Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 1
TO THE
INTERCREDITOR AGREEMENT
Dated as of May
12, 2009
AMENDMENT NO. 1 TO THE
INTERCREDITOR AGREEMENT among DDJ CAPITAL MANAGEMENT, LLC, as agent
under the DIP Term Credit Agreement referred to below and agent
under the DIP Term Notes referred to below (in such capacities, the
“ DIP Term Agent ”), GENERAL ELECTRIC CAPITAL
CORPORATION, as agent under the DIP ABL Credit Agreement referred
to below (the “ DIP ABL Agent ”) and each of the
parties under the heading ‘Credit Parties” set forth on
the signature pages hereto (the “ Credit Parties
”).
PRELIMINARY
STATEMENTS:
(1)
Pursuant to that
certain Senior Secured, Superpriority Debtor-In-Possession Credit
Agreement dated as of March 11, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “
DIP ABL Credit Agreement ”), by and among MILACRON
INC. (the “ Parent ”), each Subsidiary of the
Parent listed as a “Borrower” on the signature pages
thereto (the Parent and such Subsidiaries are collectively referred
to herein as “ DIP ABL Borrowers ” and
individually as a “ DIP ABL Borrower ”), each
other Subsidiary of the Parent listed as a “Credit
Party” on the signature pages thereto, the DIP ABL Agent and
the banks, financial institutions and other lenders party thereto
(the “ DIP ABL Lenders ”), the DIP ABL Lenders
have agreed to make certain loans and other financial
accommodations to or for the benefit of DIP ABL
Borrowers.
(2)
Pursuant to that
certain Senior Secured Superpriority Priming Debtor-In-Possession
Credit Agreement dated as of March 11, 2009 (as amended by
Amendment No. 1 dated as of April 29, 2009 and as may otherwise be
amended, restated, supplemented or otherwise modified from time to
time, the “ DIP Term Credit Agreement ”), among
the Parent, each guarantor party thereto, the banks, financial
institutions and other institutional lenders party thereto from
time to time (the “ DIP Term Lenders ”) and the
DIP Term Agent, the DIP Term Lenders have agreed to make certain
loans and other financial accommodations to or for the benefit of
the Parent.
(3)
In connection with the
transactions contemplated under the DIP Term Credit Agreement and
the DIP ABL Credit Agreement, the DIP Term Agent, the DIP ABL Agent
and the other parties named therein entered into an Intercreditor
Agreement dated as of March 11, 2009 (the “ Intercreditor
Agreement ”; capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the
Intercreditor Agreement) pursuant to which each of the DIP ABL
Agent (on behalf of the DIP ABL Lenders) and the DIP Term Agent (on
behalf of the DIP Term Lenders) and, by their acknowledgment
thereof, the Credit Parties, set forth the relative priority of
Liens (as defined therein) on the Collateral (as defined therein)
and certain other rights, priorities and interests as set forth
therein.
(4)
Pursuant to that
certain Debtor-in-Possession Note Purchase Agreement dated as of
April 29, 2009 (as amended, restated, supplemented or otherwise
modified from time to time, the
NYDOCS02/867884.5
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“ DIP Note
Purchase Agreement ”), among the Parent, the DIP Term
Agent and the other parties named therein, the Parent has agreed to
issue debtor-in-possession term notes (“ DIP Term
Notes ”) to the purchasers named therein (the “
DIP Term Noteholders ”).
(5)
In connection with the
transactions contemplated under the DIP Note Purchase Agreement,
the parties hereto desire to amend the Intercreditor Agreement as
hereinafter set forth.
SECTION 1.
Amendments to
Intercreditor Agreement . The Intercreditor Agreement
is, effective as of the date hereof and subject to the satisfaction
of the conditions precedent set forth in Section 2, hereby
amended in its entirety to read in full as set forth in Annex A
hereto. By execution of this Amendment, the DIP Term Agent,
the DIP ABL Agent and the Credit Parties agree to be bound by the
terms of the Intercreditor Agreement, as amended hereby.
SECTION 2.
Conditions of
Effectiveness . This Amendment is subject
to the provisions of Section 7.4 of the Intercreditor Agreement.
This Amendment shall become effective as of the date first
above written (the “ Amendment Effective Date ”)
when and only when, on or before the Amendment Effective Date each
of the DIP Term Agent, the DIP ABL Agent and the Credit Parties
shall have delivered executed counterparts this Amendment to the
DIP Term Agent.
SECTION 3.
Reference to and
Effect on the Intercreditor Agreement . (a) On and after the
Amendment Effective Date, each reference in the Intercreditor
Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the
Intercreditor Agreement, and each reference in each of the other
Transaction Documents, to “the Intercreditor
Agreement”, “thereunder”, “thereof”
or words of like import referring to the Intercreditor Agreement,
shall mean and be a reference to the Intercreditor Agreement, as
amended by this Amendment.
(b)
The Intercreditor
Agreement, as specifically amended by this Amendment, is and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c)
The execution, delivery
and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy
of any party to the Intercreditor Agreement nor constitute a waiver
of any provision of the Intercreditor Agreement.
SECTION 4.
Avoidance
Actions .
The DIP Term Agent, on behalf of the DIP Term Lenders, hereby
acknowledges and agrees that to the extent the DIP Term Agent, any
DIP Term Lender or their respective Affiliates enter into the Asset
Purchase Agreement (as defined in the DIP Term Credit Agreement),
the DIP Term Agent, the DIP Term Lenders and their respective
Affiliates, as applicable, will not pursue the DIP ABL Agent, the
DIP ABL Lenders or their respective Affiliates, in each case to the
extent parties to any DIP ABL Documents, in connection with any
Avoidance Actions (as defined in the DIP Term Credit Agreement)
thereunder.
SECTION 5.
Costs,
Expenses .
The costs and expenses incurred in connection with the
preparation, execution, delivery and administration, modification
and amendment of this Amendment, and the other instruments and
documents to be delivered hereunder (including, without limitation,
the reasonable fees and expenses of counsel for the DIP Term Agent
and DIP ABL Agent) shall be paid in accordance with the DIP Note
Purchase Agreement and the DIP ABL Credit Agreement, as
applicable.
SECTION 6.
Execution in
Counterparts . This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment
by
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
3
telecopier or other
electronic transmission shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 7.
Credit Party
Acknowledgement . Each DIP ABL Borrower, each
DIP ABL Guarantor, the DIP Term Borrower and each DIP Term
Guarantor hereby acknowledges that it has received a copy of this
Amendment and consents hereto, agrees to recognize all rights
granted hereby (and under the Intercreditor Agreement, as amended)
to the DIP ABL Agent, the DIP ABL Lenders, the DIP Term Agent, and
the DIP Term Lenders and will not do any act or perform any
obligation which is not in accordance with the agreements set forth
in this Agreement. Each DIP ABL Borrower, each DIP ABL
Guarantor, the DIP Term Borrower and each DIP Term Guarantor
further acknowledges and agrees that it is not an intended
beneficiary or third party beneficiary under this Amendment and
each DIP ABL Borrower, each DIP ABL Guarantor, the DIP Term
Borrower and each DIP Term Guarantor consents to the amendments to
the Intercreditor Agreement as effected hereby, and hereby
confirms, acknowledges and agrees that the Intercreditor Agreement,
as amended hereby shall remain in full force and effect.
SECTION 8.
Governing Law . This Amendment shall be governed by, and
construed in accordance with, the laws of the State of
New York.
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
above written.
GENERAL ELECTRIC CAPITAL
CORPORATION , as the DIP ABL
Agent
By: /s/ Thomas Morante
Name:
Thomas Morante
Title: Duly Authorized
Signatory
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
DDJ CAPITAL MANAGEMENT, LLC
, as the DIP Term Agent
By: /s/ David
Breazzano
Name: David Breazzano
Title: President
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
CREDIT
PARTIES
MILACRON
INC.
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
President
CIMCOOL INDUSTRIAL
PRODUCTS INC.
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
President
MILACRON MARKETING
COMPANY
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
President
MILACRON PLASTICS
TECHNOLOGIES GROUP INC.
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
President
D-M-E
COMPANY
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
President
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
MILACRON CAPITAL
HOLDINGS B.V.
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
Power of
Attorney
MILACRON CANADA
LTD.
By: /s/David
E.
Lawrence
Name:
David E.
Lawrence
Title:
Director and Authorized
Person
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
ANNEX A
See
attached.
NYDOCS02/867884
Milacron - Amendment No.
1 to Intercreditor Agreement
EXECUTION VERSION
ANNEX A
INTERCREDITOR
AGREEMENT
BETWEEN GENERAL
ELECTRIC CAPITAL CORPORATION,
AS DIP ABL
AGENT,
AND
DDJ CAPITAL
MANAGEMENT, LLC,
AS DIP TERM
AGENT,
DATED AS OF MARCH 10,
2009
AND AMENDED AS OF
APRIL 29, 2009
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NYDOCS02/867883.5
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
2
Section 1.1
UCC
DEFINITIONS
2
Section 1.2
OTHER
DEFINITIONS
2
Section 1.3
RULES OF
CONSTRUCTION
12
ARTICLE 2
LIEN PRIORITY
12
Section 2.1
AGREEMENT TO
SUBORDINATE
12
Section 2.2
WAIVER OF RIGHT TO
CONTEST LIENS
13
Section 2.3
REMEDIES
STANDSTILL
14
Section 2.4
EXERCISE OF
RIGHTS
15
Section 2.5
NO NEW LIENS
17
ARTICLE 3
ACTIONS OF THE
PARTIES
18
Section 3.1
CERTAIN ACTIONS
PERMITTED
18
Section 3.2
AGENT FOR
PERFECTION
18
Section 3.3
SHARING OF INFORMATION
AND ACCESS
18
Section 3.4
INSURANCE
19
Section 3.5
NO ADDITIONAL RIGHTS FOR
THE CREDIT PARTIES HEREUNDER
19
Section 3.6
ACTIONS UPON
BREACH
19
Section 3.7
INSPECTION RIGHTS AND
INSURANCE
19
ARTICLE 4
APPLICATION OF
PROCEEDS
20
Section 4.1
APPLICATION OF
PROCEEDS
20
Section 4.2
SPECIFIC
PERFORMANCE
22
ARTICLE 5
INTERCREDITOR
ACKNOWLEDGEMENTS AND WAIVERS
22
Section 5.1
NOTICE OF ACCEPTANCE AND
OTHER WAIVERS
22
Section 5.2
MODIFICATIONS TO DIP ABL
DOCUMENTS AND DIP
TERM
DOCUMENTS
23
Section 5.3
REINSTATEMENT AND
CONTINUATION OF AGREEMENT
25
ARTICLE 6
INSOLVENCY
PROCEEDINGS
26
Section 6.1
ASSET SALES
27
Section 6.2
SEPARATE GRANTS OF
SECURITY AND SEPARATE CLASSIFICATION
27
Section 6.3
ENFORCEABILITY
28
Section 6.4
DIP ABL OBLIGATIONS
UNCONDITIONAL
28
Section 6.5
DIP TERM OBLIGATIONS
UNCONDITIONAL
28
ARTICLE 7
MISCELLANEOUS
29
Section 7.1
RIGHTS OF
SUBROGATION
29
Section 7.2
FURTHER
ASSURANCES
29
Section 7.3
REPRESENTATIONS
30
Section 7.4
AMENDMENTS
30
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Section 7.5
ADDRESSES FOR
NOTICES
30
Section 7.6
NO WAIVER,
REMEDIES
31
Section 7.7
CONTINUING AGREEMENT,
TRANSFER OF SECURED OBLIGATIONS
31
Section 7.8
GOVERNING LAW; ENTIRE
AGREEMENT
31
Section 7.9
COUNTERPARTS
31
Section 7.10
NO THIRD PARTY
BENEFICIARIES
31
Section 7.11
HEADINGS
32
Section 7.12
SEVERABILITY
32
Section 7.13
ATTORNEYS
FEES
32
Section 7.14
VENUE; JURY TRIAL
WAIVER
33
Section 7.15
INTERCREDITOR
AGREEMENT
34
Section 7.16
NO WARRANTIES OR
LIABILITY
34
Section 7.17
CONFLICTS
34
Section 7.18
INFORMATION CONCERNING
FINANCIAL CONDITION OF THE CREDIT PARTIES 35
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NYDOCS02/867883.5
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (as amended
as of April 29, 2009 and as may otherwise be amended, restated,
supplemented or otherwise modified from time to time, this “
Agreement ”) is entered into as of March 10, 2009
between GENERAL ELECTRIC CAPITAL CORPORATION, in its capacity as
administrative agent (in such capacity, the “ DIP ABL
Agent ) for the financial institutions party from time to time
to the DIP ABL Credit Agreement referred to below (such financial
institutions, together with their successors, assigns and
transferees, the “ Credit Agreement Lenders ”
and, together with affiliates thereof in their capacity as Bank
Products Affiliates or Hedging Affiliates (in each case, as
hereinafter defined), the “ DIP ABL Lenders ”)
and DDJ CAPITAL MANAGEMENT, LLC, in its capacity as administrative
agent for the financial institutions party from time to time to the
DIP Term Credit Agreement referred to below (the “ DIP
Term Lenders ”) and as agent under the DIP Term Note
Purchase Agreement referred to below (in such capacities, the
“ DIP Term Agent ”) .
RECITALS
A.
Pursuant to that certain Senior Secured,
Super-Priority Debtor-In-Possession Credit Agreement dated as of
March 11, 2009 (as amended, restated, supplemented or otherwise
modified from time to time, the “ DIP ABL Credit
Agreement ”), by and among MILACRON INC. (the “
Parent ”), each Subsidiary of the Parent listed as a
“Borrower” on the signature pages thereto (the Parent
and such Subsidiaries are collectively referred to herein as
“ DIP ABL Borrowers ” and individually as a
“ DIP ABL Borrower ”), each other Subsidiary of
the Parent listed as a “Credit Party” on the signature
pages thereto, the Credit Agreement Lenders and the DIP ABL Agent,
the Credit Agreement Lenders have agreed to make certain loans and
other financial accommodations to or for the benefit of DIP ABL
Borrowers.
B.
Pursuant to certain guaranty agreements
and security agreements dated as of the date hereof (the “
DIP ABL Guaranties ”) by the DIP ABL Guarantors in
favor of the DIP ABL Agent, the DIP ABL Guarantors have agreed to
guarantee the payment and performance of the Borrowers’
obligations under the DIP ABL Documents.
C.
As a condition to the effectiveness of
the DIP ABL Credit Agreement and to secure the obligations of DIP
ABL Borrowers and the DIP ABL Guarantors (DIP ABL Borrowers, the
DIP ABL Guarantors and each other direct or indirect affiliate or
shareholder (or equivalent) of Milacron or any of its affiliates
that is now or hereafter becomes a party to any DIP ABL Document,
collectively, the “ DIP ABL Credit Parties ”)
under and in connection with the DIP ABL Documents, the DIP ABL
Credit Parties have granted to the DIP ABL Agent (for the benefit
of the DIP ABL Lenders including the Bank Products Affiliates and
Hedging Affiliates) Liens on the Collateral.
D.
Pursuant to (a) that certain Senior
Secured Superpriority Priming Debtor-In-Possession Credit Agreement
dated as of March 11, 2009 (as amended by Amendment No. 1 dated as
of April 29, 2009 and as may otherwise be amended, restated,
supplemented or otherwise modified from time to time, the “
DIP Term Credit Agreement ”), among MILACRON INC. (the
“ DIP Term Borrower ”), each guarantor party
thereto, the banks, financial institutions and other institutional
lenders party thereto from time to time (the “ DIP Term
Lenders ”) and (b)
NYDOCS02/867883.5
1
that certain Senior Secured Superpriority
Priming Debtor-in-Possession Note Purchase Agreement dated as of
April 29, 2009 (as amended, supplemented or otherwise modified from
time to time, the “ DIP Term Note Purchase Agreement
” and, together with the DIP Term Credit Agreement, the
“ DIP Term Facility Credit Documents ”) by and
among the DIP Term Borrower, the DIP Term Agent, the other parties
name therein and each holder of DIP Term Notes (as defined below)
thereunder (each a “ DIP Term Noteholder ”), the
DIP Term Agent, the DIP Term Lenders have agreed to make certain
loans and other financial accommodations, and the DIP Term
Noteholders have agreed to purchase DIP Term Notes, in each case,
to or for the benefit of DIP Term Borrower.
E.
Pursuant to certain guaranty agreements
contained in the DIP Term Credit Agreement and the DIP Term Note
Purchase Agreement (together, the “ DIP Term
Guaranties ”) by the DIP Term Guarantors in favor of the
DIP Term Agent, the DIP Term Guarantors have agreed to guarantee
the payment and performance of DIP Term Borrower’ obligations
under the DIP Term Facility Credit Documents.
F.
As a condition to the effectiveness of
the DIP Term Credit Agreement and the DIP Term Note Purchase
Agreement and to secure the obligations of DIP Term Borrower and
the DIP Term Guarantors (DIP Term Borrower, the DIP Term Guarantors
and each other direct or indirect affiliate or shareholder (or
equivalent) of Milacron or any of its affiliates that is now or
hereafter becomes a party to any DIP Term Document, collectively,
the “ DIP Term Credit Parties ”) under and in
connection with the DIP Term Documents, the DIP Term Credit Parties
have granted to the DIP Term Agent (for the benefit of the DIP Term
Lenders and the DIP Term Noteholders) Liens on the
Collateral.
G.
Each of the DIP ABL Agent (on behalf of
the DIP ABL Lenders) and the DIP Term Agent (on behalf of the DIP
Term Secured Parties) and, by their acknowledgment hereof, the
Credit Parties, desire to agree to the relative priority of Liens
on the Collateral and certain other rights, priorities and
interests as provided herein.
NOW THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
1
DEFINITIONS
SECTION
1.1
UCC DEFINITIONS. The following terms
which are defined in the Uniform Commercial Code are used herein as
so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Electronic Chattel Paper, Equipment, Financial Assets, Instruments,
Inventory, Investment Property, Letter-of-Credit Rights, Money,
Payment Intangibles, Promissory Notes, Records, Security,
Securities Accounts, Security Entitlements, Supporting Obligations,
and Tangible Chattel Paper.
SECTION 1.2
OTHER DEFINITIONS. As used in this
Agreement, the following terms shall have the meanings set forth
below:
NYDOCS02/867883.5
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“ Affiliate ” shall
mean (a) any Person controlling, controlled by or under common
control with any other Person, (b) with respect to any Person, any
other Person who is an officer, director, managing member, partner,
trustee or beneficiary of such Person, and (c) any Person who is a
spouse, sibling, parent, grandparent, child or grandchild of a
Person described in clauses (a) or (b) preceding. For purposes of
this definition, “control” (including “controlled
by” and “under common control with”) shall mean
the possession, directly or indirectly, of the power to either (a)
vote 10% or more of the voting securities of such Person or (b)
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
“ Agreement ” shall
mean this Intercreditor Agreement.
“ Asset Sale Proceeds
Account ” shall mean a segregated deposit account under
the sole control of the DIP Term Agent which contains only proceeds
from the sale of DIP Term Priority Collateral and any interest
earned thereon.
“ Bank Products Affiliate
” shall mean any Affiliate of any Credit Agreement Lender
that has entered into a Bank Products Agreement with a DIP ABL
Credit Party with the obligations of such DIP ABL Credit Party
thereunder being secured by one or more DIP ABL Collateral
Documents.
“ Bank Products Agreement
” shall mean any agreement pursuant to which a bank or other
financial institution agrees to provide treasury management
services (including, without limitation, controlled disbursement,
automated clearinghouse transactions, return items, overdrafts and
interstate depository network services).
“ Bankruptcy Code ”
shall mean title 11 of the United States Code.
“ Capital Stock ”
shall mean (a) in the case of a corporation, corporate stock, (b)
in the case of an association, any and all shares, interests,
participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether
general or limited), and (d) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of property of, the issuing
Person.
“ Cash Collateral ”
shall mean any Collateral consisting of Money or cash equivalents,
any Security Entitlement and any Financial Assets.
“ Cash Equivalents ”
shall mean (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 Investors Service, Inc. and any successor thereto
(“ Moody’s ”) or A-1 by Standard &
Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto (“ 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
NYDOCS02/867883.5
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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.
“ Collateral ” shall
mean all Property now owned or hereafter acquired by any DIP ABL
Borrower, any DIP ABL Guarantor, the DIP Term Borrower or any DIP
Term Guarantor in or upon which a Lien is granted or purported to
be granted to the DIP ABL Agent or the DIP Term Agent under any of
the DIP ABL Collateral Documents or the DIP Term Collateral
Documents, together with all rents, issues, profits, products, and
Proceeds thereof.
“ Control Collateral ”
shall mean any Collateral consisting of any Certificated Security,
Investment Property, Deposit Account, and any other Collateral as
to which a Lien may be perfected through possession or control by
the secured party, or any agent therefor.
“ Copyright Licenses ”
shall mean any and all agreements, whether written or oral,
providing for the grant by or to any Credit Party of any right
under any Copyright, including, without limitation, the grant of
rights to manufacture, distribute, exploit and sell materials
derived from any Copyright.
“ Copyrights ” shall
mean (i) any and all other copyrights, in the United States or any
other country, whether registered or unregistered, or published or
unpublished, all registrations and recordings thereof and all
applications in connection therewith, and (ii) the right to obtain
all renewals of the foregoing.
“ Credit Agreement Lenders
” shall have the meaning assigned to that term in the
introduction to this Agreement.
“ Credit Documents ”
shall mean the DIP ABL Documents and the DIP Term
Documents.
“ Credit Parties ”
shall mean the DIP ABL Credit Parties and the DIP Term Credit
Parties.
“ Debtor Relief Laws ”
shall mean the Bankruptcy Code, the Bankruptcy and Insolvency Act
(Canada), the Companies’ Creditors Arrangement Act (Canada)
and all other liquidation, conservatorship, bankruptcy, assignment
for benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief laws of the
United States or Canada or other applicable jurisdictions from time
to time in effect affecting the rights of creditors
generally.
“ DIP ABL Agent ”
shall have the meaning assigned to that term in the introduction to
this Agreement and shall include any successor thereto as well as
any Person designated as the “Agent” under any DIP ABL
Credit Agreement.
NYDOCS02/867883.5
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“ DIP ABL Collateral
Documents ” shall mean all “Security
Agreements” as defined in the DIP ABL Credit Agreement, and
all other security agreements, mortgages, deeds of trust and other
collateral documents executed and delivered in connection with any
DIP ABL Credit Agreement.
“ DIP ABL Credit Agreement
” shall mean the DIP ABL Credit Agreement (as such term is
defined in the recitals to this Agreement) and any other agreement
extending the maturity of, consolidating, restructuring, refunding,
replacing or refinancing all or any portion of the DIP ABL
Obligations, whether by the same or any other agent, lender or
group of lenders and whether or not increasing the amount of any
Indebtedness that may be incurred thereunder.
“ DIP ABL Credit Parties
” shall have the meaning assigned to that term in the
recitals to this Agreement.
“ DIP ABL Documents ”
shall mean the DIP ABL Credit Agreement, the DIP ABL Guaranties,
the DIP ABL Collateral Documents, the Bank Product Agreements, the
Hedging Agreements, those other ancillary agreements as to which
the DIP ABL Agent or any DIP ABL Lender (including any Bank
Products Affiliate and any Hedging Affiliate) is a party or a
beneficiary and all other agreements, instruments, documents and
certificates, now or hereafter executed by or on behalf of any DIP
ABL Credit Party or any of its respective Subsidiaries or
Affiliates, and delivered to the DIP ABL Agent, in connection with
any of the foregoing or any DIP ABL Credit Agreement.
“ DIP ABL Guaranties ”
shall have the meaning assigned to that term in the recitals to
this Agreement.
“ DIP ABL Guarantors ”
shall mean each subsidiary of Milacron listed on Schedule B
hereto as an “DIP ABL Guarantor” and any other Person
who becomes a guarantor under any of the DIP ABL
Guaranties.
“ DIP ABL Lenders ”
shall have the meaning assigned to that term in the introduction to
this Agreement and shall include all Bank Product Affiliates and
Hedging Affiliates and all successors, assigns, transferees and
replacements thereof, as well as any Person designated as a
“Lender” under any DIP ABL Credit Agreement.
“ DIP ABL Obligations
” shall mean all of the “Obligations” as defined
in the DIP ABL Credit Agreement, and all other amounts owing or due
under the terms of the DIP ABL Documents, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time. This term includes, without limitation, all
interest, fees, charges, expenses, attorneys’ fees and any
other sum chargeable to any DIP ABL Credit Party under any of the
DIP ABL Documents and shall also include, without limitation, all
amounts that would become due and interest, fees and charges that
would accrue but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code or any other provision of the
Bankruptcy Code or any similar provision of any other applicable
Debtor Relief Laws.
“ DIP ABL Priority
Collateral ” shall mean all Collateral consisting of the
following:
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(1)
all Accounts and Receivables;
(2)
all Chattel Paper (including Tangible
Chattel Paper and Electronic Chattel Paper);
(3)
(x) all Deposit Accounts (except for the
DIP Term Loan Account (as defined in the DIP ABL Credit Agreement))
and Money and all cash, checks, other negotiable instruments, funds
and other evidences of payments held therein and (y) all
Securities, Security Entitlements, and Securities Accounts, in each
case, to the extent constituting cash or Cash Equivalents or
representing a claim to Cash Equivalents, except, in each case, for
(a) any Asset Sale Proceeds Account and all deposits and other
funds held therein and (b) any Deposit Account or Money and all
cash, checks, other negotiable instruments, funds and other
evidences of payments held therein or any Securities Account and
all cash and Cash Equivalents held therein, in each case, that
constitute identifiable proceeds of DIP Term Priority Collateral
and all deposits and other funds held therein, but in any event and
regardless of the foregoing clauses (a), (b) and (c), including the
accounts listed on Schedule A hereto;
(4)
all Inventory;
(5)
to the extent involving or governing any
of the items referred to in the preceding clauses (1) through (4),
all Documents, General Intangibles, Instruments (including, without
limitation, Promissory Notes), and Letter of Credit Rights;
provided that to the extent any of the foregoing also relates to
DIP Term Priority Collateral, only that portion related to the
items referred to in the preceding clauses (1) through (4) shall be
included in the DIP ABL Priority Collateral; provided further that
for the avoidance of doubt, all Avoidance Actions (as defined in
the DIP Term Credit Agreement) shall be included only in the DIP
Term Priority Collateral and shall not be included in the DIP ABL
Priority Collateral;
(6)
to the extent evidencing or governing any
of the items referred to in the preceding clauses (1) through (5),
all Supporting Obligations; provided that to the extent any
of the foregoing also relates to DIP Term Priority Collateral only
that portion related to the items referred to in the preceding
clauses (1) through (5) shall be included in the DIP ABL Priority
Collateral;
(7)
all books and Records relating to the
foregoing (including without limitation all books, databases,
customer lists, engineer drawings, and Records, whether tangible or
electronic which contain any information relating to any of the
foregoing);
(8)
all Proceeds of any of the foregoing
(including without limitation, all insurance proceeds) and all
collateral security and guarantees given by any Person with respect
to any of the foregoing;
provided , however , that any Collateral, regardless of
type, received in connection with a permitted disposition of or
otherwise in exchange for DIP ABL Priority Collateral pursuant to
the terms of the DIP ABL Credit Agreement shall be treated as DIP
ABL Priority Collateral under this Agreement; and provided,
further, that any Collateral regardless of type received in
connection with a permitted disposition of or otherwise in exchange
for DIP Term Priority Collateral pursuant to the terms of the DIP
Term Credit Agreement, shall be treated as DIP Term Priority
Collateral under this Agreement.
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“ DIP ABL Secured Parties
” shall mean the DIP ABL Agent and the DIP ABL
Lenders.
“ DIP Term Agent ”
shall have the meaning assigned to that term in the introduction to
this Agreement and shall include any successor trustee or
collateral agent appointed under the DIP Term Credit Agreement, the
DIP Term Collateral Documents, the DIP Term Note Purchase Agreement
and any agent of any of the foregoing.
“ DIP Term Collateral
Documents ” shall mean all “Collateral
Documents” as defined in the DIP Term Credit Agreement, and
all other security agreements, mortgages, deeds of trust and other
collateral documents executed and delivered in connection with the
DIP Term Facility Credit Documents.
“ DIP Term Credit Agreement
” shall mean the DIP Term Credit Agreement (as such term is
defined in the recitals to this Agreement) and any other agreement
extending the maturity of, consolidating, restructuring, refunding,
replacing or refinancing all or any portion of the DIP Term Loan
Obligations, whether by the same or any other agent, lender or
group of lenders and whether or not increasing the amount of any
Indebtedness that may be incurred thereunder.
“ DIP Term Credit Parties
” shall have the meaning assigned to that term in the
recitals to this Agreement.
“ DIP Term Documents ”
shall mean the DIP Term Credit Agreement, the DIP Term Guaranties,
the DIP Term Collateral Documents, the DIP Term Note Purchase
Agreement and those other ancillary agreements as to which the DIP
Term Agent, any DIP Term Lender or DIP Term Noteholder is a
party or a beneficiary and all other agreements, instruments,
documents and certificates, now or hereafter executed by or on
behalf of any DIP Term Credit Party or any of its respective
Subsidiaries or Affiliates, and delivered to the DIP Term Agent, in
connection with any of the foregoing or the DIP Term Credit
Agreement or the DIP Term Note Purchase Agreement.
“ DIP Term Facility Credit
Documents ” shall have the meaning assigned to that term
in the recitals to this Agreement.
“ DIP Term Guarantors
” shall mean each subsidiary of Milacron listed on
Schedule B hereto as a “DIP Term Guarantor” and
any other Person who becomes a guarantor under the DIP Term
Facility Credit Documents.
“ DIP Term Lender
” shall have the meaning assigned to that term in the
introduction to this Agreement and shall include each successor and
assign thereof.
“ DIP Term Loan Obligations
” means the “Obligations” as defined in the DIP
Term Credit Agreement.
“ DIP Term Note Purchase
Agreement ” shall mean the DIP Term Note Purchase
Agreement (as such term is defined in the recitals to this
Agreement) and any other agreement extending the maturity of,
consolidating, restructuring, refunding, replacing or refinancing
all or
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any portion of the DIP Term Notes
Obligations, whether by the same or any other agent, lender or
group of lenders and whether or not increasing the amount of any
Indebtedness that may be incurred thereunder.
“ DIP Term Noteholder
” shall have the meaning assigned to that term in the
recitals to this Agreement.
“ DIP Term Notes ”
means each “DIP Term Note” as defined in the DIP Term
Note Purchase Agreement.
“ DIP Term Notes Obligations
” means the obligations of the DIP Term Borrower and the DIP
Term Guarantors to pay principal, interest and other amounts owing
by the DIP Term Borrower and the DIP Term Guarantors to the DIP
Term Noteholders and the DIP Term Agent under the DIP Term Note
Purchase Agreement.
“ DIP Term Obligations
” shall mean collectively, (a) the DIP Term Loan Obligations,
(b) the DIP Term Notes Obligations and (c) all other amounts owing
or due under the terms of the DIP Term Documents, as amended,
restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time. This term includes, without
limitation, all interest, fees, charges, expenses, attorneys’
fees and any other sum chargeable to any DIP Term Credit Party
under any of the DIP Term Documents and shall also include, without
limitation, all amounts that would become due and interest, fees
and charges that would accrue but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code or any
other provision of the Bankruptcy Code or any similar provision of
any other applicable Debtor Relief Laws.
“ DIP Term Priority
Collateral ” shall mean all Collateral, including,
without limitation, the DIP Term Loan Account (as defined in the
DIP ABL Credit Agreement), other than the DIP ABL Priority
Collateral; provided , however , that any Collateral,
regardless of type, received in connection with a permitted
disposition of or otherwise in exchange for DIP Term Priority
Collateral pursuant to the terms of the DIP Term Loan Agreement
shall be treated as DIP Term Priority Collateral under this
Agreement; provided , further , that any Collateral
regardless of type received in connection with a permitted
disposition of or otherwise in exchange for DIP ABL Priority
Collateral pursuant to the terms of the Credit Agreement, shall be
treated as DIP ABL Priority Collateral under this
Agreement.
“ DIP Term Secured
Parties ” shall mean the DIP Term Agent, the DIP Term
Lenders and the DIP Term Noteholders.
“ Discharge of DIP ABL
Obligations ” shall mean (a) the payment in full of the
DIP ABL Obligations that are outstanding and unpaid at the time all
indebtedness thereunder is paid in full including, with respect to
amounts available to be drawn under outstanding letters of credit
issued thereunder (or indemnities or other undertakings issued
pursuant thereto in respect of outstanding letters of credit)
delivery of Money or backstop letters of credit in respect thereof
in compliance with the terms of any DIP ABL Credit Agreement (which
shall not exceed an amount equal to 105% of the aggregate undrawn
amount of such letters of credit), (b) the termination of all
commitments to extend credit under the DIP ABL Documents, and (c)
the
NYDOCS02/867883.5
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delivery by the DIP ABL Agent of a
written notice to the DIP Term Agent stating that the events
described in clauses (a) and (b) have occurred to the satisfaction
of the DIP ABL Secured Parties.
“ Discharge of DIP Term
Obligations ” shall mean (a) the payment in full of the
DIP Term Obligations that are outstanding and unpaid at the time
the DIP Term Facility Credit Documents are paid in full, (b) the
termination of all commitments to extend credit or purchase DIP
Term Notes under the DIP Term Documents and (c) the delivery by the
DIP Term Agent of a written notice to the DIP ABL Agent stating
that the events described in clause (a) have occurred to the
satisfaction of the DIP Term Secured Parties.
“ Event of Default ”
shall mean an Event of Default under any DIP ABL Credit Agreement
or the DIP Term Facility Credit Documents.
“ Exercise Any Secured Creditor
Remedies ” or “ Exercise of Secured Creditor
Remedies ” shall mean:
(a)
the taking of any action to enforce or
realize upon any Lien, including the institution of any foreclosure
proceedings or the noticing of any public or private sale pursuant
to article 9 of the Uniform Commercial Code;
(b)
the exercise of any right or remedy
provided to a secured creditor on account of a Lien under any of
the Credit Documents, under applicable law, in an Insolvency
Proceeding or otherwise, including the election to retain any of
the Collateral in satisfaction of a Lien;
(c)
the taking of any action or the exercise
of any right or remedy in respect of the collection on, set off
against, marshaling of, or foreclosure on the Collateral or the
Proceeds thereof;
(d)
the appointment of a receiver, receiver
and manager or interim receiver of all or part of the
Collateral;
(e)
the sale, lease, license, or other
disposition of all or any portion of the Collateral by private or
public sale or any other means permissible under applicable
law;
(f)
the exercise of any other right of a
secured creditor under Part 6 of Article 9 of the Uniform
Commercial Code;
(g)
the exercise of any voting rights
relating to any Capital Stock included in the Collateral;
and
(h)
the delivery of any notice, claim or
demand relating to the Collateral to any Person (including any
securities intermediary, depository bank or landlord) in possession
or control of any Collateral.
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9
For avoidance of doubt, filing a proof of
claim in bankruptcy court or seeking adequate protection (or any
similar action in any foreign jurisdiction) shall not be deemed to
be an Exercise of Secured Creditor Remedies.
“ Existing Intercreditor
Agreement ” shall mean that certain Intercreditor
Agreement dated as of June 10, 2004 by and among JPMorgan Chase
Bank, Parent and U.S. Bank National Association, as trustee, as
amended by that certain Supplement No. 1 to Intercreditor
Agreement, dated as of the Closing Date, between JPMorgan Chase
Bank, N.A. (f/k/a JPMorgan Chase Bank), in its capacity as
Departing ABL Agent, on behalf of itself and the Departing ABL
Lenders (as defined therein), General Electric Capital Corporation,
in its capacity as New ABL Agent, on behalf of itself and the New
ABL Lenders (as defined therein), and U.S. Bank National
Association, as trustee.
“ General Intangibles
” shall mean all “general intangibles” as such
term is defined in the Uniform Commercial Code including, without
limitation, with respect to any Credit Party, all contracts,
agreements, instruments and indentures in any form, and portions
thereof, to which such Credit Party is a party or under which such
Credit Party has any right, title or interest or to which such
Credit Party or any property of such Credit Party is subject, as
the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation (but limited as
aforesaid), (i) all rights of such Credit Party to receive moneys
due and to become due to it thereunder or in connection therewith,
(ii) all rights of such Credit Party to damages arising thereunder,
(iii) all equity that constitutes “general intangibles”
and (iv) all rights of such Credit Party to perform and to exercise
all remedies thereunder.
“ Guarantor ” shall
mean any of the DIP ABL Guarantors or the DIP Term
Guarantors.
“ Hedging Affiliate ”
shall mean any Affiliate of any Credit Agreement Lender that has
entered into a Hedging Agreement with an DIP ABL Credit Party with
the obligations of such DIP ABL Credit Party thereunder being
secured by one or more DIP ABL Collateral Documents.
“ Hedging Agreement ”
shall mean 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.
“ Insolvency Proceeding
” shall mean (a) any case, action or proceeding before any
court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for
the benefit of creditors, composition, marshalling of assets for
creditors or other similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case
covered by clauses (a) and (b) undertaken under United States
Federal, State or foreign law, including the Bankruptcy Code, the
Bankruptcy and Insolvency Act (Canada) and the Companies’
Creditors Arrangement Act (Canada).
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“ Intellectual Property
” shall mean all rights, priorities and privileges provided
under United States, multinational and foreign law relating to
intellectual property, including without limitation, all
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trade
Secrets, Trade Secret Licenses, Trademarks and Trademark Licenses,
and all rights to sue at law or in equity for any infringement or
other impairment thereof, including the right to receive all
proceeds and damages therefrom.
“ Lien ” shall mean
any interest in Property securing an obligation owed to, or a claim
by, a Person other than the owner of the Property, whether such
interest is based on contract, constitutional, common, or statutory
law, and including but not limited to the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or
bailment for security purposes or in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities. The term “Lien” shall
include reservations, exceptions, encroachments, easements, rights
of way, covenants, conditions, restrictions, liens and other
statutory, constitutional, or common law rights of landlords,
leases and other title exceptions and encumbrances affecting
Property.
“ Lien Priority ”
shall mean with respect to any Lien of the DIP ABL Agent or the DIP
Term Agent in the Collateral, the order of priority of such Lien as
specified in Section 2.1 .
“ Party ” shall mean
the DIP ABL Agent or the DIP Term Agent, and “Parties”
shall mean both the DIP ABL Agent and the DIP Term
Agent.
“ Patent License ”
shall mean any and all agreements, whether written or oral,
providing for the grant by or to any Credit Party of any right to
manufacture, use or sell any invention covered in whole or in part
by a Patent to the extent that a grant of a security interest in
such patent license is not prohibited by applicable law or the
applicable patent agreement.
“ Patents ” shall mean
(i) all letters patent of the United States or any other country
and all reissues and extensions thereof, (ii) all applications for
letters patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, and
(iii) all rights to obtain any reissues or extensions of the
foregoing.
“ Payment Collateral ”
shall mean all Accounts, Instruments, Chattel Paper,
Letter-Of-Credit Rights, Deposit Accounts (other than the Deposit
Accounts which constitute DIP Term Priority Collateral), Securities
Accounts, and Payment Intangibles, together with all Supporting
Obligations, in each case composing a portion of the
Collateral.
“ Person ” shall mean
any natural person, corporation, limited liability company,
unlimited liability company, limited partnership, general
partnership, limited liability partnership, joint venture, trust,
land trust, business trust, or other organization, irrespective of
whether such organization is a legal entity, and shall include a
government and any agency or political subdivision
thereof.
“ Priority Collateral
” shall mean the DIP ABL Priority Collateral or the DIP Term
Priority Collateral.
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“ Proceeds ” shall
mean (a) all “proceeds,” as defined in Article 9 of the
Uniform Commercial Code, with respect to the Collateral, and (b)
whatever is recoverable or recovered when any Collateral is sold,
exchanged, collected, or disposed of, whether voluntarily or
involuntarily.
“ Property ” shall
mean any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
“ Real Property ”
shall mean any right, title or interest in and to real property,
including any fee interest, leasehold interest, easement, or
license and any other right to use or occupy real property,
including any right arising by contract.
“ Receivable ” shall
mean any right to payment for goods sold or leased or for services
rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any
Account).
“ Recovery ” shall
have the meaning set forth in Section 5.3 .
“ Secured Parties ”
shall mean the DIP ABL Secured Parties or the DIP Term Secured
Parties.
“ Subsidiary ”
of any Person shall mean a corporation, limited liability company,
partnership or other entity of which a majority of the outstanding
shares of stock of each class having ordinary voting power or other
equity interests is owned by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of
its Subsidiaries.
“ Trade Secret
Licenses ” shall mean any and all agreements, whether
written or oral, providing for the grant by or to any Credit Party
of any right in or to Trade Secrets, to the extent that a grant of
a security interest in such Trade Secret License is not prohibited
by applicable law or the applicable Trade Secret
License.
“ Trade Secrets ”
shall mean all trade secrets and all other confidential or
proprietary information and know-how whether or not such trade
secret has been reduced to a writing or other tangible form,
including all documents and things embodying, incorporating, or
referring in any way to such trade secret, including but not
limited to: (a) the right to sue for past, present and future
misappropriation or other violation of any trade secret, and (b)
all Proceeds of the foregoing, including, without limitation,
licenses, royalties, income, payments, claims, damages, and
proceeds of suit.
“ Trademark License ”
shall mean any and all agreements, whether written or oral,
providing for the grant by or to any Credit Party of any right to
use any Trademark, to the extent that a grant of a security
interest in such Trademark License is not prohibited by applicable
law or the applicable Trademark License.
“ Trademarks ” shall
mean (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and
all applications in
NYDOCS02/867883.5
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connection therewith, whether in the
United States Patent and Trademark Office or in any similar office
or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all
common-law rights related thereto, and (b) the right to obtain all
renewals thereof.
“ Uniform Commercial Code
” shall mean the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of New York;
provided that to the extent that the Uniform Commercial Code
is used to define any term in any security document and such term
is defined differently in differing Articles of the Uniform
Commercial Code, the definition of such term contained in Article 9
shall govern; provided , further , that in the event
that, by reason of mandatory provisions of law, any or all of the
attachment, perfection, publication or priority of, or remedies
with respect to, Liens of any Party is governed by the Uniform
Commercial Code or foreign personal property security laws as
enacted and in effect in a jurisdiction other than the State of New
York, the term “Uniform Commercial Code” will mean the
Uniform Commercial Code or such foreign personal property security
laws as enacted and in effect in such other jurisdiction solely for
purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions
related to such provisions.
SECTION
1.3
RULES OF CONSTRUCTION. Unless the context
of this Agreem
