever, and
the Administrative Agent shall not be responsible or liable for any shortage,
discrepancy, damage, loss or destruction of any part of the Collateral wherever
the same may be located and regardless of the cause thereof (other than from
acts of omission or commission constituting gross negligence or willful
misconduct as determined by a final judgment of a court
106
of competent jurisdiction). The Administrative Agent shall not, under any
circumstance or in any event whatsoever, have any liability for any error or
omission or delay of any kind occurring in the settlement, collection or
payment of any of the Accounts or any instrument received in payment thereof
or for any damage resulting therefrom (other than acts of omission or
commission constituting gross negligence or willful misconduct as determined
by a final judgment of a court of competent jurisdiction). The Administrative
Agent, by anything herein or in any assignment or otherwise, does not assume
any of the obligations under any contract or agreement assigned to the
Administrative Agent and shall not be responsible in any way for the
performance by any Loan Party of any of the terms and conditions thereof.
(h) If any Account includes a charge for any tax payable to any
Governmental Authority, the Administrative Agent is hereby authorized (but in
no event obligated) in its discretion to pay the amount thereof to the proper
taxing authority for the Loan Parties' account and to charge the Loan Parties
therefor.
(i) No Loan Party shall, or shall cause or permit any Subsidiary
thereof to, accumulate or maintain cash in Disbursement Accounts as of any date
of determination in excess of checks outstanding against such accounts as of
that date and amounts necessary to meet minimum balance requirements. To the
extent cash has accumulated in D-M-E Company's account no. 1XXXX01 at Comerica
Bank as of any date of determination in excess of checks outstanding against
such account as of that date and amounts necessary to meet minimum balance
requirements, D-M-E Company shall, within one (1) Business Day, transfer such
excess cash out of such account.
(j) Notwithstanding any other terms set forth in the Loan
Documents, the rights and remedies of the Administrative Agent and the Lenders
herein provided, and the obligations of the Loan Parties set forth herein, are
cumulative of, may be exercised singly or concurrently with, and are not
exclusive of, any other rights, remedies or obligations set forth in any other
Loan Document or as provided by law.
Section 8.02 Accounts Documentation. The Domestic Loan Parties will at
such intervals as the Administrative Agent may reasonably require, execute and
deliver confirmatory written assignments of the Accounts to the Administrative
Agent and furnish such further schedules and/or information as the
Administrative Agent may reasonably require relating to the Accounts,
including, without limitation, sales invoices or the equivalent, credit memos
issued, remittance advices, reports and copies of deposit slips and copies of
original shipping or delivery receipts for all merchandise sold. In addition,
the Domestic Loan Parties shall notify the Administrative Agent of any
non-compliance in respect of the representations, warranties and covenants
contained in Section 8.03. The items to be provided under this Section 8.02
are to be in form reasonably satisfactory to the Administrative Agent and are
to be executed and delivered to the Administrative Agent from time to time
solely for their convenience in maintaining records of the Collateral. The
Domestic Loan Parties' failure to give any of such items to the Administrative
Agent shall not affect, terminate, modify or otherwise limit the Collateral
Agent's Lien on the Collateral. The Domestic Loan Parties shall not re-date
any invoice or sale or make sales on extended dating beyond that customary in
such Loan Parties' industry, and shall not re-▇▇▇▇ any Accounts without
promptly disclosing the same to the Administrative Agent and providing the
Administrative Agent with a copy of such re-billing, identifying the same as
such. If the Domestic Loan Parties become aware of anything materially
detrimental to any of such Loan Parties' material customers' credit, such Loan
Parties will promptly advise the Administrative Agent thereof.
107
Section 8.03 Status of Accounts and Other Collateral. With respect to
any Account of any Domestic Loan Party that is included by the Borrowers as an
Eligible Account in the calculation of the Borrowing Base, each Domestic Loan
Party covenants, represents and warrants: (a) such Loan Party shall be the
sole owner, free and clear of all Liens (except for the Liens granted in the
favor of the Collateral Agent for the benefit of the Collateral Agent and the
Lenders and Permitted Liens), and shall be fully authorized to sell, transfer,
pledge and/or grant a security interest in each and every item of said
Collateral; (b) each such Account shall be a good and valid account
representing an undisputed bona fide indebtedness incurred or an amount
indisputably owed by the Account Debtor therein named, for a fixed sum as set
forth in the invoice relating thereto with respect to an absolute sale and
delivery upon the specified terms of goods sold or services rendered by such
Loan Party; (c) no such Account shall be subject to any defense, offset,
counterclaim, discount or allowance except as may be stated in the invoice
relating thereto, discounts and allowances as may be customary in such Loan
Party's business and as otherwise disclosed to the Collateral Agent; (d) none
of the transactions underlying or giving rise to any such Account shall
violate any applicable state or federal laws or regulations, and all documents
relating thereto shall be legally sufficient under such laws or regulations
and shall be legally enforceable in accordance with their terms; (e) no
agreement under which any deduction or offset of any kind, other than normal
trade discounts, may be granted or shall have been made by such Loan Party at
or before the time such Account is created; (f) all agreements, instruments
and other documents relating to any Account shall be true and correct and in
all material respects what they purport to be; (g) such Loan Party shall
maintain books and records pertaining to said Collateral in such detail, form
and scope as the Collateral Agent shall reasonably require; (h) such Loan
Party shall promptly notify the Collateral Agent if any Account arises out of
contracts with any Governmental Authority, and will execute any instruments
and take any steps reasonably required by the Collateral Agent in order that
all monies due or to become due under any such contract shall be assigned to
the Collateral Agent and notice thereof given to such Governmental Authority
under the Federal Assignment of Claims Act or any similar state or local law;
(i) such Loan Party will, immediately upon learning thereof, report to the
Collateral Agent any material loss or destruction of, or substantial damage
to, any of the Collateral, and any other matters affecting the value,
enforceability or collectibility of any of the Collateral; (j) if any amount
payable under or in connection with any such Account is evidenced by a
promissory note or other instrument, such promissory note or instrument shall
be promptly pledged, endorsed, assigned and delivered to the Collateral Agent
for the benefit of the Collateral Agent and the Lenders as additional
Collateral; and (k) such Loan Party is not and shall not be entitled to pledge
any Collateral Agent's or any Lender's credit on any purchases or for any
purpose whatsoever.
Section 8.04 Collateral Custodian. Upon the occurrence and during the
continuance of any Default or Event of Default, the Collateral Agent may at
any time and from time to time employ and maintain on the premises of any Loan
Party a custodian selected by the Collateral Agent who shall have full
authority to do all acts necessary to protect the Agent's and the Lenders'
interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to,
cooperate with any such custodian and to do whatever the Collateral Agent may
reasonably request to preserve the Collateral. All reasonable costs and
expenses incurred by the Collateral Agent by reason of the employment of the
custodian shall be the responsibility of the Borrowers and charged to the Loan
Account.
108
Section 8.05 Collateral Reporting.
(a) The Borrowers shall provide the Administrative Agent with the
following documents in a form reasonably satisfactory to the Administrative
Agent:
(i) on a regular basis as required by the Administrative
Agent, schedules of sales made, credits issued and cash received;
(ii) as soon as possible after the end of each fiscal month
(but in any event within fifteen (15) days after the end thereof), on a monthly
basis or more frequently as the Administrative Agent may reasonably request:
(A) perpetual inventory reports for each location of Inventory of the Loan
Parties, but only to the extent such Loan Parties are capable of providing such
reports for such location, and if not capable, such other inventory reports as
are consistent with the reports provided to Hilco in connection with the
initial appraisal of the Inventory, (B) inventory reports by location and
Inventory Category (and including the amounts of Inventory and the value
thereof at any leased locations and at premises of warehouses, processors or
other third parties), (C) agings of Accounts (together with a reconciliation to
the previous month's aging and general ledger), (D) agings of accounts payable
(and including information indicating the amounts owing to owners and lessors
of leased premises, warehouses, processors and other third parties from time to
time in possession of any Collateral), and (E) a report setting forth all
issued and outstanding letters of credit; provided, however, that after
delivering to the Administrative Agent the reports described in this Section
8.05(a)(ii) for the fiscal month of February 2004, the Borrowers shall
continue, subject to the foregoing limitations, to prepare such reports on a
monthly or more frequent basis as the Administrative Agent may reasonably
request, but the Borrowers shall not be required to deliver such reports to the
Administrative Agent unless otherwise requested by the Administrative Agent;
(iii) upon the Administrative Agent's request, (A) copies of
customer statements, purchase orders, sales invoices, credit memos, remittance
advices and reports, and copies of deposit slips and bank statements, (B)
copies of shipping and delivery documents, and (C) copies of purchase orders,
invoices and delivery documents for Inventory and Equipment acquired by any
Borrower or Guarantor; and
(iv) such other reports as to the portion of the Collateral
comprised of Inventory, Accounts and Receivables of Domestic Loan Parties as
the Administrative Agent shall reasonably request from time to time.
(b) If any Loan Party's records or reports of the Collateral are
prepared or maintained by an accounting service, contractor, shipper or other
agent, such Loan Party hereby irrevocably authorizes such service, contractor,
shipper or agent to deliver such records, reports, and related documents to the
Administrative Agent and to follow the Administrative Agent's instructions with
respect to further services at any time that an Event of Default has occurred
and is continuing.
Section 8.06 Accounts Covenants.
(a) With respect to any Account of any Domestic Loan Party that
is included by the Borrowers as an Eligible Account in the calculation of the
Borrowing Base, the Borrowers
109
shall notify the Administrative Agent promptly of: (i) any material delay in
any Domestic Loan Party's performance of any of its material obligations to
any Account Debtor or the assertion of any material claims, offsets, defenses
or counterclaims by any Account Debtor, or any material disputes with Account
Debtors, or any settlement, adjustment or compromise thereof, (ii) all
material adverse information known to any Borrower or Guarantor relating to
the financial condition of any Account Debtor and (iii) any event or
circumstance which, to the best of any Domestic Loan Party's knowledge, would
cause the Administrative Agent to consider any then existing Accounts as no
longer constituting Eligible Accounts. No credit, discount, allowance or
extension or agreement for any of the foregoing shall be granted to any
Account Debtor without the Administrative Agent's consent (which consent shall
not be unreasonably withheld), except in the ordinary course of a Domestic
Loan Party's business in accordance with its practices and policies. Subject
to Section 7.02(o), as long as no Event of Default has occurred and is
continuing, Domestic Loan Parties shall settle, adjust or compromise any
claim, offset, counterclaim or dispute with any Account Debtor. At any time
that an Event of Default has occurred and is continuing, the Administrative
Agent shall, at its option, have the exclusive right to settle, adjust or
compromise any claim, offset, counterclaim or dispute with Account Debtors or
grant any credits, discounts or allowances.
(b) With respect to each Account of any Domestic Loan Party that
is included in the Borrowers as an Eligible Account in the calculation of the
Borrowing Base: (i) the amounts shown on any invoice delivered to the
Administrative Agent or schedule thereof delivered to the Administrative Agent
shall be true and complete in all material respects, (ii) any payments made
thereon shall be promptly delivered to the Administrative Agent pursuant to the
terms of this Agreement, (iii) no credit, discount, allowance or extension or
agreement for any of the foregoing shall be granted to any Account Debtor
except as reported to the Administrative Agent in accordance with this
Agreement and except for credits, discounts, allowances or extensions made or
given in the ordinary course of each such Loan Party's business in accordance
with its practices and policies, (iv) there shall be promptly reported to the
Administrative Agent in accordance with the terms of this Agreement any
setoffs, deductions, contras, defenses, counterclaims or disputes existing or
asserted with respect thereto, (v) none of the transactions giving rise thereto
will violate any applicable foreign, Federal, state or local laws or
regulations, all documentation relating thereto will be legally sufficient
under such laws and regulations and all such documentation will be legally
enforceable in accordance with its terms.
(c) The Administrative Agent shall have the right at any time or
times, in the Administrative Agent's name or in the name of a nominee of the
Administrative Agent, to verify the validity, amount or any other matter
relating to any Receivables, Inventory or Accounts, by mail, telephone,
facsimile transmission or otherwise.
Section 8.07 Inventory Covenants. With respect to the Inventory of any
Domestic Loan Party that is included by the Borrowers as Eligible Inventory in
the calculation of the Borrowing Base: (a) each such Loan Party shall at all
times maintain inventory records reasonably satisfactory to the Administrative
Agent, keeping correct and accurate records itemizing and describing the kind,
type, quality and quantity of such Inventory, such Loan Party's cost therefor
and daily withdrawals therefrom and additions thereto; (b) such Loan Parties
shall conduct a physical count of such the Inventory at any time the
Administrative Agent may reasonably request, and promptly following such
physical inventory shall supply the Administrative Agent
110
with a report in the form and with such specificity as may be reasonably
satisfactory to the Administrative Agent concerning such physical count; (c)
such Loan Parties shall not remove any such Inventory from the locations set
forth or permitted herein, without the prior written consent of the
Administrative Agent, except for sales of such Inventory in the ordinary
course of its business and except to move such Inventory directly from one
location set forth or permitted herein to another such location and except for
such Inventory shipped from the manufacturer thereof to such Loan Party which
is in transit to the locations set forth or permitted herein; (d) upon the
Administrative Agent's request, the Borrowers shall, at their expense, deliver
or cause to be delivered to the Administrative Agent written appraisals as to
such Inventory in form, scope and methodology reasonably acceptable to the
Administrative Agent (and consistent with the methodology used by Hilco) by
Hilco or an appraiser reasonably acceptable to the Administrative Agent,
addressed to Administrative Agent and Lenders and upon which Administrative
Agent and Lenders are expressly permitted to rely; (e) such Loan Parties shall
produce, use, store and maintain such Inventory with all reasonable care and
caution and in accordance with applicable standards of any insurance and in
conformity with applicable laws (including the requirements of the Federal
Fair Labor Standards Act of 1938, as amended and all rules, regulations and
orders related thereto); (f) none of such Inventory constitutes farm products
or the proceeds thereof; (g) each such Loan Party assumes all responsibility
and liability arising from or relating to the production, use, sale or other
disposition of such Inventory; (h) such Loan Parties shall not sell such
Inventory to any customer on approval, or any other basis which entitles the
customer to return or may obligate any such Loan Party to repurchase such
Inventory (unless such Inventory may be returned only if it is not damaged and
is resalable in the normal course of business); (i) such Loan Parties shall
keep such Inventory in good and marketable condition; and (j) such Loan
Parties shall not, without prior written notice to the Administrative Agent or
the specific identification of such Inventory in a report with respect thereto
provided by the Administrative Borrower to the Administrative Agent pursuant
to Section 8.05(a) hereof, acquire or accept any such Inventory on consignment
or approval.
ARTICLE IX.
EVENTS OF DEFAULT
Section 9.01 Events of Default. If any of the following Events of Default
shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of or interest
on any Loan, any Agent Advance or any fee, indemnity or other amount payable
under this Agreement or any other Loan Document when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise);
(b) any representation or warranty made or deemed made by or on
behalf of any Loan Party or by any officer of the foregoing under or in
connection with any Loan Document or under or in connection with any report,
certificate, or other document delivered to any Agent, any Lender or the
L/C Issuer pursuant to any Loan Document shall have been incorrect in any
material respect when made or deemed made;
111
(c) any Loan Party shall fail to perform or comply with any
covenant or agreement contained in (i) clauses (a)(vi) (at a time when
Borrowing Base Certificates are required to be delivered on a weekly basis),
(b), (c), (d), (f), (h), (k), (l), (m), (n), (o), (p), (q) or (r) of Section
7.01, Section 7.02, Section 7.03, Section 8.01, Section 8.02, Section 8.03,
Section 8.04, Section 8.06 and Section 8.07, or any Loan Party shall fail to
perform or comply with any covenant or agreement contained in any Security
Agreement to which it is a party, any Pledge Agreement to which it is a party,
or any Mortgage to which it is a party, (ii) clauses (e), (g), and (i) of
Section 7.01 and such failure, if capable of being remedied, shall remain
unremedied for 15 days, after the earlier of the date a senior officer of any
Loan Party shall become aware of such failure and the date written notice of
such default shall have been given by the Administrative Agent to such Loan
Party, (iii) clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(vii) of Section
7.01 and such failure shall remain unremedied for 5 days, (iv) clauses (a)(v)
and (a)(x) of Section 7.01 and such failure shall remain unremedied for 3
Business Days, (iv) clauses (a)(vi) (at a time when Borrowing Base Certificates
are required to be delivered on a monthly basis), (a)(viii), (a)(ix), (a)(xi),
(a)(xii), (a)(xiii), (a)(xiv) and (a)(xv) of Section 7.01 or Section 8.05 and
such failure shall remain unremedied for 3 Business Days and (v) clause (j) of
Section 7.01, and such failure shall continue for more than 10 days without any
Loan Party commencing activities reasonably likely to cure the environmental
matter which is the subject of such failure, provided that, in the case of any
Loan Party commencing such activities, such Loan Party shall provide
Administrative Agent, as and to the extent Administrative Agent reasonably
requests, with regular updates or other supporting documentation regarding such
activities for so long as such activities are conducted or until such
environmental matter is otherwise cured or resolved;
(d) any Loan Party shall fail to perform or comply with any other
term, covenant or agreement contained in any Loan Document to be performed or
observed by it and, except as set forth in subsections (a), (b) and (c) of this
Section 9.01, such failure, if capable of being remedied, shall remain
unremedied for 15 days after the earlier of the date a senior officer of any
Loan Party becomes aware of such failure and the date written notice of such
default shall have been given by the Administrative Agent to the Administrative
Borrower;
(e) the Parent or any of its Subsidiaries shall fail to pay any
principal of or interest on any of its Indebtedness (excluding Indebtedness
evidenced by this Agreement or the Euro Notes) in excess of $4,000,000, or any
interest or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness, or any other default under any
agreement or instrument relating to any such Indebtedness, or any other event,
shall occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; provided, that, if any such event shall occur as the direct and
sole result of an Excluded Note Event, such event shall not constitute an Event
of Default under this clause (e) until the acceleration of the maturity of such
Indebtedness or the commencement of the exercise of enforcement rights and
remedies of such Indebtedness; or any such Indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be made, in
each case, prior to the stated maturity thereof;
112
(f) any Loan Party or any Subsidiary of Milacron Capital (i)
shall institute any proceeding or voluntary case seeking to adjudicate it
bankrupt or insolvent, or seeking dissolution, liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of
it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for any such Person or for any substantial part of its property, (ii)
shall be generally not paying its debts as such debts become due or shall admit
in writing its inability to pay its debts generally, (iii) shall make a general
assignment for the benefit of creditors, or (iv) shall take any action to
authorize or effect any of the actions set forth above in this subsection (f);
(g) any proceeding shall be instituted against any Loan Party or
any Subsidiary of Milacron Capital seeking to adjudicate it bankrupt or
insolvent, or seeking dissolution, liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian or
other similar official for any such Person or for any substantial part of its
property, and either such proceeding shall remain undismissed or unstayed for a
period of 30 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against any such Person or
the appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property) shall occur;
(h) any provision of any Loan Document shall at any time for any
reason (other than pursuant to the express terms thereof) cease to be valid and
binding on or enforceable against any Loan Party intended to be a party thereto
other than the Agents or the Lenders, or the validity or enforceability thereof
shall be contested by any party thereto, or a proceeding shall be commenced by
any Loan Party or any Governmental Authority having jurisdiction over any of
them, seeking to establish the invalidity or unenforceability thereof, or any
Loan Party shall deny in writing that it has any liability or obligation
purported to be created under any Loan Document;
(i) any Security Agreement, any Pledge Agreement, any Mortgage,
any Cash Management Agreement or any other security document, after delivery
thereof pursuant hereto, shall for any reason fail or cease to create a valid
and perfected and, except to the extent permitted by the terms hereof or
thereof, first priority Lien in favor of the Collateral Agent for the benefit
of the Agents and the Lenders on any Collateral purported to be covered
thereby;
(j) except solely with respect to an Excluded Note Event, one or
more judgments, orders or awards for the payment of money exceeding $4,000,000
in the aggregate shall be rendered against the Parent or any of its
Subsidiaries and remain unsatisfied and either (i) enforcement proceedings
shall have been commenced by any creditor upon any such judgment, order or
award, or (ii) there shall be a period of 10 consecutive days after entry
thereof during which a stay of enforcement of any such judgment, order or
award, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment, order or award shall not give rise
to an Event of Default under this subsection (j) if and for so long as (A) the
amount of such judgment, award or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering full payment
thereof and
113
(B) such insurer has been notified, and has not disputed the claim made for
payment, of the amount of such judgment, order or award;
(k) for more than fifteen (15) days, the Parent or any of its
Subsidiaries is enjoined, restrained or in any way prevented by the order of
any court or any Governmental Authority from conducting all or any part of its
business that is material to the Loan Parties taken as a whole;
(l) any material damage to, or loss, theft or destruction of, any
Collateral, whether or not insured, or any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty which
causes, for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any facility of any
Loan Party, if any such event or circumstance could reasonably be expected to
have a Material Adverse Effect;
(m) any cessation of a substantial part of the business of the
Parent or any of its Subsidiaries for a period which materially and adversely
affects the ability of the Loan Parties, taken as a whole, to continue its
business on a profitable basis;
(n) the loss, suspension or revocation of, or failure to renew,
any license or permit now held or hereafter acquired by the Parent or any of
its Subsidiaries, if such loss, suspension, revocation or failure to renew
could reasonably be expected to have a Material Adverse Effect;
(o) the indictment, or the threatened indictment of the Parent or
any of its Subsidiaries under any criminal statute, or commencement or
threatened commencement of criminal or civil proceedings against any Loan
Party, pursuant to which statute or proceedings the penalties or remedies
sought or available include forfeiture to any Governmental Authority of any
material portion of the property of the Loan Parties taken as a whole;
(p) any Loan Party or any of its ERISA Affiliates shall have made
a complete or partial withdrawal from a Multiemployer Plan, and, as a result of
such complete or partial withdrawal, any Loan Party or any of its ERISA
Affiliates incurs a withdrawal liability in an annual amount exceeding
$500,000; or a Multiemployer Plan enters reorganization status under
Section 4241 of ERISA, and, as a result thereof any Loan Party's or any of its
ERISA Affiliates' annual contribution requirements with respect to such
Multiemployer Plan increases in an annual amount exceeding $500,000;
(q) any Termination Event with respect to any Employee Plan shall
have occurred which could reasonably be expected to have a Material Adverse
Effect;
(r) the Parent or any of its Subsidiaries shall be liable for any
Environmental Liabilities and Costs the payment of which could reasonably be
expected to have a Material Adverse Effect;
(s) a Change of Control shall have occurred;
114
(t) an event or development occurs which could reasonably be
expected to have a Material Adverse Effect;
(u) the following events shall occur: (i) an "Event of Default"
(or any similar defined term or concept) under, and as defined in, any of the
Euro Notes or the Euro Indenture, shall exist (including as a result of the
failure to repay obligations thereunder, whether at maturity or upon
acceleration), whether or not resulting in an acceleration thereof, (ii) the
Euro Notes shall have become due and payable at maturity or upon acceleration
and (iii) the Euro Note Holders holding in excess of 25% of the Euro Notes
and/or any agent under the Euro Indenture, in each case in accordance with the
Euro Indenture, causes the commencement of the exercise of enforcement rights
and remedies under the applicable Indenture governing the Euro Notes by (x)
instituting or otherwise commencing any legal proceeding seeking a judgment or
decree for the payment of monies due, including, without limitation, commencing
any Insolvency Proceeding, (y) attaching, seizing, levying upon or subjecting
to a writ or distress warrant all or a substantial portion of the assets of the
Loan Parties, or allowing such assets to come within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors or (z)
instituting liquidation or similar proceedings for all or a substantial portion
of the assets or property of the Loan Parties; or
(v) Stockholder Approval is not obtained on or prior to July 29,
2004;
then, and in any such event, the Collateral Agent may, and shall at the request
of the Required Lenders, by notice to the Administrative Borrower, (i)
terminate or reduce all Commitments, whereupon all Commitments shall
immediately be so terminated or reduced, (ii) declare all or any portion of the
Loans then outstanding to be due and payable, whereupon all or such portion of
the aggregate principal of all Loans, all accrued and unpaid interest thereon,
all fees and all other amounts payable under this Agreement and the other Loan
Documents shall become due and payable immediately, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by each Loan Party and (iii) exercise any and all of its other
rights and remedies under applicable law, hereunder and under the other Loan
Documents; provided, however, that upon the occurrence of any Event of Default
described in subsection (f) or (g) of this Section 9.01 with respect to any
Loan Party, without any notice to any Loan Party or any other Person or any act
by any Agent or any Lender, all Commitments shall automatically terminate and
all Loans then outstanding, together with all accrued and unpaid interest
thereon, all fees and all other amounts due under this Agreement and the other
Loan Documents shall become due and payable automatically and immediately,
without presentment, demand, protest or notice of any kind, all of which are
expressly waived by each Loan Party. Subject to Section 4.04(b), the
Administrative Agent may, after the occurrence and during the continuation of
any Event of Default, require the Borrowers to deposit with the Administrative
Agent with respect to each Letter of Credit Accommodation then outstanding cash
in an amount equal to 105% of the greatest amount for which such Letter of
Credit Accommodation may be drawn. Such deposits shall be held by the
Administrative Agent in the Letter of Credit Collateral Account as security
for, and to provide for the payment of, the Letter of Credit Obligations.
115
ARTICLE X.
AGENT
Section 10.01 Appointment. Each Lender (and each subsequent maker of any
Loan by its making thereof) hereby irrevocably appoints CSFB (and its
successors and assigns) as its agent under the Loan Documents and authorizes
CSFB (and its successors and assigns) to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent or the
Collateral Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. Without limiting the
generality of the foregoing, the Administrative Agent or the Collateral Agent,
as the case may be, is hereby expressly authorized by the Lenders to execute
any and all documents (including releases, the Cash Management Agreements and
the Subordination and Intercreditor Agreement) with respect to the Collateral
and the rights of the Lenders with respect thereto. Each of the Lenders and
the L/C Issuer hereby agrees to be bound by the priority of the security
interests and allocation of the benefits of the Collateral and proceeds
thereof set forth in this Agreement and the Subordination and Intercreditor
Agreement.
Section 10.02 Nature of Duties. Neither Agent shall have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent or the Collateral Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
12.02), and (c) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose, nor shall it be liable for the failure to
disclose, any information relating to the Company or any of the Subsidiaries
that is communicated to or obtained by the bank serving as any Agent or any of
its Affiliates in any capacity. No Agent shall be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 12.02), in each case, in the absence
of its own gross negligence or willful misconduct. No Agent shall be deemed to
have knowledge of any Default or Event of Default unless and until written
notice thereof is given to such Agent by any Loan Party or a Lender, and such
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article V or elsewhere in any Loan Document, other than to
confirm receipt of items expressly required to be delivered to such Agent.
Section 10.03 Rights, Exculpation, Etc. (a) Neither Agent nor its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by them under or in connection with this Agreement or
the other Loan Documents, except for their own gross
116
negligence or willful misconduct as determined by a final judgment of a court
of competent jurisdiction. Without limiting the generality of the foregoing,
each Agent (i) may treat the payee of any Loan as the owner thereof until the
Administrative Agent receives written notice of the assignment or transfer
thereof, pursuant to Section 12.07 hereof, signed by such payee and in form
satisfactory to the Administrative Agent; (ii) may consult with legal counsel
(including, without limitation, counsel to such Agent or counsel to the Loan
Parties), independent public accountants, and other experts selected by any of
them and shall not be liable for any action taken or omitted to be taken in
good faith by any of them in accordance with the advice of such counsel or
experts; (iii) make no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, certificates, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Person, the existence
or possible existence of any Default or Event of Default, or to inspect the
Collateral or other property (including, without limitation, the books and
records) of any Person; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; and (vi) shall not be deemed to
have made any representation or warranty regarding the existence, value or
collectibility of the Collateral, the existence, priority or perfection of the
Administrative Agent's Lien thereon, or any certificate prepared by any Loan
Party in connection therewith, nor shall any Agent be responsible or liable to
the Lenders for any failure to monitor or maintain any portion of the
Collateral. No Agent shall be liable for any apportionment or distribution of
payments made in good faith pursuant to Section 2.05, and if any such
apportionment or distribution is subsequently determined to have been made in
error the sole recourse of any Lender to whom payment was due but not made,
shall be to recover from other Lenders any payment in excess of the amount
which they are determined to be entitled. Each Agent may at any time request
instructions from the Lenders with respect to any actions or approvals which
by the terms of this Agreement or of any of the other Loan Documents such
Agent are permitted or required to take or to grant, and if such instructions
are promptly requested, such Agent shall be absolutely entitled to refrain
from taking any action or to withhold any approval under any of the Loan
Documents until they shall have received such instructions from the Required
Lenders. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against any Agent as a result of such Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of the Required Lenders. Each Lender
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement or any other Loan Document, any related agreement or
any document furnished hereunder or thereunder.
(b) To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any Lender an
amount equivalent to any applicable withholding tax. If the Internal Revenue
Service or any other Governmental Authority asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
117
the account of any Lender because the appropriate form was not delivered or was
not properly executed or because such Lender failed to notify the
Administrative Agent of a change in circumstance which rendered the exemption
from, or reduction of, withholding tax ineffective or for any other reason,
such Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including any penalties or interest and together with all expenses (including
legal expenses, allocated internal costs and out-of-pocket expenses) incurred.
Section 10.04 Reliance. Each Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
person. Each Agent may also rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper person, and shall
not incur any liability for relying thereon. Each Agent may consult with legal
counsel, independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts. Each Agent may perform any
and all its duties and exercise its rights and powers by or through any one or
more sub-agents appointed by it. In addition, each Agent and any such
sub-agent may perform any and all its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of the preceding subsections of this ARTICLE X shall apply to any
such sub-agent and to the Related Parties of such Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent or Collateral Agent, as the case may be.
Section 10.05 Indemnification. To the extent that any Agent or the L/C
Issuer is not reimbursed and indemnified by any Loan Party, the Lenders will
reimburse and indemnify such Agent and the L/C Issuer from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against such
Agent or the L/C Issuer in any way relating to or arising out of this
Agreement or any of the other Loan Documents or any action taken or omitted by
such Agent or the L/C Issuer under this Agreement or any of the other Loan
Documents, in proportion to each Lender's Pro Rata Share, including, without
limitation, advances and disbursements made pursuant to Section 10.08;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements for which there has been a
final judicial determination that such liability resulted from such Agent's or
the L/C Issuer's gross negligence or willful misconduct. The obligations of
the Lenders under this Section 10.05 shall survive the payment in full of the
Loans and the termination of this Agreement.
Section 10.06 Agent Individually. With respect to its Pro Rata Share of
each Commitment and the Total Commitment hereunder and the Loans made by it,
each Agent shall have and may exercise the same rights and powers hereunder
and is subject to the same obligations and liabilities as and to the extent
set forth herein for any other Lender or maker of a Loan. The terms "Lenders",
"Required A Lenders", "Required B Lenders" or "Required Lenders" or any
similar terms shall, unless the context clearly otherwise indicates, include
such Agent in its individual capacity as a Lender or one of the Required A
Lenders, the Required B
118
Lenders, or the Required Lenders. Each Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with any Borrower as if it were not acting as an Agent
pursuant hereto without any duty to account to the other Lenders.
Section 10.07 Successor Agent. (a) Each Agent may resign from the
performance of all its functions and duties hereunder and under the other Loan
Documents at any time by giving at least thirty (30) Business Days' prior
written notice to the Administrative Borrower and each Lender. Such
resignation shall take effect upon the acceptance by a successor
Administrative Agent or Collateral Agent, as the case may be, of appointment
pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders
shall appoint a successor Agent with the consent of the Administrative Borrower
(which consent shall not be unreasonably withheld or delayed). Upon the
acceptance of any appointment as any Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. After the resignation of the Administrative
Agent or Collateral Agent, as the case may be, hereunder as an Agent, the
provisions of this ARTICLE X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was an Agent under this Agreement and the
other Loan Documents.
(c) If a successor Agent shall not have been so appointed within
said thirty (30) Business Day period, the retiring Agent shall then appoint a
successor Agent (with the consent of the Administrative Borrower, which consent
shall not be unreasonably withheld or delayed) who shall serve as an Agent
until such time, if any, as the Required Lenders appoint a successor Agent as
provided above.
Section 10.08 Collateral Matters.
(a) Subject to the terms of a separate written agreement among
the Administrative Agent and the Lenders, the Administrative Agent may from
time to time make such disbursements and advances ("Agent Advances") which the
Administrative Agent, in its sole discretion, deems necessary or desirable to
preserve, protect, prepare for sale or lease or dispose of the Collateral or
any portion thereof, to enhance the likelihood or maximize the amount of
repayment by the Borrowers of the Loans, Letter of Credit Obligations and other
Obligations or to pay any other amount chargeable to the Borrowers pursuant to
the terms of this Agreement, including, without limitation, costs, fees and
expenses as described in Section 12.04. The Agent Advances shall bear interest
at the maximum rate set forth in this Agreement and shall be repayable on
demand and be secured by the Collateral. The Agent Advances shall constitute
Obligations hereunder which may be charged to the Loan Account in accordance
with Section 4.02. The Administrative Agent making an Agent Advance shall
notify each Lender and the Administrative Borrower in writing of each such
Agent Advance, which notice shall include a description of the purpose of such
Agent Advance. Without limitation to its obligations pursuant to Section
10.05, each Lender agrees that it shall make available to the Administrative
Agent making the Agent Advance, upon such Administrative Agent's demand, in
Dollars in
119
immediately available funds, the amount equal to such Lender's Pro Rata Share
of each such Agent Advance. If such funds are not made available to the
Administrative Agent making an Agent Advance by such Lender, the
Administrative Agent shall be entitled to recover such funds on demand from
such Lender, together with interest thereon for each day from the date such
payment was due until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for three Business Days and thereafter at the
Reference Rate.
(b) The Lenders hereby irrevocably authorize the Collateral
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Collateral Agent upon any Collateral upon termination of the Total
Commitment and payment and satisfaction of all Loans, Letter of Credit
Obligations, and all other Obligations which have matured and which the
Collateral Agent has been notified in writing are then due and payable; or
constituting property being sold or disposed of in the ordinary course of any
Loan Party's business and in compliance with the terms of this Agreement and
the other Loan Documents; or constituting property in which the Loan Parties
owned no interest at the time the Lien was granted or at any time thereafter;
or if approved, authorized or ratified in writing by the Lenders. Upon request
by the Collateral Agent at any time, the Lenders will confirm in writing the
Collateral Agent's authority to release particular types or items of Collateral
pursuant to this Section 10.08(b).
(c) Without in any manner limiting the Collateral Agent's
authority to act without any specific or further authorization or consent by
the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm
in writing, upon request by the Collateral Agent, the authority to release
Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon
receipt by the Collateral Agent of confirmation from the Lenders of its
authority to release any particular item or types of Collateral, and upon prior
written request by any Loan Party, the Collateral Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Collateral Agent
for the benefit of the Agents and the Lenders upon such Collateral; provided,
however, that (i) the Collateral Agent shall not be required to execute any
such document on terms which, in the Collateral Agent's opinion, would expose
the Collateral Agent to liability or create any obligations or entail any
consequence other than the release of such Liens without recourse or warranty,
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Lien upon (or obligations of any Loan Party in respect of)
all interests in the Collateral retained by any Loan Party.
(d) The Collateral Agent shall have no obligation whatsoever to
any Lender to assure that the Collateral exists or is owned by the Loan Parties
or is cared for, protected or insured or has been encumbered or that the Lien
granted to the Collateral Agent pursuant to this Agreement or any other Loan
Document has been properly or sufficiently or lawfully created, perfected,
protected or enforced or is entitled to any particular priority, or to exercise
at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 10.08 or in any
other Loan Document, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given
the Collateral Agent's own interest in the Collateral as one of the Lenders and
that the Collateral Agent shall have no duty or liability whatsoever to any
other Lender, except as otherwise provided herein.
120
Section 10.09 Agency for Perfection. Each Agent and each Lender hereby
appoints each other Lender as agent and bailee for the purpose of perfecting
the security interests in and liens upon the Collateral in assets which, in
accordance with Article 9 of the Uniform Commercial Code, can be perfected
only by possession or control (or where the security interest of a secured
party with possession or control has priority over the security interest of
another secured party) and each Agent and each Lender hereby acknowledges that
it holds possession of or otherwise controls any such Collateral for the
benefit of the Agents and the Lenders as secured party. Should the
Administrative Agent or any Lender obtain possession or control of any such
Collateral, the Administrative Agent or such Lender shall notify the
Collateral Agent thereof, and, promptly upon the Collateral Agent's request
therefor shall deliver such Collateral to the Collateral Agent or in
accordance with the Collateral Agent's instructions. In addition, the
Collateral Agent shall also have the power and authority hereunder to appoint
such other sub agents as may be necessary or required under applicable state
law or otherwise to perform its duties and enforce its rights with respect to
the collateral and under the Loan Documents. Each Loan Party by its execution
and delivery of this Agreement hereby consents to the foregoing.
ARTICLE XI.
GUARANTY
Section 11.01 Guaranty. Each Guarantor hereby jointly and severally and
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations
of the Borrowers now or hereafter existing under any Loan Document, whether
for principal, interest (including, without limitation, all interest that
accrues after the commencement of any Insolvency Proceeding of any Borrower,
whether or not a claim for post-filing interest is allowed in such
proceeding), Letter of Credit Obligations, fees, commissions, expense
reimbursements, indemnifications or otherwise (such obligations, to the extent
not paid by or on behalf of the Borrowers, being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable out-of-pocket expenses
(including reasonable counsel fees and expenses) incurred by the Agents, the
Lenders and the L/C Issuer in enforcing any rights under the guaranty set
forth in this ARTICLE XI. Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by the Borrowers to the Agents,
the Lenders and the L/C Issuer under any Loan Document but for the fact that
they are unenforceable or not allowable due to the existence of an Insolvency
Proceeding involving any Borrower.
Section 11.02 Guaranty Absolute. Each Guarantor, jointly and severally,
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Agents, the Lenders or the L/C Issuer with respect
thereto. Each Guarantor agrees that this ARTICLE XI constitutes a guaranty of
payment when due and not of collection and waives any right to require that
any resort be made by any Agent or any Lender to any Collateral. The
obligations of each Guarantor under this ARTICLE XI are independent of the
Guaranteed Obligations, and a separate action or actions
121
may be brought and prosecuted against each Guarantor to enforce such
obligations, irrespective of whether any action is brought against any Loan
Party or whether any Loan Party is joined in any such action or actions. The
liability of each Guarantor under this ARTICLE XI shall be irrevocable,
absolute and unconditional irrespective of, and each Guarantor hereby
irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or
otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) the existence of any claim, set-off, defense or other right
that the Guarantors may have at any time against any Person, including, without
limitation, any Agent, any Lender or the L/C Issuer;
(e) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of any Loan
Party; or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation
by the Agents, the Lenders or the L/C Issuer that might otherwise constitute a
defense available to, or a discharge of, any Loan Party or any other guarantor
or surety.
This ARTICLE XI shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Agents the Lenders, the L/C
Issuer or any other Person upon the insolvency, bankruptcy or reorganization of
any Loan Party or otherwise, all as though such payment had not been made.
Section 11.03 Waiver. Each Guarantor hereby waives (i) promptness and
diligence, (ii) notice of acceptance and any other notice with respect to any
of the Guaranteed Obligations and this ARTICLE XI and any requirement that the
Agents, the Lenders or the L/C Issuer exhaust any right or take any action
against any Loan Party or any other Person or any Collateral (iii) any right
to compel or direct any Agent, any Lender or the L/C Issuer to seek payment or
recovery of any amounts owed under this ARTICLE XI from any one particular
fund or source or to exhaust any right or take any action against any other
Loan Party or any other Person or any Collateral, (iv) any requirement that
any Agent, any Lender or the L/C Issuer protect, secure, perfect or insure any
security interest or Lien on any property subject thereto or exhaust any right
to take any action against any Loan Party or any other Person or any
Collateral, and (v) any other
122
defense available to the Guarantors. The Guarantors agree that the Agents, the
Lenders and the L/C Issuer shall have no obligation to marshal any assets in
favor of the Guarantors or against, or in payment of, any or all of the
Obligations. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated herein and that
the waiver set forth in this Section 11.03 is knowingly made in contemplation
of such benefits. Each Guarantor hereby waives any right to revoke this
ARTICLE XI, and acknowledges that this ARTICLE XI is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
Section 11.04 Continuing Guaranty; Assignments. This ARTICLE XI is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the date on which all of the Guaranteed Obligations and all other
amounts payable under this ARTICLE XI shall have been Paid in Full in cash,
(b) be binding upon each Guarantor, its successors and assigns and (c) inure
to the benefit of and be enforceable by the Agents, the Lenders and the L/C
Issuer and their successors, pledgees, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may pledge,
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, its Loans and the Letter of Credit Obligations owing to it) to
any other Person, and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender herein or otherwise, in
each case as provided in Section 12.07.
Section 11.05 Subrogation. No Guarantor will exercise any rights that it
may now or hereafter acquire against any Loan Party or any other guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under this ARTICLE XI, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Agents, the Lenders and the L/C Issuer against any Loan Party or any other
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Loan Party or any other
guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security solely on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this ARTICLE XI shall have been Paid in Full in
cash. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the later of the date on
which all of the Guaranteed Obligations and all other amounts payable under
this ARTICLE XI shall have been Paid in Full in cash and the Final Maturity
Date, such amount shall be held in trust for the benefit of the Agents, the
Lenders and the L/C Issuer and shall forthwith be paid to the Agents, the
Lenders and the L/C Issuer to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this ARTICLE XI, whether
matured or unmatured, in accordance with the terms of this Agreement, or to be
held as Collateral for any Guaranteed Obligations or other amounts payable
under this ARTICLE XI thereafter arising. If (i) any Guarantor shall make
payment to the Agents, the Lenders and the L/C Issuer of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this ARTICLE XI shall be Paid in Full in cash and
(iii) the Final Maturity Date shall have occurred, the Agents, the Lenders and
the L/C Issuer will, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
123
representation or warranty, necessary to evidence the transfer by subrogation
to such Guarantor of an interest in the Guaranteed Obligations resulting from
such payment by such Guarantor.
Section 11.06 Judgment. The specification under the Loan Documents of
Dollars and payment in New York City is of the essence. Each Loan Party's
obligations hereunder and under the other Loan Documents to make payments in
Dollars (the "Obligation Currency") shall not be discharged or satisfied by
any tender or recovery pursuant to any judgment expressed in or converted into
any currency other than the Obligation Currency, except to the extent that
such tender or recovery results in the effective receipt by the Agents, the
Lenders or the L/C Issuer of the full amount of the Obligation Currency
expressed to be payable to the Agents, the Lenders or the L/C Issuer under
this Agreement or the other Loan Documents. If, for the purpose of obtaining
or enforcing judgment in any court, it is necessary to convert into or from
any currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the rate of exchange used shall be that at which the
Agents, the Lenders or the L/C Issuer could, in accordance with normal banking
procedures, purchase Dollars with the Other Currency on the Business Day
preceding that on which final judgment is given. The obligation of a Loan
Party in respect of any such sum due from it to the Agents, the Lenders or the
L/C Issuer hereunder shall, notwithstanding any judgment in such Other
Currency, be discharged only to the extent that, on the Business Day
immediately following the date on which the Agents, the Lenders or the L/C
Issuer receives any sum adjudged to be so due in the Other Currency, the
Agents, the Lenders or the L/C Issuer may, in accordance with normal banking
procedures, purchase Dollars with the Other Currency. If the Dollars so
purchased are less than the sum originally due to the Agents, the Lenders or
the L/C Issuer in Dollars, such Loan Party agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify the Agents, the Lenders or
the L/C Issuer against such loss, and if the Dollars so purchased exceed the
sum originally due to the Agents, the Lenders or the L/C Issuer in Dollars,
the Agents, the Lenders or the L/C Issuer agrees to remit to such Loan Party
such excess.
Section 11.07 Subordination and Intercreditor Agreement. Each of the Loan
Parties hereby acknowledges that it is familiar with the terms of such
Subordination and Intercreditor Agreement, and agrees to make payments in
accordance with, and otherwise be bound by, the terms thereof as though such
Guarantor were a direct signatory thereto.
ARTICLE XII.
MISCELLANEOUS
Section 12.01 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing and shall be mailed, telecopied or
delivered:
124
if to any Loan Party, at the following address:
Milacron Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 212-474-3700
if to CSFB, to it at the following address:
Credit Suisse First Boston
One Madison Avenue, 2nd floor
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Administration
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇- ▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties complying as to delivery with
the terms of this Section 12.01. All such notices and other communications
shall be effective, (i) if mailed, when received or three days after deposited
in the mails, whichever occurs first, (ii) if telecopied, when transmitted and
confirmation is received, or (iii) if delivered, upon delivery, except that
notices to the Agents or the L/C Issuer pursuant to ARTICLE II and ARTICLE III
shall not be effective until received by the Agents or the L/C Issuer, as the
case may be.
Section 12.02 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, and no consent to any departure by any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders or by the Agents with the consent of the Required
Lenders, and then such waiver or consent shall be
125
effective only in the specific instance and for the specific purpose for which
given, provided, however, that no amendment, waiver or consent shall (i)
increase the Revolving A Credit Commitment or the B-Commitment of any Lender,
reduce the principal of, or interest on, the Loans payable to any Lender,
reduce the amount of any fee payable for the account of any Lender, or
postpone or extend the Final Maturity Date or any date fixed for any payment
of principal of, or interest or fees on, the Loans or Letter of Credit
Obligations payable to any Lender, in each case without the written consent of
each Lender, (ii) increase the Total Revolving A Credit Commitment or Total
B-Commitment without the written consent of each Lender, (iii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Loans that is required for the Lenders or any of them to take any action
hereunder without the written consent of each Lender, (iv) amend the
definition of "Required A Lenders", "Required B Lenders", Required Lenders" or
"Pro Rata Share" without the written consent of each Lender, (v) release all
or a substantial portion of the Collateral (except as otherwise provided in
this Agreement and the other Loan Documents), subordinate any Lien granted in
favor of the Collateral Agent for the benefit of the Agents and the Lenders,
or release any Borrower or any Guarantor without the written consent of each
Lender, (vi) amend, modify or waive Section 4.04 or this Section 12.02 of this
Agreement without the written consent of each Lender, or (vii) amend the
definition of "Total Commitment" without the written consent of each Lender;
and provided, further, however that no amendment, waiver or consent shall
amend the definition of "Book Value", "Borrowing Base", "Eligible Accounts",
"Eligible Inventory", "Net Amount of Eligible Accounts", "Net Liquidation
Value", "Inventory Category", "Reserves" and "Net Liquidation Percentage"
unless the same shall be in writing and signed by the Administrative Agent,
subject to the approval of each Revolving A Lender in the case of amendment,
waiver or consent which has the effect of making more credit available.
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent affect the rights or duties
of the Administrative Agent (but not in its capacity as a Lender) under this
Agreement or the other Loan Documents and no amendment, waiver or consent
shall, unless in writing and signed by the Collateral Agent affect the rights
or duties of the Collateral Agent (but not in its capacity as a Lender) under
this Agreement or the other Loan Documents.
Section 12.03 No Waiver; Remedies, Etc. No failure on the part of any
Agent or any Lender to exercise, and no delay in exercising, any right hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right under any Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The
rights and remedies of the Agents and the Lenders provided herein and in the
other Loan Documents are cumulative and are in addition to, and not exclusive
of, any rights or remedies provided by law. The rights of the Agents and the
Lenders under any Loan Document against any party thereto are not conditional
or contingent on any attempt by the Agents and the Lenders to exercise any of
their rights under any other Loan Document against such party or against any
other Person.
Section 12.04 Expenses; Taxes; Attorneys' Fees. The Borrowers will pay on
demand, all reasonable out-of-pocket costs and expenses incurred by or on
behalf of the Agents (and, in the case of clauses (b) through (j) below, each
Lender), regardless of whether the transactions contemplated hereby are
consummated, including, without limitation, reasonable fees, costs, client
charges and expenses of counsel for any Agent (and, in the case of clauses (b)
through (j)
126
below, each Lender), accounting, due diligence, periodic field audits,
physical counts, valuations, investigations, searches and filings, monitoring
of assets, appraisals of Collateral, title searches and reviewing
environmental assessments, miscellaneous disbursements, examination, travel,
lodging and meals, arising from or relating to: (a) the negotiation,
preparation, execution, delivery, performance and administration of this
Agreement and the other Loan Documents (including, without limitation, the
preparation of any additional Loan Documents pursuant to Section 7.01(b) or
the review of any of the agreements, instruments and documents referred to in
Section 7.01(f)), (b) any requested amendments, waivers or consents to this
Agreement or the other Loan Documents whether or not such documents become
effective or are given, (c) the preservation and protection of any of the
Agents' or the Lenders' rights under this Agreement or the other Loan
Documents, (d) the defense of any claim or action asserted or brought against
any Agent or any Lender by any Person that arises from or relates to this
Agreement, any other Loan Document, the Agents' or the Lenders' claims against
any Loan Party, or any and all matters in connection therewith to the extent
not otherwise provided in Section 12.15, (e) the commencement or defense of,
or intervention or participation in, any court or judicial proceeding arising
from or related to this Agreement or any other Loan Document, including,
without limitation, in connection with any Insolvency Proceeding related to
any Loan Party or the Collateral, including in any adversary proceeding or
contested matter commenced or continued by, on behalf of, or against any Loan
Party or its estate, and any appeal or review thereof, (f) the filing of any
petition, complaint, answer, motion or other pleading by any Agent or any
Lender, or the taking of any action in respect of the Collateral or other
security, in connection with this Agreement or any other Loan Document, (g)
the protection, collection, lease, sale, taking possession of or liquidation
of, any Collateral or other security in connection with this Agreement or any
other Loan Document, (h) any attempt to enforce any Lien or security interest
in any Collateral or other security in connection with this Agreement or any
other Loan Document, (i) any attempt to collect from any Loan Party, or (j)
the receipt by any Agent or any Lender of any advice from professionals with
respect to any of the foregoing. Without limitation of the foregoing or any
other provision of any Loan Document: (x) the Borrowers agree to pay all
stamp, document, transfer, recording or filing taxes or fees and similar
impositions now or hereafter determined by any Agent or any Lender to be
payable in connection with this Agreement or any other Loan Document, and the
Borrowers agree to save each Agent and each Lender harmless from and against
any and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions, (y) the Borrowers agree to pay all broker fees that may become
due in connection with the transactions contemplated by this Agreement and the
other Loan Documents, of which, on the Effective Date, there are none, and (z)
if the Borrowers fail to perform any covenant or agreement contained herein or
in any other Loan Document, any Agent may itself perform or cause performance
of such covenant or agreement in accordance with the terms of this Agreement
or any other Loan Document, and the expenses of the Agents incurred in
connection therewith shall be reimbursed on demand by the Borrowers.
Section 12.05 Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, any Agent or any Lender may, and is
hereby authorized to, at any time and from time to time, without notice to any
Loan Party (any such notice being expressly waived by the Loan Parties) and to
the fullest extent permitted by law, set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other Indebtedness at any time owing by such Agent or such Lender to or
for the credit or the account of any Loan
127
Party against any and all obligations of the Loan Parties either now or
hereafter existing under any Loan Document, irrespective of whether or not
such Agent or such Lender shall have made any demand hereunder or thereunder
and although such obligations may be contingent or unmatured. Each Agent and
each Lender agrees to notify such Loan Party promptly after any such set-off
and application made by such Agent or such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Agents and the Lenders under this Section 12.05
are in addition to the other rights and remedies (including, without
limitation, other rights of set-off) which the Agents and the Lenders may have
under this Agreement or any other Loan Documents in law or otherwise.
Section 12.06 Severability. Any provision of this Agreement which is
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 portions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 12.07 Assignments and Participations.
(a) Whenever in this Agreement or any of the Loan Documents a
party hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Loan Parties, the Administrative Agent, the
Collateral Agent, L/C Issuer or the Lenders that are contained in this
Agreement and any of the Loan Documents shall bind and inure to the benefit of
their respective successors and assigns; provided, however, that none of the
Loan Parties may assign or transfer any of its rights hereunder without the
prior written consent of each of the Agents and Lenders, and any such
assignment without such unanimous prior written consent shall be null and void.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment(s) and the Loans at the time
owing to it); provided, however, that: (i) in the case of any assignment of a
Revolving A Credit Commitment, each of the Administrative Agent and the L/C
Issuer must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld or delayed), (ii) except in the case of
Related Lender Assignment, the amount of the Revolving A Credit Commitment or
B-Loan of the assigning Lender subject to any such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 (or,
if less, the entire remaining amount of such Lender's Commitment), and
(iii) the Borrowers and the Administrative Agent shall be entitled to deal
solely with the assigning Lender unless and until the parties to such
assignment either (A) electronically execute and deliver an Assignment and
Acceptance to the Administrative Agent via an electronic settlement system then
acceptable to the Administrative Agent (which shall initially be the settlement
system of ClearPar, LLC), or (B) manually execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with (in the
Administrative Agent's discretion) a processing and recordation fee of $5,000
and, unless the assignee is an existing Lender, an administrative
questionnaire. Subject to the last sentence of this Section 12.07(b) with
respect to Related Lender Assignments of B-Loans, upon acceptance and recording
by the Administrative Agent of an Assignment and Acceptance pursuant to Section
12.07(e), from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
128
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.08, 2.10, 4.05, 12.14 and 12.15, as
well as to any fees accrued for its account and not yet paid).
Notwithstanding the foregoing, a Related Lender Assignment of B-Loans will be
effective, valid, legal, and binding without regard to whether an Assignment
and Acceptance has been delivered to and recorded by the Administrative Agent
(and the acceptance and recordation required pursuant to Section 12.07(e) shall
not be required); provided that the Administrative Agent and the Borrowers
shall be entitled to deal solely with the assigning Lender unless and until the
date that an Assignment and Acceptance has been executed and delivered to the
Administrative Agent with respect to the applicable assignment and recorded by
the Administrative Agent in its Register.
(c) By executing and delivering to the Administrative Agent (or,
solely with respect to a Related Lender Assignment of B-Loans, the assigning
Lender) an Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim and that its B-Commitment and Revolving
Credit A Commitment, and the outstanding balances of its B-Loans and Revolving
A Loans, in each case without giving effect to assignments thereof which have
not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrowers or any Subsidiary or the performance or observance by the
Borrowers or any Subsidiary of any of their obligations under this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 6.01(g) or
delivered pursuant to Section 7.01(a) and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (v) such assignee will independently
and without reliance upon the Administrative Agent, the Collateral Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
129
(d) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment(s)
of, and principal amount of the Loans and Letter of Credit Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the
"Register"). In the case of any assignment of B-Loans made in accordance with
the last sentence of subsection (b) above and that is not reflected in the
Register, the assigning Lender shall maintain a comparable register (the
"Lender Register") reflecting such assignment. The entries in the Register and
each Lender Register shall be conclusive in the absence of clearly demonstrable
error and the Borrowers, the Administrative Agent, the L/C Issuer, the
Collateral Agent and the Lenders may treat each Person whose name is recorded
in the Register and such Lender Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register and each Lender Register shall be available for
inspection by the Borrowers, the L/C Issuer, any Agent and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an administrative
questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder) and the written consent of the L/C Issuer and
the Administrative Agent (to the extent required) to such assignment, the
Administrative Agent or, in the case of an assignment pursuant to the last
sentence of subsection (b) above, the assigning Lender shall (i) accept such
Assignment and Acceptance, and (ii) record the information contained therein in
the Register or a Lender Register, as applicable. No assignment shall be
effective unless it has been recorded in the Register or a Lender Register, as
applicable, as provided in this Section 12.07; provided, however, that a
Related Lender Assignment of B-Loans will be effective, valid, legal and
binding without regard to whether the assignor or the assignee has delivered to
the Administrative Agent any of the items otherwise required under this Section
12.07 except that the Administrative Agent and the Borrowers shall be entitled
to continue to deal solely with the assignor unless and until an Assignment and
Acceptance has been delivered to and recorded by the Administrative Agent.
(f) Each Lender may without the consent of the Borrowers, the L/C
Issuer or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment(s) and the Loans);
provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.08 and 4.05 to the same
extent as if they were Lenders (but, with respect to any particular
participant, to no greater extent than the Lender that sold the participation
to such participant) and (iv) the Borrowers, the Administrative Agent, the L/C
Issuer and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans or Letter of Credit
Obligations and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of
130
principal of or the rate at which interest is payable on the Loans, extending
any scheduled principal payment date or date fixed for the payment of interest
on the Loans, increasing or extending the Commitments, releasing all or any
substantial part of the Collateral except as set forth in Section 10.08 of
this Agreement or in any other Loan Document, or releasing the Guaranty (or
Guaranties) of any Guarantor(s) who have pledged any substantial part of the
Collateral.
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 12.07, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrowers furnished to
such Lender by or on behalf of the Borrowers; provided that, prior to any such
disclosure of information designated by the Borrowers as confidential, each
such assignee or participant or proposed assignee or participant shall execute
an agreement whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 12.20.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to secure extensions of credit to such Lender or in
support of obligations owed by such Lender; provided that no such assignment
shall release a Lender from any of its obligations hereunder or substitute or
permit the substitution of any such assignee for such Lender as a party hereto.
(i) [Reserved]
(j) No Borrower shall assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the L/C Issuer and each Lender, and any attempted assignment without such
consent shall be null and void.
Section 12.08 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of this Agreement by telecopier shall be equally as effective as delivery of an
original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by telecopier also shall deliver an
original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement. The foregoing shall apply to each other
Loan Document mutatis mutandis.
Section 12.09 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN THE STATE OF NEW YORK.
131
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE COUNTY
OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY
HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH LOAN PARTY
HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM, LOCATED AT ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ AS ITS AGENT FOR SERVICE OF PROCESS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWER AT ITS ADDRESS
FOR NOTICES AS SET FORTH IN Section 12.01 AND TO CT CORPORATION SYSTEM, SUCH
SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO SERVICE OF PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER JURISDICTION. EACH LOAN
PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION
OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY LOAN PARTY HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT
IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH
LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 12.11 WAIVER OF JURY TRIAL, ETC. EACH LOAN PARTY, EACH AGENT AND
EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT,
DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED
IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING
IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION,
PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT ANY AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING
OR
132
COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY
ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND
THE LENDERS ENTERING INTO THIS AGREEMENT.
Section 12.12 Consent by the Agents and Lenders. Except as otherwise
expressly set forth herein to the contrary, if the consent, approval,
satisfaction, determination, judgment, acceptance or similar action (an
"Action") of any Agent or any Lender shall be permitted or required pursuant
to any provision hereof or any provision of any other agreement to which any
Loan Party is a party and to which any Agent or any Lender has succeeded
thereto, such Action shall be required to be in writing and may be withheld or
denied by such Agent or such Lender, in its sole discretion, with or without
any reason, and without being subject to question or challenge on the grounds
that such Action was not taken in good faith.
Section 12.13 No Party Deemed Drafter. Each of the parties hereto agrees
that no party hereto shall be deemed to be the drafter of this Agreement.
Section 12.14 Reinstatement; Certain Payments. If any claim is ever made
upon any Agent, any Lender or the L/C Issuer for repayment or recovery of any
amount or amounts received by such Agent, such Lender or the L/C Issuer in
payment or on account of any of the Obligations, such Agent, such Lender or
the L/C Issuer shall give prompt notice of such claim to each other Lender and
the Administrative Borrower, and if such Agent, such Lender or the L/C Issuer
repays all or part of such amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over such Agent,
such Lender or the L/C Issuer or any of its property, or (ii) any good faith
settlement or compromise of any such claim effected by such Agent, such Lender
or the L/C Issuer with any such claimant, then and in such event each Loan
Party agrees that (A) any such judgment, decree, order, settlement or
compromise shall be binding upon it notwithstanding the cancellation of any
Indebtedness hereunder or under the other Loan Documents or the termination of
this Agreement or the other Loan Documents, and (B) it shall be and remain
liable to such Agent, such Lender or the L/C Issuer hereunder for the amount
so repaid or recovered to the same extent as if such amount had never
originally been received by such Agent, such Lender or the L/C Issuer.
Section 12.15 Indemnification.
(a) The Loan Parties agree, jointly and severally, to pay all
reasonable out-of-pocket expenses incurred by the Agents and the L/C Issuer,
including the reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Agents, in connection with the syndication of the credit
facilities provided for herein and the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the transactions hereby or thereby contemplated shall be consummated); provided
that the Loan Parties shall not be responsible for the reasonable fees, charges
and disbursements of more than one separate law firm (in addition to Dutch
counsel, local counsel or other special counsel, including special workout
counsel) pursuant to its obligations under this sentence only. The Loan
Parties also agree, jointly and severally, to pay all reasonable out-of-pocket
expenses incurred by any Agent, the L/C Issuer or any Lender in connection with
the enforcement or
133
protection of its rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit
Accommodations issued hereunder, including the reasonable fees, charges and
disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Agents, and, in
connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel (including special workout
counsel) for any Agent, the L/C Issuer or any Lender.
(b) The Borrowers agree, jointly and severally, to indemnify each
Agent, each Lender, the L/C Issuer and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related reasonable out-of-pocket expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letter of Credit Accommodations, and
(iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, no Loan Party
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, any Loan or Letter of Credit Accommodation or the use of the proceeds
thereof.
(d) Without limiting any other subsection of this Section 12.15,
each Loan Party agrees to, jointly and severally, defend, indemnify, and hold
harmless each Agent, each Lender, the L/C Issuer and each Related Party of any
of the foregoing Persons (each such Person being called an "Indemnitee")
against any and all Environmental Liabilities and Costs and all other claims,
demands, penalties, fines, liability (including strict liability), losses,
damages, costs and expenses (including without limitation, reasonable legal
fees and expenses, consultant fees and laboratory fees), arising out of (i) any
Releases or threatened Releases (x) at any property presently or formerly owned
or operated by any Loan Party or any Subsidiary of any Loan Party, or any
predecessor in interest, or (y) of any Hazardous Materials Handled by any Loan
Party or any Subsidiary of any Loan Party, or any predecessor in interest;
(ii) any violations of Environmental Laws relating to any Loan Party or any
Subsidiary of any Loan Party or for which any Loan Party or any Subsidiary of
any Loan Party may legally be held liable; (iii) any Environmental Action
relating to any Loan Party or any Subsidiary of any Loan Party, or any
predecessor in interest; (iv) any personal injury (including wrongful death) or
property damage (real or personal) arising out of exposure to Hazardous
Materials Handled by any Loan Party or any Subsidiary of any Loan Party, or any
predecessor in interest; and (v) any breach of any
134
warranty or representation regarding environmental matters made by the Loan
Parties in Section 6.01(r) or the breach of any covenant made by the Loan
Parties in Section 7.01(j). Notwithstanding the foregoing, the Loan Parties
shall not have any obligation to any Indemnitee under this subsection (b)
regarding any potential environmental matter covered hereunder which is caused
by the gross negligence or willful misconduct of such Indemnitee, as
determined by a final judgment of a court of competent jurisdiction.
(e) The provisions of this Section 12.15 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Revolving A Credit
Commitments, the B-Commitments, the expiration of any Letter of Credit
Accommodation, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of any Agent, any Lender or the L/C Issuer. All amounts due under this
Section 12.15 shall be payable on written demand therefor.
(f) The indemnification for all of the foregoing losses, damages,
fees, costs and expenses of the Indemnitees are chargeable against the Loan
Account. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in this Section 12.15 may be unenforceable because it is
violative of any law or public policy, each Loan Party shall, jointly and
severally, contribute the maximum portion which it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
Section 12.16 Parent as Agent for Borrowers. Each Borrower hereby
irrevocably appoints the Parent as the borrowing agent and attorney-in-fact
for the Borrowers (the "Administrative Borrower") which appointment shall
remain in full force and effect unless and until the Administrative Agent
shall have received prior written notice signed by all of the Borrowers that
such appointment has been revoked and that another Borrower has been appointed
Administrative Borrower. Each Borrower hereby irrevocably appoints and
authorizes the Administrative Borrower (i) to provide to each of the Agents
and receive from each of the Agents all notices with respect to Loans obtained
for the benefit of any Borrower and all other notices and instructions under
the Loan Documents and (ii) to take such action as the Administrative Borrower
deems appropriate on its behalf to obtain Loans and to exercise such other
powers as are reasonably incidental thereto to carry out the purposes of this
Agreement. It is understood that the handling of the Loan Account and
Collateral of the Borrowers in a combined fashion, as more fully set forth
herein, is done solely as an accommodation to the Borrowers in order to
utilize the collective borrowing powers of the Borrowers in the most efficient
and economical manner and at their request, and that none of the Agents nor
the Lenders shall incur liability to the Borrowers as a result hereof. Each of
the Borrowers expects to derive benefit, directly or indirectly, from the
handling of the Loan Account and the Collateral in a combined fashion since
the successful operation of each Borrower is dependent on the continued
successful performance of the integrated group. To induce the Agents and the
Lenders to do so, and in consideration thereof, each of the Borrowers hereby
jointly and severally agrees to indemnify the Indemnitees and hold the
Indemnitees harmless against any and all liability, expense, loss or claim of
damage or injury, made against such Indemnitee by any of the Borrowers or by
any third party whosoever, arising from or incurred by reason of (a) the
135
handling of the Loan Account and Collateral of the Borrowers as herein
provided, (b) the Agents and the Lenders relying on any instructions of the
Administrative Borrower, or (c) any other action taken by any Agent or any
Lender hereunder or under the other Loan Documents.
Section 12.17 Records. The unpaid principal of and interest on the Loans,
the interest rate or rates applicable to such unpaid principal and interest,
the duration of such applicability, the Commitments, and the accrued and
unpaid fees (including, without limitation, the Unused Line Fee and Letter of
Credit Fee) payable pursuant to the terms hereof, shall at all times be
ascertained from the records of the Administrative Agent, which shall be
conclusive and binding absent manifest error.
Section 12.18 Binding Effect. This Agreement shall become effective as of
the date hereof when it shall have been executed by each Loan Party, each
Agent and each Lender and when the conditions precedent set forth in Section
5.03 hereof have been satisfied or waived in writing by the Administrative
Agent, and thereafter shall be binding upon and inure to the benefit of each
Loan Party, each Agent and each Lender, and their respective successors and
assigns, except that the Loan Parties shall not have the right to assign their
rights hereunder or any interest herein without the prior written consent of
each Lender, and any assignment by any Lender shall be governed by Section
12.07 hereof.
Section 12.19 Interest. It is the intention of the parties hereto that
each Agent and each Lender shall conform strictly to usury laws applicable to
it. Accordingly, if the transactions contemplated hereby or by any other Loan
Document would be usurious as to any Agent or any Lender under laws applicable
to it (including the laws of the United States of America and the State of New
York or any other jurisdiction whose laws may be mandatorily applicable to
such Agent or such Lender notwithstanding the other provisions of this
Agreement), then, in that event, notwithstanding anything to the contrary in
this Agreement or any other Loan Document or any agreement entered into in
connection with or as security for the Obligations, it is agreed as follows:
(i) the aggregate of all consideration which constitutes interest under law
applicable to any Agent or any Lender that is contracted for, taken, reserved,
charged or received by such Agent or such Lender under this Agreement or any
other Loan Document or agreements or otherwise in connection with the
Obligations shall under no circumstances exceed the maximum amount allowed by
such applicable law, any excess shall be canceled automatically and if
theretofore paid shall be credited by such Agent or such Lender on the
principal amount of the Obligations (or, to the extent that the principal
amount of the Obligations shall have been or would thereby be Paid in Full,
refunded by such Agent or such Lender, as applicable, to the Borrowers); and
(ii) in the event that the maturity of the Obligations is accelerated by
reason of any Event of Default under this Agreement or otherwise, or in the
event of any required or permitted prepayment, then such consideration that
constitutes interest under law applicable to any Agent or any Lender may never
include more than the maximum amount allowed by such applicable law, and
excess interest, if any, provided for in this Agreement or otherwise shall be
canceled automatically by such Agent or such Lender, as applicable, as of the
date of such acceleration or prepayment and, if theretofore paid, shall be
credited by such Agent or such Lender, as applicable, on the principal amount
of the Obligations (or, to the extent that the principal amount of the
Obligations shall have been or would thereby be Paid in Full, refunded by such
Agent or such Lender to the Borrowers). All sums paid or agreed to be paid to
any Agent or such Lender for the use, forbearance or detention of sums due
hereunder shall, to the
136
extent permitted by law applicable to such Agent or such Lender, be amortized,
prorated, allocated and spread throughout the full term of the Loans until
payment in full so that the rate or amount of interest on account of any Loans
hereunder does not exceed the maximum amount allowed by such applicable law.
If at any time and from time to time (x) the amount of interest payable to any
Agent or such Lender on any date shall be computed at the Highest Lawful Rate
applicable to such Agent or such Lender pursuant to this Section 12.19 and (y)
in respect of any subsequent interest computation period the amount of
interest otherwise payable to such Agent or such Lender would be less than the
amount of interest payable to such Agent or such Lender computed at the
Highest Lawful Rate applicable to such Agent or such Lender, then the amount
of interest payable to such Agent or such Lender in respect of such subsequent
interest computation period shall continue to be computed at the Highest
Lawful Rate applicable to such Agent or such Lender until the total amount of
interest payable to such Agent or such Lender shall equal the total amount of
interest which would have been payable to such Agent or such Lender if the
total amount of interest had been computed without giving effect to this
Section 12.19.
For purposes of this Section 12.19, the term "applicable law" shall
mean that law in effect from time to time and applicable to the loan
transaction between the Borrowers, on the one hand, and the Agents and the
Lenders, on the other, that lawfully permits the charging and collection of the
highest permissible, lawful non-usurious rate of interest on such loan
transaction and this Agreement, including laws of the State of New York and, to
the extent controlling, laws of the United States of America.
The right to accelerate the maturity of the Obligations does not
include the right to accelerate any interest that has not accrued as of the
date of acceleration.
Section 12.20 Confidentiality. Each Agent and each Lender agrees (on
behalf of itself and each of its affiliates, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of this nature and in accordance with safe and sound practices of comparable
commercial finance companies, any non-public information supplied to it by the
Loan Parties pursuant to this Agreement or the other Loan Documents which, in
the case of information provided after the Effective Date, is identified in
writing by the Loan Parties as being confidential at the time the same is
delivered to such Person (and which at the time is not, and does not
thereafter become, publicly available or available to such Person from another
source not known to be subject to a confidentiality obligation to such Person
not to disclose such information), provided that nothing herein shall limit
the disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to counsel for any Agent or such
Lender on a confidential basis, (iii) to examiners, auditors or accountants on
a confidential basis, (iv) in connection with any litigation to which any
Agent or such Lender is a party or (v) to any assignee or participant (or
prospective assignee or participant) or party to a Securitization so long as
such assignee or participant or party (or prospective assignee or participant)
first agrees, in writing, to be bound by confidentiality provisions similar in
substance to this Section 12.20. Each Agent and each Lender agrees that, upon
receipt of a request or identification of the requirement for disclosure
pursuant to clause (iv) hereof, it will make reasonable efforts to keep the
Loan Parties informed of such request or identification; provided that each
Loan Party acknowledges that each Agent and each Lender may make disclosure as
137
required or requested by any Governmental Authority or representative thereof
and that each Agent and each Lender may be subject to review by or other
regulatory agencies and may be required to provide to, or otherwise make
available for review by, the representatives of such parties or agencies any
such non-public information.
Section 12.21 Integration. This Agreement, together with the other Loan
Documents, reflects the entire understanding of the parties with respect to
the transactions contemplated hereby and shall not be contradicted or
qualified by any other agreement, oral or written, before the date hereof.
Section 12.22 Replacement of Lenders. If any Lender, any Agent or the L/C
Issuer requests compensation under Section 4.05, or if the Borrowers are
required to pay any additional amount to any Lender, any Agent or the L/C
Issuer or any Governmental Authority for the account of any Lender pursuant to
Section 2.08, or if any Lender defaults in its obligation to fund Revolving A
Loans hereunder, then the Borrowers may, at their sole expense and effort,
upon notice by the Administrative Borrower to such Lender, such Agent or the
L/C Issuer, as applicable, and the Administrative Agent, require such Lender,
such Agent or the L/C Issuer, as applicable, to assign and delegate without
recourse (in accordance with and subject to the restrictions contained in
Section 12.07) all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender if such Lender, such Agent or the L/C Issuer accepts such
assignment, or any other Person); provided that (i) the Borrowers shall have
received the prior written consent of the Administrative Agent, which consent
shall not be unreasonably withheld, (ii) such Lender, such Agent or the L/C
Issuer shall have received payment of an amount equal to the outstanding
principal of its Loans and Pro Rata Share of Letter of Credit Obligations,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of all other
amounts), (iii) in the case of any such assignment resulting from a claim for
compensation under Section 4.05 or payments required to be made pursuant to
Section 2.08, such assignment will result in a reduction in such compensation
or payments, and (iv) such assignee shall be subject to Section 12.07.
Section 12.23 Dutch Parallel Debt. Solely for purposes of the Loan
Documents governed by the laws of The Netherlands:
(a) Each of the Loan Parties hereby irrevocably and
unconditionally agrees to pay to the Collateral Agent an amount equal to the
aggregate amount of obligations payable by each such Loan Party in respect of
its Corresponding Obligations as they may exist from time to time (each
obligation undertaken by any Loan Party being referred to herein as "Parallel
Debt"). The Parallel Debt of each Loan Party will be payable in US Dollars.
(b) The Parallel Debt of each Loan Party will become due and
payable (opeisbaar) as and when one or more of the Corresponding Obligations of
such Loan Party become due and payable under the Loan Documents.
(c) Each of the Loan Parties hereby acknowledges that:
138
(i) its Parallel Debt constitutes an undertaking,
obligation and liability of the relevant Loan Party to the Collateral Agent
which is separate and independent from, and without prejudice to, the
Corresponding Obligations; and
(ii) its Parallel Debt represents the Collateral Agent's own
separate and independent claim (eigen en zelfstandige vordering) to receive
payment of such Parallel Debt from such Loan Party,
it being understood, in each case, that pursuant to this Section 12.23, the
amount which may become payable by any Loan Party as its Parallel Debt shall
not exceed the total of the amounts which are payable under the Corresponding
Obligations of such Loan Party.
(d) For the avoidance of doubt, the parties confirm that the
claim of the Collateral Agent against any Loan Party in respect of its Parallel
Debt and the claims of any one or more of the Agents or the Lenders against
such Loan Party in respect of the Corresponding Obligations payable by such
Loan Party to the Agents or Lenders do not constitute common property
(gemeenschap) within the meaning of article 3:166 of the Netherlands Civil Code
and that the provisions relating to common property shall not apply to the
Corresponding Obligations. If, however, the claim of the Collateral Agent and
the claims of any one or more of the Agents and the Lenders constitute common
property and the provisions of common property are applicable, the parties
agree that this Section 12.23 shall constitute the administration agreement
(beheersregeling) within the meaning of article 3:168 of the Netherlands Civil
Code.
(e) To the extent the Collateral Agent irrevocably
(onaantastbaar) receives any amount in payment of the Parallel Debt of any Loan
Party, the Collateral Agent shall distribute that amount among the Agents and
the Lenders in accordance with the other provisions of the Loan Documents.
Upon irrevocable receipt by the Collateral Agent of any amount so distributed
to it in payment of such Parallel Debt (a "Received Amount"), the Corresponding
Obligations of such Loan Party to the Agents and Lenders shall be reduced on
the date of receipt by the Collateral Agent by an amount equal to the Received
Amount in a manner as if the Deductible Amount were received as payment of the
Corresponding Obligations.
(f) Solely for purposes of this Section 12.23, a "Corresponding
Obligation" means the Obligations.
Section 12.24 Restatement of Prior Financing Agreement. The parties
hereto agree that, on the date hereof, the following transactions shall be
deemed to occur automatically, without further action by any party hereto:
(a) the Prior Financing Agreement shall be deemed to be amended
and restated in its entirety in the form of this Agreement;
(b) all Existing Obligations outstanding on the date hereof shall
be deemed to be Obligations outstanding hereunder;
(c) the Guaranties and the other Loan Documents, including the
Liens created thereunder and securing payment of the Existing Obligations, as
amended and restated on the
139
date hereof, shall remain in full force and effect with respect to the
Obligations and are hereby reaffirmed; and
(d) all references in the other Loan Documents to the Prior
Financing Agreement shall be deemed to refer without further amendment to this
Agreement.
The parties acknowledge and agree that this Agreement and the other
Loan Documents do not constitute a novation, payment and reborrowing or
termination of the Existing Obligations and that all such Existing Obligations
are in all respects continued and outstanding as Obligations under this
Agreement and the other Loan Documents with only the terms being modified from
and after the date of this Agreement as provided in this Agreement and the
other Loan Documents.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
140
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
BORROWERS:
MILACRON INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Finance and
Chief Financial Officer
CIMCOOL INDUSTRIAL PRODUCTS INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
D-M-E MANUFACTURING INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
D-M-E U.S.A. INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
MILACRON INDUSTRIAL PRODUCTS, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
141
MILACRON MARKETING COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
MILACRON PLASTICS TECHNOLOGIES GROUP INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇▇▇ MACHINERY CHICAGO, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
NORTHERN SUPPLY COMPANY, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
OAK INTERNATIONAL INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
142
PLIERS INTERNATIONAL, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
UNILOY MILACRON INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
UNILOY MILACRON U.S.A. INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
GUARANTORS:
D-M-E COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MILACRON CAPITAL HOLDINGS B.V.
By: /s/ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
143
MILACRON INTERNATIONAL MARKETING COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer and Assistant
Secretary
MILACRON RESIN ABRASIVES INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
LENDER:
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ S. ▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: S. ▇▇▇▇▇▇▇ ▇▇▇
Title: Director
144