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EXHIBIT 10.48
FINANCING AGREEMENT
DATED AS OF MARCH 12, 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
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS; CERTAIN
TERMS............................................................................
1
Section 1.01
Definitions..................................................................
1
Section 1.02
Terms
Generally..............................................................
34
Section 1.03
Accounting and Other
Terms...................................................
34
Section 1.04
Time
References..............................................................
35
ARTICLE II. THE
LOANS............................................................................................
35
Section 2.01
Commitments..................................................................
35
Section 2.02
Making the
Loans.............................................................
36
Section 2.03
Repayment of Loans; Evidence of
Debt.........................................
36
Section 2.04
Interest.....................................................................
37
Section 2.05
Reduction of Commitment; Prepayment of
Loans.................................
38
Section 2.06
Fees.........................................................................
44
Section 2.07
Securitization...............................................................
45
Section 2.08
Taxes........................................................................
45
Section 2.09
LIBOR Not Determinable; Illegality or
Impropriety............................
47
Section 2.10
Indemnity....................................................................
48
Section 2.11
Continuation and Conversion of
Loans.........................................
49
ARTICLE III. LETTER OF CREDIT
ACCOMMODATIONS AND OTHER
MATTERS...................................................
50
Section 3.01
Letter of Credit
Accommodations..............................................
50
Section 3.02
Collection of
Accounts.......................................................
55
Section 3.03
Payments.....................................................................
55
Section 3.04
Settlement
Procedures........................................................
55
ARTICLE IV. FEES, PAYMENTS AND OTHER
COMPENSATION................................................................
58
Section 4.01
Audit and Collateral Monitoring
Fees.........................................
58
Section 4.02
Payments; Computations and
Statements........................................
58
Section 4.03
Sharing of Payments,
Etc.....................................................
59
Section 4.04
Apportionment of
Payments....................................................
60
Section 4.05
Increased Costs and Reduced
Return...........................................
61
Section 4.06
Joint and Several Liability of the
Borrowers.................................
63
ARTICLE V. CONDITIONS TO
LOANS...................................................................................
64
Section 5.01
Conditions Precedent to
Effectiveness........................................
64
Section 5.02
Conditions Precedent to All Loans and Letter of Credit
Accommodations...............................................................
69
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ARTICLE VI. REPRESENTATIONS AND
WARRANTIES.......................................................................
70
Section 6.01
Representations and
Warranties...............................................
70
ARTICLE VII. COVENANTS OF THE LOAN
PARTIES.......................................................................
80
Section 7.01
Affirmative
Covenants........................................................
80
Section 7.02
Negative
Covenants...........................................................
91
Section 7.03
Financial
Covenants.........................................................
99
ARTICLE VIII. MANAGEMENT, COLLECTION AND
STATUS OF ACCOUNTS RECEIVABLE AND OTHER
COLLATERAL.....................
100
Section 8.01
Collection of Accounts; Management of
Collateral............................
100
Section 8.02
Accounts
Documentation......................................................
103
Section 8.03
Status of Accounts and Other
Collateral.....................................
103
Section 8.04
Collateral
Custodian........................................................
104
Section 8.05
Collateral
Reporting........................................................
104
Section 8.06
Accounts
Covenants..........................................................
105
Section 8.07
Inventory
Covenants.........................................................
106
ARTICLE IX. EVENTS OF
DEFAULT...................................................................................
107
Section 9.01
Events of
Default...........................................................
107
ARTICLE X.
AGENT................................................................................................
111
Section 10.01
Appointment.................................................................
111
Section 10.02
Nature of
Duties............................................................
111
Section 10.03
Rights, Exculpation,
Etc....................................................
112
Section 10.04
Reliance....................................................................
113
Section 10.05
Indemnification.............................................................
113
Section 10.06
Agent
Individually..........................................................
114
Section 10.07
Successor Agent.
(a).......................................................
114
Section 10.08
Collateral
Matters..........................................................
114
Section 10.09
Agency for
Perfection.......................................................
116
ARTICLE XI.
GUARANTY............................................................................................
116
Section 11.01
Guaranty....................................................................
116
Section 11.02
Guaranty
Absolute...........................................................
117
Section 11.03
Waiver......................................................................
118
Section 11.04
Continuing Guaranty;
Assignments............................................
118
Section 11.05
Subrogation.................................................................
118
Section 11.06
Judgment....................................................................
119
Section 11.07
Subordination and Intercreditor
Agreement...................................
119
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ARTICLE XII.
MISCELLANEOUS......................................................................................
119
Section 12.01
Notices,
Etc................................................................
120
Section 12.02
Amendments,
Etc.............................................................
121
Section 12.03
No Waiver; Remedies,
Etc....................................................
121
Section 12.04
Expenses; Taxes; Attorneys'
Fees............................................
121
Section 12.05
Right of
Set-off............................................................
122
Section 12.06
Severability................................................................
123
Section 12.07
Assignments and
Participations..............................................
123
Section 12.08
Counterparts................................................................
125
Section 12.09
GOVERNING
LAW...............................................................
125
Section 12.10
CONSENT TO JURISDICTION; SERVICE OF PROCESS AND
VENUE.......................
125
Section 12.11
WAIVER OF JURY TRIAL,
ETC...................................................
126
Section 12.12
Consent by the Agent and
Lenders............................................
126
Section 12.13
No Party Deemed
Drafter.....................................................
127
Section 12.14
Reinstatement; Certain
Payments.............................................
127
Section
12.15
Indemnification.............................................................
127
Section 12.16
Parent as Agent for
Borrowers...............................................
129
Section 12.17
Records.....................................................................
129
Section 12.18
Binding
Effect..............................................................
130
Section 12.19
Interest....................................................................
130
Section 12.20
Confidentiality.............................................................
131
Section 12.21
Integration.................................................................
131
Section 12.22
Replacement of
Lenders......................................................
132
Section 12.23
Dutch Parallel
Debt.........................................................
132
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SCHEDULE AND EXHIBITS
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Schedule 1.01(A)
Lenders and Lenders' Commitments
Schedule 1.01(B)
Initial Inventory Categories
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 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
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iv
<PAGE>
FINANCING AGREEMENT
Financing Agreement, dated as of March 12, 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,
and, in either or both such capacities, the
"Agent").
RECITALS
The Borrowers have asked the Lenders to extend credit to the
Borrowers consisting of a $65,000,000
secured revolving credit facility and a
$75,000,000 secured term loan facility. The
revolving credit facility will
include a $25,000,000 subfacility for the
issuance of letters of credit. The
proceeds of the loans made under the credit
facilities shall be 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 this Agreement. The letters of
credit will be used for general
corporate and working capital purposes. The
Lenders are severally, and not
jointly, willing to extend such credit to
the Borrowers subject to the terms and
conditions hereinafter set forth.
In consideration of the premises and the covenants and
agreements contained herein, the parties
hereto agree 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 any guarantee contemplated by the
Mizuho/Glencore Transaction Documents or an
unsecured guaranty made by any Loan
Party in favor of any of the holders of any
New US Securities or New Euro
Securities which guaranty is (i) unless
otherwise agreed to by the Agent,
subordinated in right of payment to all of
the Obligations on terms and
conditions reasonably satisfactory to the
Agent and (ii) on other terms and
conditions reasonably satisfactory to the
Agent.
"Account Debtor" means each debtor, customer or obligor in any
way obligated on or in connection with any
Account.
<PAGE>
"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.
"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 Agent 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" has the meaning specified therefor in the preamble
hereto.
"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 ordinary course of its
business and is managed by the same
investment advisor as such Lender or by an
Affiliate of such investment advisor.
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"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 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 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 Agent after
consulting with the Borrowers (which
appraisals by such other appraiser will be
on a basis consistent with the
appraisals conducted by Hilco), and (ii)
market value, in each case, determined
in accordance with GAAP calculated on a
first-in first-out basis.
3
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"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 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).
"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
4
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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.
"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
5
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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).
"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 an account of the Loan Parties
to be maintained at the Concentration
Account Bank into which cash received from
the Cash Management Banks is wired as
provided in Section 8.01.
"Concentration Account Agreement" means a Control Agreement
among the Domestic Loan Parties, the
Concentration Account Bank and the
Administrative Agent, in form and substance
reasonably satisfactory to the
Agent, applicable to the Concentration
Account.
"Concentration Account Bank" means Bank of New York, or such
other Person or Persons as the
Administrative Borrower (with the prior written
consent of the Administrative Agent, which
consent shall not be unreasonably
withheld) may designate from time to
time.
"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
6
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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; 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
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<PAGE>
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.
"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
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).
"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).
"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
8
<PAGE>
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.
"Dollar," "Dollars" and the symbol "$" each means lawful money
of the United States of America.
"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 the date, on or before March 12, 2004,
on which all of the conditions precedent
set forth in Section 5.01 are satisfied
or waived and the initial Loans are made
and/or the initial Letter of Credit
Accommodations are issued.
"Eligible Accounts" means, at any time, Accounts of a Domestic
Loan Party which at such time meet 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 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 free and clear of any
Lien other than Liens permitted by
Section 8.03 and otherwise continues to be
in conformity in all material
respects with all representations and
warranties made by a Domestic Loan Party
to the Agent and the Lenders with respect
thereto in the Loan Documents; (iv)
such Account is unconditionally payable in
Dollars 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; (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 Debtor)
with respect to such Account is located
in the continental United States, 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
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<PAGE>
not also a supplier to or creditor of a
Domestic Loan Party, 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 bill
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 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 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 billings (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), bill and hold
invoices or retainage invoices, except as to
bill 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 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 Agent
and the Lenders with respect thereto
in the Loan Documents; (ii) such Inventory
is not held on consignment and
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<PAGE>
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 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, bill 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.
"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
11
<PAGE>
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 SARA 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 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
12
<PAGE>
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" or "(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.
"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
13
<PAGE>
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.
"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), (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.
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<PAGE>
"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 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 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"
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.
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"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 Agent 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 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
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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 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 such
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
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
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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.
"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 Agent 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 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).
"Judgment Currency" has the meaning specified therefor in
Section 11.06.
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"Landlord Waiver" means a letter in form and substance
reasonably acceptable to the 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.
"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 Agent 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.
"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
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<PAGE>
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 Concentration
Account 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 Agent and the Lenders on any of the
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
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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.
"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 Moody's 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 Agent 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.
"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
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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 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 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
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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
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).
"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 Agent 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,
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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 Agent 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.
"Participant Register" has the meaning specified therefor in
Section 12.07(b)(v).
"Payment Office" means the Administrative Agent's office
located at Eleven Madison Avenue, New York,
NY 10010, 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 the Agent and any Lender
under this Agreement and the other Loan
Documents;
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(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 Agent 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;
(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 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
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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 the Agent,
any Lender or any Affiliate of the
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;
(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.
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<PAGE>
"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;
(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
27
<PAGE>
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 the 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;
(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; and
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<PAGE>
(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.
"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
Agent 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
Agent 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%.
"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
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<PAGE>
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 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).
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<PAGE>
"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 Parties" shall mean, 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.
"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
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<PAGE>
which would otherwise be available to the
Borrowers under the lending formula(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 Agent and the Lenders in
the Collateral (including the
enforceability, perfection and priority
(including, without limitation, in respect
of any Liens, 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
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 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.
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<PAGE>
"Security Agreement" means a Security Agreement made by a Loan
Party in favor of the Collateral Agent for
the benefit of the Agent 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.
"Standard & Poor's" means Standard & Poor's Ratings
Services,
a division of The McGraw-Hill 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
Subordination and Intercreditor Agreement
dated as of March 12, 2004 by and
among the 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).
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<PAGE>
"Total Revolving A Credit Commitment" means the sum of the
amounts of the Lenders' Revolving A Credit
Commitments.
"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 the Agent include good
faith estimates by the Agent (in the
case of quantitative determinations) and
good faith beliefs by the 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,
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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 notwithstanding any
replacement or amendment of such statute
except as the Agent 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
the 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.
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(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
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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
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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.
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.
(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
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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 pursuant
to Section 2.05(a) or this Section
2.05(b), 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
outstanding, the Borrowers shall hereby be
deemed to represent and warrant to
the Agent 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.
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(ii)
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 (x) Section 6.01(t)
and (y) the requirement that cash and
cash equivalents of the Domestic Loan
Parties and their Domestic Subsidiaries in
the aggregate amount in excess of
$4,000,000 shall be in bank accounts subject
to a Cash Management Agreement or applied
to reduction of the Revolving A Loans.
(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
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).
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).
(iv)
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
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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).
(v) 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).
(vi)
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 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).
(vii)
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).
(viii)
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).
(ix)
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
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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
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 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;
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(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;
(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
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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 Agent 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.
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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 Moody's, Standard & Poor's or one 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 the 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 the 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 the 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 the
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) the 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
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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.
(c) The Loan
Parties hereby jointly and severally
indemnify and agree to hold the 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, the 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 any such Lender, the 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 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 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
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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 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, the 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, the Agent or the L/C Issuer
(or Transferee) to disclose any information
such Lender, the Agent or the L/C
Issuer (or Transferee) deems confidential
and would not, in the sole
determination of such Lender, the Agent or
the L/C Issuer (or Transferee), be
otherwise disadvantageous to such Lender,
the Agent or the L/C Issuer (or
Transferee).
(g) If any
Lender, the 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, the 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, the 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
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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 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
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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 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; and
(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.
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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.
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 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 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 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
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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 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 Agent
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 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
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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 Agent 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 Agent 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 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
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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
date, make Revolving A Loans equal to
the payment amount. Notwithstanding the
foregoing, each Borrower is irrevocably
and unconditionally obligated, without
presentment, demand or
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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 Agent 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
