EX-10.1
2
ex10-1.htm
ASSET BASED FINANCE AGREEMENT
Exhibit
10.1
|
|
DATED
|
12
March 2008
|
|
|
|
|
|
|
|
LLOYDS
TSB BANK PLC, NETHERLANDS BRANCH
AND
BELGIUM BRANCH
|
(1)
|
|
|
LLOYDS
TSB COMMERCIAL FINANCE LIMITED,
|
(2)
|
|
|
CIMCOOL
EUROPE B.V.
|
(3)
|
|
|
CIMCOOL
INDUSTRIAL PRODUCTS B.V.
|
(4)
|
|
|
D-M-E
EUROPE CVBA
|
(5)
|
|
|
FERROMATIK
MILACRON MASCHINENBAU GMBH
|
(6)
|
|
|
MILACRON
KUNSTSTOFFMASCHINEN EUROPA GMBH
|
(7)
|
|
|
MILACRON
B.V
|
(8)
|
|
|
And
|
|
|
|
MILACRON
NEDERLAND B.V
|
(9)
|
CONTENTS
|
DATE
OF ASSET BASED FINANCE AGREEMENT
|
12
March 2008
|
|
PARTIES
|
|
(1)
|
LLOYDS TSB BANK PLC, a
public limited company incorporated under the law of England and Wales
(Company Number 00002065) acting through its branch offices at ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, which branch office is
registered with the Trade Register of the Chamber of Commerce (▇▇▇▇▇ van Koophandel)
under number 33185396 (“Lloyds TSB Netherlands
Branch”) and at ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ registered
with the register of legal entities (kruispuntbank voor
ondernemingen) under enterprise number 0448315291 (“Lloyds TSB Belgium Branch”
and together with Lloyds TSB Netherlands Branch, “Lloyds
TSB”);
|
|
(2)
|
LLOYDS TSB COMMERCIAL FINANCE
LIMITED, a private limited company incorporated under the law of
England and Wales (Company Number 00733011), with its
registered offices at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (“Lloyds TSB CF” and
together with Lloyds TSB, the “Lenders”)
|
|
(3)
|
CIMCOOL EUROPE B.V., a
private limited liability company (besloten vennootschap met
beperkte aansprakelijkheid) organised under the law of the
Netherlands, whose registered seat (statutaire zetel) is
Vlaardingen, the Netherlands, registered with the Chamber of Commerce of
Rotterdam under number 24303473 and having its office address at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, the Netherlands (“Cimcool
Europe”);
|
|
(4)
|
CIMCOOL INDUSTRIAL PRODUCTS
B.V., a private limited liability company (besloten vennootschap met
beperkte aansprakelijkheid) organised under the law of the
Netherlands, whose corporate seat is at Vlaardingen, registered with the
Chamber of Commerce under number 24212814 and having its office
address at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, the Netherlands (“Cimcool
Industrial”);
|
|
(5)
|
D-M-E EUROPE CVBA, a
co-operative company (coöperatieve
vennootschap) organised and existing under the law of Belgium,
having its registered office at Industriepark Noord, ▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ and recorded with the register of legal entities (kruispuntbank voor
ondernemingen) under enterprise number 0456 932 455 (“D-M-E”);
|
|
(6)
|
FERROMATIK MILACRON
MASCHINENBAU GMBH, a German company registered in the commercial
register of the Local Court Freiburg im Bresgau under HR B 260880, having
its business seat at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (“Ferromatik”);
|
|
(7)
|
MILACRON KUNSTSTOFFMASCHINEN
EUROPA GMBH, a German company registered in the commercial register
of the Local Court Freiburg im Bresgau under HR B 260914, having its
business seat at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (“MKE”);
|
|
(8)
|
MILACRON B.V. a private
limited company (besloten vennootschap met
beperkte aansprakelijkheid) organised under the law of the
Netherlands, having its corporate seat in Vlaardingen, registered with the
Chamber of Commerce under number 24209768 and having its office
address at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
and
|
1
|
(9)
|
MILACRON NEDERLAND B.V.
a private limited company (besloten vennootschap met
beperkte aansprakelijkheid) organised under the law of the
Netherlands, having its corporate seat in Vlaardingen, registered with the
Chamber of Commerce under number 24280521 and having its office address at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.
|
INTRODUCTION
|
A
|
Subject
to the terms of this Agreement and the Financing Documents, the Lenders
shall make the Facilities available to the
Clients.
|
|
B
|
The
parties hereto wish to record their agreement on various issues relating
to the Facilities.
|
IT
IS HEREWITH AGREED THAT:
|
1.1
|
In
this Agreement, capitalised terms (unless otherwise defined) shall have
the meaning given to them in Schedule
3.
|
|
1.2
|
References
to clauses, paragraphs and schedules are to be construed, unless otherwise
stated, as references to clauses, paragraphs and schedules of this
Agreement and references to this Agreement include its
schedules.
|
The
maximum aggregate amount to be made available to the Clients pursuant to the
Facilities (the “Facility
Amount”) shall be twenty seven million euros (€27,000,000) at any time
outstanding on a revolving basis.
|
2.2
|
At
the Commencement Date, the Property Facility Limit shall be an amount of
eleven million one hundred and sixty thousand euros (€11,160,000) and
shall thereafter reduce in equal quarterly amounts of two hundred and
seventy nine thousand euros (€279,000). The Facility Amount shall remain
constant regardless of such reduction of the Property Facility
Limit.
|
|
2.3
|
For
the avoidance of doubt, the Aggregate Debt Financing Limit shall be the
Facility Amount less the Property Facility Limit from time to
time.
|
|
2.4
|
All
of the Facilities must be finally repaid on the date (the “Final Repayment Date”)
falling five years after the Commencement
Date.
|
The
proceeds of the Facilities shall be used solely:
|
|
(a)
|
to
finance working capital needs of the Clients, including to refinance
existing credit commitments of any of the Clients;
and
|
2
|
|
(b)
|
to
finance working capital needs of affiliates of the Clients, including
through dividends, distributions, intercompany loans, repayment of
intercompany loans and similar intragroup
transactions.
|
During
the course of the Facilities, the Clients shall pay to the Lenders, monthly in
arrears, a service charge of Euro 10,500 in aggregate per calendar month with
the Clients jointly and severally liable for such charge.
The
Clients shall pay to the Lenders on the Commencement Date an arrangement fee of
0.5% of the Facility Amount in aggregate with the Clients jointly and severally
liable for such fee.
During
the course of the Facilities, the Clients shall pay to the Lenders each month,
in aggregate, an unused line fee of 0.25% per annum on the average of the daily
unused amounts of the Facility Amount, in respect of the previous
month.
|
4.1
|
The
Lenders shall underwrite 100% of the Facilities but after the
Commencement Date may assign, or grant participations in, up to 49 % of
the Facility Amount to third parties, subject to the prior written consent
of Milacron B.V. as to the proposed participants or assignees (with such
consent not to be unreasonably withheld) and subject to compliance with
the provision of clause 4.2.
|
|
4.2
|
The
terms of any participation or assignment granted pursuant to clause 4.1 shall be void unless it is subject to
terms preventing any assignee or new participant (whether direct or
indirect) from assigning or granting participations in any of its rights
or obligations under the Facilities without the prior written consent of
Milacron B.V., with such consent not to be unreasonably
withheld.
|
|
4.3
|
The
Clients may only assign claims and rights under this Agreement or any of
the Facilities or the Financing Documents, or respectively, encumber such
claims with the rights of third parties with the prior written approval
of the Lenders, which shall not be unreasonably
withheld.
|
If the
Lenders acting in good faith are unable to achieve a Successful Syndication of
the Facilities in accordance with the terms of this clause 4.4 then the Lenders
shall be entitled (after consultation with the Clients and after demonstrating
that reasonable endeavours have been used to syndicate the Facilities
successfully) to increase the Margin in respect of each of the Facilities by a
maximum of 0.5%.
3
|
5.1
|
Subject
to clause 5.2 if the Facilities are terminated for any reason prior to the
second anniversary of the Commencement Date, the Clients shall pay, on a
joint and several basis, an early termination fee of 1% of the Facility
Amount in aggregate to the Lenders.
|
|
5.2
|
The
provisions of clause 5.1 will not apply in the event that the Lenders
terminate the Facilities in accordance with the terms of the Financing
Documents:
|
|
|
(a)
|
because
it becomes unlawful in any jurisdiction for Lloyds TSB or Lloyds TSB CF to
perform any of their obligations contemplated by the Finance Documents or
fund or maintain the Facilities;
and/or
|
|
|
(b)
|
because
a material adverse change in the Tax regime applicable to Lloyds TSB or
Lloyds TSB CF occurs (where such material adverse change is not
attributable to the wilful misconduct or gross negligence of the
Lenders).
|
For the
avoidance of doubt, the Lenders do not have any right to terminate the
Facilities for a material adverse change in the Tax regime if the Clients at
their discretion pay an amount to the Lenders equal to the amount required to
put the Lenders in the position that they would have been if such material
adverse change had not occurred. The Lenders and the Clients agree
that if such a material adverse change in the Tax regime occurs and following
payment by the Clients to the Lenders of such aforementioned amount, the Lenders
receive more than the amount they would have received in the absence of such a
material adverse change in the Tax regime (whether because of a subsequent
change in the Tax regime or otherwise), the Lenders will refund to the Clients
the excess amount.
|
5.3
|
At
any time after the second anniversary of the Commencement Date, the
Clients may terminate the Facilities by giving at least 3 months notice to
the Lenders or at the Clients’ sole discretion, by the Clients paying the
Lenders the sum of US$200,000 (or the equivalent amount in Euro as at the
date of payment) in aggregate to terminate the Facilities immediately at
any time.
|
|
5.4
|
Termination
of any of the Facilities will cause all other Facilities to be terminated
simultaneously.
|
|
6.1
|
It
is the Clients’ intention that, within six months of the date of this
Agreement, Ferromatik and MKE will merge into
MKE. Nothwithstanding the provisions of any of the Financing
Documents, the Lenders agree to such merger and the Clients agree to
consult with the Lenders as soon as reasonably practicable prior to such
merger to ensure that, so far as possible, the Lenders’ rights under the
Facilities are not and will not be materially prejudiced by such
merger.
|
|
6.2
|
Milacron
B.V. agrees that immediately upon completion of the merger referred to in
clause 6.1 above it will enter into a deed of pledge for the purpose of
creating a right of pledge over the shares in the company resulting from
such merger.
|
4
|
7.1
|
All
notices or other communications in connection with this Agreement shall be
given in writing. The address, email address and fax number of each party
for all notices under this Agreement are those specified below (or such
other address, email address or fax number as notified by that party by
not less than five business days’ prior
notice):
|
|
|
(a)
|
Address
of Lloyds TSB Netherlands Branch:
|
| | | |
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
The
Netherlands
|
|
|
|
Attention:
|
Loans
Administration Department
|
|
|
|
|
|
Mrs.
▇▇▇▇▇▇▇ Van der Meer
|
|
|
|
|
|
|
|
|
|
|
Tel:
|
003123
▇▇▇▇▇▇▇
|
|
|
|
|
Fax:
|
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
|
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇.▇▇▇.▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇
|
| | | |
|
|
(b)
|
Address
of Lloyds TSB Belgium Branch:
|
| | | |
|
|
|
▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
|
Attention:
|
Loans
Administration Department
|
|
|
|
|
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
|
|
|
|
|
|
|
|
Tel:
|
+
▇▇ ▇ ▇▇▇ ▇▇ ▇▇
|
|
|
|
|
Fax:
|
+
▇▇ ▇ ▇▇▇ ▇▇ ▇▇
|
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇
|
| | | | |
|
|
|
Address
of Lloyds TSB CF:
|
|
| | | |
|
|
|
Niederlassung
Deutschland
|
|
|
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇. ▇▇▇
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇
|
|
|
|
D-33415
Verl
|
▇▇▇▇▇
▇▇▇▇▇
|
|
|
|
▇▇▇▇▇▇▇
|
Germany
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
▇▇.
▇▇▇▇ ▇▇▇▇▇
|
|
|
|
|
|
Managing
Director
|
|
|
|
|
|
|
|
|
|
|
Tel:
|
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
|
| | | |
|
|
(c)
|
Address
of Cimcool Europe B.V.:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇
van Geemen
|
|
|
|
Tel:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
|
Fax:
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
| | | |
5
|
|
(d)
|
Address
of Cimcool Industrial Products B.V.:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇
van Geemen
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
| | | |
|
|
(f)
|
Address
of D-M-E Europe CVBA:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇ ▇
▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
|
| | | |
|
|
(g)
|
Address
of Ferromatik
Milacron Maschinenbau GmbH:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
| | | |
|
|
(h)
|
Address
of Milacron Kunststoffmaschinen Europa GmbH:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
| | | |
6
|
|
(i)
|
Address
of Milacron B.V.:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Attention:
|
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
|
| | | |
|
|
(j)
|
Address
of Milacron Nederland B.V.:
|
| | | |
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
| | | | | |
|
|
|
Attention:
|
▇▇▇▇
van Geemen
|
|
| | | | |
|
|
|
Tel:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
|
Fax:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
|
E-mail:
|
▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|
8.1
|
Once
executed, this Agreement, together with the Financing Documents and any
security document entered into in connection therewith, includes all terms
agreed between the Lenders, the Clients and the Guarantors in connection
with the provision of the Facilities to the exclusion of any
representations and statements made by either of Lloyds TSB or Lloyds TSB
CF or any of the Clients or Guarantors or on behalf of any of them whether
orally or in writing prior to the date of this
Agreement.
|
|
8.2
|
In
the event of any inconsistency between the terms of any of the Financing
Documents and this Agreement, the terms of this Agreement shall
prevail.
|
This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts each of which, when executed and delivered, shall
constitute an original and all the counterparts together shall constitute but
one and the same agreement.
|
10.1
|
This
Agreement is governed by the law of the
Netherlands.
|
|
10.2
|
The
competent courts of Amsterdam, The Netherlands shall have exclusive
jurisdiction with regard to disputes in connection with this
Agreement.
|
7
SCHEDULE 1
CONDITIONS
PRECEDENT
Before
making the Facilities available to the Clients, in addition to the conditions
precedent set out in the Financing Documents, the Lenders require the following
conditions precedent to be satisfied on terms satisfactory to the
Lenders:
|
1.1
|
In
respect of each Client (and the directors and shareholders of such
entities), the Lenders being satisfied with the results of the LTSB “Know
Your Customer” (anti-money laundering) checks and procedures concerning
such persons, as required by the Lenders’ policies and/or by applicable
laws or regulations.
|
|
1.2
|
The
Clients have provided evidence satisfactory to the Lenders that Opening
Capital Employed at the Commencement Date is substantially in line with
the information provided to the Lenders, after adjustment for any
repatriation to the Clients’ affiliated entities in the United States
pursuant to Conditions 1.6 and 1.7 of Schedule
2.
|
|
1.3
|
The
excess Availability as at the Commencement Date shall be no less than €7
million (including without limitation the Permanent Headroom Block and
taking into account sub-limits and reserves, payment of fees and expenses
of the transaction, the application of the proceeds of the initial
debtors, purchases and loans, and after deduction for obligations overdue
beyond the historical and ordinary course of
dealings).
|
|
1.4
|
At
or immediately before the Commencement Date, trade creditors of the
Clients must be at a level and in a condition reasonably satisfactory to
the Lenders.
|
|
1.5
|
Completion
and signing of the Financing Documents and all legal documentation in
relation thereof, in a form satisfactory to the
Lenders.
|
Legal
opinion addressed and satisfactory to the Lenders from Cravath, Swaine &
▇▇▇▇▇ LLP confirming that the Financing Documents and related security
documentation entered into between the Clients and Lloyds TSB and/or Lloyds TSB
CF, as the case may be, do not breach the express provisions of the U.S.
Facility Documentation, subject to customary limitations and assumptions,
including as to the customary nature of the terms of the Financing Documents. In
view of the assumptions included in such legal opinion, each of the Clients
represents and warrants to the Lenders that each Client is a “Foreign Restricted
Subsidiary” as defined in the Parent Indenture and a “Foreign Subsidiary” as
defined in the Parent Credit Agreement and no Client is a “Guarantor” as defined
in the Parent Indenture or a “Credit Party” as defined in the Parent Credit
Agreement.
8
SCHEDULE 2
SPECIAL
CONDITIONS
In
addition to the conditions set out in the Financing Documents, the following
special conditions apply:
|
1.1
|
The
Clients shall keep the Lenders satisfied that goods, which are or shall be
assigned or security assigned to the Lenders, remain covered by insurance
during transportation by delivering to
the Lenders on or promptly following the Commencement Date, and upon
annual renewal, copies of all relevant policies of insurance entered into
with reputable insurers, which policies shall be up to date and in full
force and effect.
|
|
1.2
|
Following
a Termination Event (as defined in the Financing Documents), none of the
Clients and the Guarantors shall repatriate any funds to any of the
Clients’ affiliated entities in the United States, without the prior
consent of the Lenders.
|
|
1.3
|
The
aggregate borrowing under the Financing Documents shall never exceed 150%
of the combined gross receivable ledger balances of the Clients at any
time.
|
|
1.4
|
In
the event of the requirement for an Administrative Agent to be appointed
pursuant to a Successful Syndication, the Lenders will require an
agreement customary for that
arrangement.
|
|
1.5
|
The
Lenders shall apply a Permanent Headroom Block of €2 million against total
Availability.
|
|
1.6
|
None
of the Clients and the Guarantors shall repatriate any funds to the
Clients’ affiliated entities in the United States which would result in
more than (the Euro equivalent of) US$25,000,000 of the aggregate of the
funds initially made available by the Lenders to the Clients pursuant to
all the Financing Documents being repatriated to the Clients’ affiliated
entities in the United States.
|
|
1.7
|
In
relation to repatriation of funds to the United States in excess of the
limit referred to in Condition 1.6 above, the Clients and Guarantors may
repatriate further funds to any of their United States affiliated
entities, provided that pro forma repatriation, Milacron B.V. will procure
that a headroom of €7 million (including the Permanent Headroom Block) is
maintained based on 6 months projections for the European Group and that
the Clients are satisfied that such headroom is sufficient to cover their
working capital requirements over that 6 months period. The Lenders are to
be advised of such further proposed repatriations and, if requested by the
Lenders, Milacron B.V. will provide the Lenders with a 6 month cashflow
forecast in respect of the European
Group.
|
|
2
|
FINANCIAL
AND OTHER COVENANTS
|
|
2.1
|
Fixed
Charge Coverage Covenant:
|
So long
as the Facilities remain outstanding, Milacron B.V. shall procure that the ratio
of EBITDA to Total Fixed Charges in respect of the European Group is maintained
for each Review Period at a minimum of 1:1.
9
|
|
(a)
|
On
each Test Date, Milacron B.V. shall deliver to the Lenders a Compliance
Certificate (in substantially the form set out in Schedule 4 to this
Agreement) showing compliance with the financial covenant set out in
Schedule 2, Condition 2.1 for the relevant Review
Period.
|
|
|
(b)
|
The
EBITDA and Total Fixed Charges in respect of each Review Period (all as
referred to in the financial covenant set out in Schedule 2, Condition
2.1) shall be determined by reference to the consolidated financial
statements duly applying U.S. GAAP of Milacron B.V. for the relevant
Review Period (and in the case of the first Review Period, by reference to
the most recent two quarters’ consolidated financial statements of
Milacron B.V. as at 30 June 2008) and in each case shall be prepared on a
basis consistent with the financial projections provided by the Clients to
the Lenders in the electronic data room established by DLA Piper UK LLP
prior to the date of this Agreement. For the avoidance of doubt
a worked example is included herewith in Schedule
5.
|
|
2.3
|
Debt
Turn and Dilution Rate Covenants
|
|
|
(a)
|
At
all times during the life of the Facilities, the Debt Turn shall not
exceed (i) 80 days in respect of Ferromatik, (ii) 85 days in respect of
the Cimcool Europe, (iii) 60 days in respect of Cimcool Industrial and
(iii) 80 days in respect of D-M-E.
|
|
|
(b)
|
At
all times during the life of the Facilities, the Dilution Rate shall not
exceed (i) 6% in respect of Ferromatik, (ii) 2% in respect of Cimcool
Europe and Cimcool Industrial and (iii) 6% in respect of
D-M-E.
|
|
|
(c)
|
The
Debt Turn and Dilution Rate covenants set out in Schedule 2, Conditions
2.3 (a) and (b) above shall be measured by the Lenders on the last Working
Day of each successive calendar month commencing on the last Working Day
of March 2008 and the Lenders may, at their discretion acting reasonably,
ignore for the purpose of any such measurement, any anomalous or
exceptional item, event or circumstance by virtue of it having arisen
otherwise than as a result of an actual and genuine deterioration of the
debt portfolio. Failure to comply with the Debt Turn and Dilution Rate
covenants shall not constitute and does not result in an event of default
or Termination Event under the Facilities but the Lenders (acting
reasonably and in good faith) shall be entitled to make a proportionate
and commensurate reserve against Availability to reflect the increased
risk associated with such
non-compliance..
|
|
3.1
|
In
the event that Lloyds TSB or Lloyds TSB CF are to provide a guarantee or a
Letter of Credit (reserved against available funding) on behalf of a
Client, a monthly fee will be charged at the rate equal to the margin
charged for that month. Such fee does not include the issuer’s normal
charges.
|
|
3.2
|
The
Lenders may charge reasonable fees/expenses where it is reasonably
necessary to delegate any of its functions as agent, security trustee, or
where an exceptional workload is involved. Such fees are to be agreed with
the Clients before being incurred.
|
10
|
3.3
|
The
Clients shall pay to the Lenders, promptly upon the Lenders’ requests in
accordance with fees estimates provided to, or actual costs properly
incurred by, the Lenders, all reasonable out-of-pocket legal and closing
expenses properly incurred in connection with the provision of the
Facilities, including legal fees and disbursements, filing and search
fees, appraisal fees, environmental fees and field examination expenses,
customary administration expenses of the Lenders and daily field
administration charges, in each case with any applicable VAT, provided
that the Lenders agree to pay (or reimburse the Clients for) the amount of
any, notarisation, filing and registration fees and duties in Belgium over
the amount of ten thousand euros
(€10,000).
|
The
parties hereto intend that the terms and provisions of this Agreement, the
Financing Documents and the related security documentation be, and shall be
interpreted to be, consistent in all respects with the terms and provisions of
the U.S. Facility Documentation. The parties hereto acknowledge that
it shall not be the responsibility of the Lenders to ensure compliance with the
terms and provisions of the U.S. Facility Documentation.
11
SCHEDULE 3
DEFINITIONS
The
following words shall have the following meaning when used in this
Agreement:
“Administrative Agent” means a
legal entity appointed to administer all or any of the Debt Financing Agreements
and/or the Property Facility, pursuant to a Successful Syndication.
“affiliate” means, in relation
to any person, a subsidiary of that person or a holding company of that person
or any other subsidiary of that holding company.
“Aggregate Debt Financing Limit”
means the maximum aggregate amount to be made available to the Clients
pursuant to the Debt Financing Agreements at any one time.
“Availability” means any
positive balance of the aggregate of the value of Eligible Debt and the value of
the German Property minus the aggregate of all outstanding loan amounts advanced
and debts purchased under the Financing Documents.
“Belgian Receivables Finance
Agreement” means the receivables finance agreement dated on or about the
date of this Agreement between Lloyds TSB Belgium Branch and D-M-E.
“Capital Expenditure” means
all net cash payments for fixed assets or improvements replacements,
substitutions or additions thereto having a useful life or remaining useful life
of more than one year and that are required to be capitalised under U.S.
GAAP.
“Clients” means each of
Cimcool Europe, Cimcool Industrial, D-M-E and Ferromatik.
“Commencement Date” means 12
March 2008.
“Debt Finance Facility”
means the revolving
facilities to be made available to the Clients under the terms of the Debt
Financing Agreements.
“Debt Financing Agreement”
means any of the Dutch Receivables Finance Agreements, the Belgian Receivables
Finance Agreement and the German Debt Purchase Agreement.
“Debt Turn” means in relation
to any assigned or pledged debt, the number of days (when measured on a cash
collection basis), being the result of dividing the aggregate of the end of
calendar monthly debtor balances in a relevant jurisdiction by net sales for
that calendar month and multiplying the result by 30.5.
“Dilution Rate” means the
average over a period of twelve months (calculated on a rolling basis) of the
face value of credit notes and non-cash credits, write offs and other
adjustments issued by a Client in a relevant jurisdiction in respect of assigned
or pledged debts which are notified to Lloyds TSB or Lloyds TSB CF, the effect
of which is to reduce the value of such assigned or pledged debts, expressed as
a percentage of the face value of all assigned or pledged debts over such twelve
months period.
“Dutch Receivables Finance
Agreements” means each of the receivables finance agreements dated on or
about the date of this Agreement made between Lloyds TSB Netherlands Branch and
Cimcool Europe and between Lloyds TSB Netherlands Branch and Cimcool
Industrial.
12
“EBITDA” means, for any Review
Period, the consolidated operating profit of the European Group for that Review
Period, as shown in the consolidated accounts for the Review Period
before:
|
|
(a)
|
extraordinary
and exceptional items;
|
|
|
(b)
|
provision
for Taxation;
|
|
|
(c)
|
provision
for amortisation and depreciation (including provision for write-down of
assets); and
|
|
|
(d)
|
Net
Interest Expense.
|
“Eligible Debt” means any debt
which is (i) an Approved Invoice as defined in the Dutch Receivables Finance
Agreements or the Belgian Receivables Finance Agreement, or (ii) an Approved
Receivable as defined in the German Debt Purchase Agreement.
“EURIBOR” means the one month
interbank rate offered in Euro displayed on Reuters screen page EURIBOR 01 or,
if such page is replaced or Reuters screen service ceases to be available, such
rate as displayed on such other page or service specified by the Lenders, after
consultation with the Clients.
“European Group” means
Milacron B.V and its direct and indirect subsidiaries.
“Facilities” means the
Property Facility and the Debt Finance Facility.
“Financing Documents” means
the Debt Financing Agreements and the Property Facility Agreement.
“Fixed Charge Coverage ratio”
means the ratio set out in Schedule 2, Condition 2.1 of this
Agreement.
“German Debt Purchase
Agreement” means the debt purchase agreement dated on or about the date
hereof between Ferromatik (as “Seller”) and Lloyds TSB
CF.
“German Property” means the
real estate property owned by Ferromatik registered with the land register of
Malterdingen kept at the local court of Emmendingen, folio 55, parcels 6561 and
6562 of the map 183.21 and parcels 6607/1, 6607/2 and 4698/6 of the map
184.21.
“Guarantors” means each of the
Clients, Milacron B.V., Milacron Nederland B.V. and MKE.
“Lenders” means Lloyds TSB and
Lloyds TSB CF together.
“Lenders’ Cost of Funds” means
the EURIBOR rate as notified by the Lenders to the Clients.
“Margin” means 1.75 per cent.
per annum over the Lenders’ Cost of Funds in respect of the Debt Finance
Facility and 2.00 per cent. per annum over the Lenders’ Cost of Funds in respect
of the Property Facility.
“Net Interest Expense” means
the aggregate of interest paid in cash by members of the European Group on
borrowings during the Review Period less the aggregate of interest receivable in
cash by members of the European Group during the Review Period.
“Opening Capital Employed”
means total capital plus retained earnings plus or minus and currency
translation adjustments of the European Group.
13
“Parent Credit Agreement”
means the credit agreement dated as of 19 December 2006 (as amended,
supplemented or otherwise modified heretofore) by and among Milacron Inc. and
each of the other borrowers signatory thereto, as borrowers, certain other
subsidiaries of Milacron Inc. signatory thereto, as credit parties, the lenders
signatory thereto from time to time and General Electric Capital Corporation, as
administrative agent.
“Parent Indenture” means the
Indenture dated as of 26 May 2004 (as amended, supplemented or otherwise
modified heretofore) by and among U.S Bank National Association, as trustee,
Milacron Inc. (successor by merger to Milacron Escrow Corporation) as issuer,
and the guarantors party thereto, relating to the 11 ½% senior secured notes due
2011.
“Permanent Headroom Block”
means an excess of Availability in the amount of two million euros (€2,000,000)
to be maintained throughout the term of the Financing Documents.
“Property Facility” means a
revolving facility to be made available to Ferromatik under the terms of the
Property Facility Agreement.
“Property Facility Agreement”
means the agreement dated on or about the date hereof between Lloyds TSB
Netherlands Branch and Ferromatik pursuant to which Lloyds TSB Netherlands
Branch will make the Property Facility available to Ferromatik.
“Property Facility Limit”
means the maximum amount to be made available under the Property Facility at any
one time.
“Review Period” means the most
recent two financial quarters of Milacron B.V. as at the relevant Test
Date.
“subsidiary” means an entity
in which a person:
|
(i)
|
holds
beneficially (directly or indirectly) more than 50% of the issued share
capital (or similar rights of ownership);
or
|
|
(ii)
|
holds
beneficially (directly or indirectly) the right to control the composition
of the majority of its board of directors (or equivalent body) or controls
the majority of the voting rights, in each case, whether through the
ownership of voting capital or by
contract.
|
For the
avoidance of doubt, a person will not have “control” as specified in paragraph
(ii) above where that person has joint control.
“Successful Syndication” means
the Lenders transferring participations and commitments in the Facilities to
other banks and financial institutions approved by the Clients so that it has
assigned or granted participations in 49% of the Facility Amount;
“Tax” or “Taxation” means any form of
taxation and duty, impost or tariff in each case in the nature of taxation
assessable on a Lender in any jurisdiction (including, for the avoidance of
doubt, any jurisdiction in which the Lender is resident, established or acts
through a branch office).
“Termination Event” has the
meaning given to such term in the Dutch Receivables Finance
Agreements.
14
“Test Date” means a date
falling no more than two calendar months after the end of each financial quarter
and the first Test Date shall be no later than two calendar months after 30 June
2008.
“Total Fixed Charges” means,
for a Review Period, the aggregate of:
|
|
(a)
|
Net
Interest Expense;
|
|
|
(b)
|
Capital
Expenditure incurred by the European Group during the Review
Period;
|
|
|
(c)
|
all
scheduled repayments of principal under the terms of any external
borrowings of the European Group falling due during the Review Period,
excluding repayments of principal of any borrowings from affiliates of any
member of the European Group falling due in the Review Period and
excluding repayments pursuant to the Facilities;
and
|
|
|
(d)
|
all
cash distributions, dividends and other permitted returns of capital paid
during the Review Period but excluding any repatriation of funds (by loans
or any other means) directly or indirectly to Milacron Inc. or any of its
non-European subsidiaries and excluding any distributions or cash payments
made in the ordinary course of business pursuant to contractual
obligations.
|
“U.S. Facility Documentation”
means the Parent Credit Agreement and the Parent Indenture.
“U.S. GAAP” means generally
accepted accounting principles in the United States applied from time to
time.
“Working Day” means a day
(other than a Saturday or a Sunday) on which commercial banks are open for
general business in Amsterdam, Frankfurt, Brussels and London.
15
SCHEDULE 4
FORM
OF COMPLIANCE CERTIFICATE
To: The
Lenders
From: Milacron
B.V.
Dated:
Dear
Sirs
Asset
Based Finance Agreement dated [·] March 2008 (the “ABFA”) :
Financial Covenants etc.
|
1
|
We
refer to the ABFA. This is a compliance
certificate. Terms defined in the ABFA have the same meaning in
this compliance certificate.
|
|
1
|
We
confirm that, based on the information attached to this certificate, which
we hereby certify to be true, complete and
accurate:
|
|
|
●
|
The
Fixed Charge Coverage ratio set out in Schedule 2, Condition 2.1 of the
ABFA is at a minimum of 1:1; and
|
|
|
●
|
We
confirm that no Termination Event is continuing under the Financing
Documents.
|
| Signed: | ……………………………. |
| | |
| | Director of Milacron
B.V. |
16
SCHEDULE 5
FORM
OF WORKED EXAMPLE FOR FIXED CHARGE COVERAGE COVENANT
17
This
Agreement has been duly executed and signed by the representatives of the
parties as set out below.
|
LLOYDS
TSB BANK PLC,
|
|
NETHERLANDS
BRANCH
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇
▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Head
of Finance, Northern Europe
|
)
|
Authorised
signatory
|
|
|
|
)
|
|
|
and
by
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ van der Meer
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ van der Meer
|
|
|
Manager
Loans & Legal
|
)
|
Authorised
signatory
|
|
|
Consultant
|
|
|
|
|
|
|
|
|
LLOYDS
TSB BANK PLC,
|
|
BELGIUM
BRANCH
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
Baudouin
▇▇▇▇▇▇▇▇
|
)
|
/s/
Baudouin ▇▇▇▇▇▇▇▇
|
|
|
Manager,
Finance and Loans
|
)
|
Authorised
signatory
|
|
|
Administration
Department
|
)
|
|
| | | | |
|
and
by
|
▇▇▇
▇▇▇▇▇▇▇▇▇
|
)
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Manager,
Wholesale Banking
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
LLOYDS
TSB COMMERCIAL FINANCE LIMITED,
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇
▇▇▇▇▇
|
)
|
/s/
▇▇▇▇ ▇▇▇▇▇
|
|
|
Permanent
Representative
|
)
|
Authorised
signatory
|
|
|
|
)
|
|
|
and
by
|
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Permanent
Representative
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
CIMCOOL
EUROPE B.V.
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇
▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Proxyholder
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
CIMCOOL
INDUSTRIAL PRODUCTS B.V.
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇
▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Proxyholder
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18
|
D-M-E
EUROPE CVBA
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Managing
Director
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FERROMATIK
MILACRON MACHINENBAU
|
)
|
|
|
GMBH
|
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
Guy
Moillet
|
)
|
/s/
Guy Moillet
|
|
|
Managing
Director
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MILACRON
KUNSTSTOFFMASCHINEN
|
)
|
|
|
EUROPA
GMBH
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Managing
Director
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
MILACRON
B.V.
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Managing
Director
|
)
|
Authorised
signatory
|
|
|
|
|
|
|
|
|
|
|
|
MILACRON
NETHERLANDS B.V.
|
)
|
|
|
|
|
)
|
|
|
acting
by
|
▇▇▇▇
▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Proxyholder
|
)
|
Authorised
signatory
|
|
|
|
|
|
18