Exhibit 10.4
EXECUTION VERSION
SENIOR SECURED SUPERPRIORITY PRIMING
DEBTOR-IN-POSSESSION
NOTE PURCHASE AGREEMENT
Dated as of May 12, 2009
among
MILACRON INC.,
as Debtor and Debtor-in-Possession
as Issuer
and the
GUARANTORS PARTY HERETO,
as Debtors and Debtors in Possession
and
JPMORGAN US HIGH YIELD BOND MOTHER FUND
and
JPMORGAN HIGH YIELD US DOLLAR MOTHER
FUND
as Purchasers
and
DDJ CAPITAL MANAGEMENT, LLC
as Administrative Agent and Registrar
Up to $1,759,000 aggregate principal
amount of DIP Term Notes, including Roll-Up DIP
Term Notes
NYDOCS01/1200447.18
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01
Certain Defined Terms
2
ARTICLE II
SALE AND PURCHASE OF THE NOTES; TERMS OF THE NOTES
Section 2.01
Reserved
4
Section 2.02
Agreement to Issue and
Purchase
4
Section 2.03
Roll-Up Issuances
5
Section 2.04
Closing Delivery and Payment
5
Section 2.05
Termination or Reduction of NPA
Commitments
5
Section 2.06
Prepayment
5
Section 2.07
Interest
6
Section 2.08
Fees
6
Section 2.09
Conversion from Eurodollar Rate Notes to
Base Rate Notes
6
Section 2.10
Increased Costs
6
Section 2.11
Computation of Payments
6
Section 2.12
Tax
6
Section 2.13
Sharing of Payments
6
Section 2.14
Use of Proceeds
6
Section 2.15
Defaulting Purchasers
7
Section 2.16
Priority and Liens
7
Section 2.17
Payment of Obligations
7
Section 2.18
No Discharge; Survival of
Claims
7
Section 2.19
Replacement of Purchasers
7
Section 2.20
Waiver of Priming Rights
7
Section 2.21
Release
7
Section 2.22
Maturity
8
Section 2.23
Legend
8
Section 2.24
Replacement DIP Term Notes
8
Section 2.25
Transfer
8
Section 2.26
Cancellation
8
ARTICLE III
CONDITIONS TO CLOSING
Section 3.01
Conditions Precedent to any
Closing
9
Section 3.02
Conditions Precedent to the Initial
Purchase
9
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Purchase Agreement
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01
Representations and Warranties of the
Company and the Guarantors
9
Section 4.02
Representations and Warranties of the
Purchaser
9
ARTICLE V
COVENANTS OF THE COMPANY AND THE GUARANTORS
Section 5.01
Additional Covenants
10
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01
Events of Default
10
ARTICLE VII
THE ADMINISTRATIVE AGENT AND REGISTRAR
Section 7.01
The Administrative Agent
11
Section 7.02
The Registrar
11
ARTICLE VIII
SUBSIDIARY GUARANTY
Section 8.01
Subsidiary Guaranty
11
ARTICLE IX
SECURITY
Section 9.01
The Security
11
ARTICLE X
MODIFICATIONS AND WAIVERS
Section 10.01
Modifications and Waivers
12
Section 10.02
Binding Effect, Etc
12
Section 10.03
Notes Held by Company, Etc
12
Section 10.04
Unequivocal Right to Credit
Bid
13
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Purchase Agreement
ARTICLE XI
MISCELLANEOUS
Section 11.01
Notices, Etc
13
Section 11.02
No Waiver; Remedies
14
Section 11.03
Costs, Fees and Expenses
14
Section 11.04
Right of Set-off
14
Section 11.05
Binding Effect
14
Section 11.06
Severability
14
Section 11.07
Successors and Assigns
14
Section 11.08
Execution in Counterparts
15
Section 11.09
Confidentiality
15
Section 11.10
Patriot Act Notice
15
Section 11.11
Jurisdiction, Etc
15
Section 11.12
Governing Law
16
Section 11.13
Waiver of Jury Trial
16
Section 11.14
DIP Intercreditor Agreement and other
Agreements
16
Section 11.15
Catch-All Provision, Principles of
Interpretation.
16
SCHEDULES
Schedule I
Purchasers and NPA Commitments
EXHIBITS
Exhibit A
Form of DIP Term Note
Exhibit B
Form of Notice of Issuance
Exhibit C
DIP Term Credit Agreement
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The Schedules and Exhibits to the
DIP Term Credit Agreement are deemed to be attached
hereto mutatis
mutandis.
SCHEDULES (DIP TERM CREDIT
AGREEMENT)
|
|
|
Schedule I
|
Commitments and Applicable Lending Offices
|
|
Schedule II
|
Intellectual Property
|
|
Schedule III
|
Material IP Agreements
|
|
Schedule IV
|
Initial Pledged Equity
|
|
Schedule V
|
Initial Pledged Debt
|
|
Schedule VI
|
Post U.S. Final DIP Order - Commitment and Applicable Lending
Offices
|
|
Schedule 1.01(b)
|
Material Intellectual Property
|
|
Schedule 4.01
|
Equity Investments; Subsidiaries
|
|
Schedule 4.01(h)
|
Disclosures
|
|
Schedule 4.01(l)
|
Environmental Matters
|
|
Schedule 5.01(n)(iii)
|
Post-Closing Matters
|
|
Schedule 5.02(a)
|
Existing Liens
|
|
Schedule 5.02(b)
|
Existing Debt
|
|
Schedule 5.02(c)
|
Existing Guarantee Obligations
|
|
Schedule 5.02(g)
|
Existing Investments
|
EXHIBITS (DIP TERM CREDIT
AGREEMENT)
|
|
|
Exhibit A
|
Form of Note
|
|
Exhibit B
|
Form of Notice of Borrowing
|
|
Exhibit C-1
|
Noteholder - Form of Assignment and Acceptance
|
|
Exhibit C-2
|
General - Form of Assignment and Acceptance
|
|
Exhibit D-1
|
Form of Opinion of Dinsmore & Shohl
|
|
Exhibit D-2
|
Form of In-House Legal Opinion
|
|
Exhibit E-1
|
U.S. Interim DIP Order
|
|
Exhibit E-2
|
Canadian Recognition Order
|
|
Exhibit F
|
[Reserved]
|
|
Exhibit G
|
Form of Guaranty Supplement
|
|
Exhibit H
|
Canadian Security Agreement
|
|
Exhibit I
|
DIP Intercreditor Agreement
|
|
Exhibit J
|
Form of Market Disruption Notice
|
NYDOCS01/1200447.18
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Purchase Agreement
SENIOR SECURED SUPERPRIORITY PRIMING
DEBTOR-IN-POSSESSION
NOTE PURCHASE AGREEMENT
This Senior Secured Superpriority Priming
Debtor-in-Possession Note Purchase Agreement, dated as of
April 29, 2009 (as may be amended, supplemented or otherwise
modified from time to time, this “ Agreement ”),
is entered into by and among MILACRON INC., a Delaware corporation
and a debtor and debtor-in-possession in a case pending under
chapter 11 of the Bankruptcy Code (as hereinafter defined), as
issuer (the “ Company ”), the Guarantors party
hereto, each a debtor and debtor-in-possession in a case pending
under chapter 11 of the Bankruptcy Code, JPMorgan US High Yield
Bond Mother Fund and JPMorgan High Yield US Dollar Mother Fund
(each, along with any other person that becomes a purchaser
hereunder, a “ Purchaser ” and together, the
“ Purchasers ”) and DDJ CAPITAL MANAGEMENT, LLC,
in its capacity as administrative agent (including any successor
appointed pursuant to Article VII hereto, the “
Administrative Agent ”) and Registrar (as hereinafter
defined).
RECITALS:
WHEREAS, capitalized terms used and not
defined herein shall have the respective meanings set forth in
Section 1.1 hereof or in the DIP Term Credit Agreement
(as defined below) (a copy of which is attached hereto as
Exhibit C );
WHEREAS, on March 10, 2009, the
Company and each of the Guarantors filed voluntary petitions in the
United States Bankruptcy Court for the Southern District of Ohio
for relief, and commenced cases under chapter 11 of the Bankruptcy
Code and have continued in the possession of their assets and in
the management of their businesses pursuant to sections 1107
and 1108 of the Bankruptcy Code;
WHEREAS, the Canadian Guarantor has
commenced a recognition proceeding in the Canadian Bankruptcy Court
under section 18.6 of the Companies’ Creditors
Arrangement Act (Canada) ;
WHEREAS, on March 11, 2009, pursuant
to the U.S. Interim DIP Order, the Company and the Guarantors
entered into a Senior Secured Superpriority Debtor-In-Possession
Credit Agreement (as amended, supplemented or modified from time to
time, the “ DIP Term Credit Agreement ”) with
the Administrative Agent, Initial Lenders and the other Lenders
from time to time party thereto;
WHEREAS, certain investment funds
affiliated with, or managed by, JPMorgan Investment Management,
Bayside Capital Inc. and Symphony Asset Management, LLC (together,
the “ Electing Noteholders ”) have elected to
participate in the DIP Term Loan Facility pursuant to the U.S.
Interim DIP Order and certain other specified terms and conditions,
subject to the following recitals; and
WHEREAS, certain of the Electing
Noteholders have requested to purchase DIP Term Notes, in lieu of
making Advances under the DIP Term Credit Agreement (such Electing
Noteholders being Purchasers hereunder).
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Purchase Agreement
NOW, THEREFORE, in consideration of the
premises and of the mutual covenants and agreements contained
herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Certain Defined Terms
. As used in this Agreement, the
following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the
terms defined):
“ Administrative Agent
” has the meaning specified in the recitals.
“ Advances ” has the
meaning specified in the DIP Term Credit Agreement.
“ Agreement ” has the
meaning specified in the recitals.
“ Bankruptcy Code ”
means title 11 of the United States Code (11 U.S.C.
§§ 101 et seq. ).
“ Base Rate ” means a
fluctuating interest rate per annum in effect from time to time, as
determined by the Administrative Agent in respect of the Advances
under the DIP Term Credit Agreement, and applied by the
Administrative Agent as the interest paid under the DIP Term Notes,
as applicable.
“ Base Rate Notes ”
means DIP Term Notes that pay interest at the Base Rate.
“ Catch-Up ” means,
with respect to a Purchaser, when such Purchaser has Purchased DIP
Term Notes, including any Issuance of Roll-Up DIP Term Notes in
connection therewith, equal to the product of (x) its Commitment
Percentage multiplied by (y) all Advances, Roll-Up Advances, DIP
Term Notes and Roll-Up DIP Term Notes made or issued since the
Effective Date (as defined in the DIP Term Credit
Agreement).
“ Catch-Up Lenders ”
has the meaning specified in the DIP Term Credit
Agreement.
“ Catch-Up Percentage
” means with respect to a Catch-Up Lender or Purchaser, the
percentage that results from dividing (a) such Catch-Up
Lender’s or Purchaser’s Commitment Percentage by (b)
the aggregate of all Catch-Up Lenders’ and Purchasers’
Commitment Percentages.
“ Commitment ” means
with respect to each Purchaser the amount set forth in Schedule I
hereto under the heading “Catch-Up
Percentage.”
“ Commitment Percentage
” means with respect to each Purchaser the amount set forth
in Schedule I hereto under the heading “Commitment
Percentage.”
“ Company ” has the
meaning specified in the recitals.
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“ Closing ” has the
meaning specified in Section 2.04 .
“ Closing Date ”
means, in respect of any Closing, the date of such
Closing.
“ Defaulting Purchaser
” has the meaning specified in Section 2.15
.
“ DIP Term Credit Agreement
” has the meaning specified in the recitals.
“ DIP Term Loan Facility
” has the meaning specified in the U.S. Final DIP
Order.
“ Electing Noteholder
” has the meaning specified in the recitals.
“ Eurodollar Rate ”
means an interest rate per annum in effect from time to time, as
determined by the Administrative Agent in respect of the Advances
under the DIP Term Credit Agreement, and applied by the
Administrative Agent as the interest paid under the DIP Term Notes,
as applicable.
“ Eurodollar Notes ”
means DIP Term Notes that pay interest at the Eurodollar
Rate.
“ Final DIP Term Notes ” has the meaning specified in Section
11.07(b) .
“ Final DIP Term Notes Catch-Up Amount
” has the meaning specified in
Section 11.07(b) .
“ Issuance ” has the
meaning specified in Section 2.02(a)(i) .
“ Legend ” has the
meaning specified in Section 2.23 .
“ Lender ” has the
meaning specified in the DIP Term Credit Agreement.
“ Notice of Borrowing
” has the meaning specified in the DIP Term Credit
Agreement.
“ Notice of Issuance ”
has the meaning specified in Section 2.02(a)(ii)
.
“ NPA Commitment ”
means, with respect to any Purchaser at any time, the amount set
forth opposite such Purchaser’s name on Schedule I
hereto under the caption “NPA Commitment,” as such
amount may be reduced in accordance with the termination or
reduction of Commitments provision of the DIP Term Credit Agreement
set forth herein mutatis mutandis , taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
“ Officer ” means the
Chairman of the Board, the Chief Executive Officer, the President,
any Executive Vice President, Senior Vice President or Vice
President, the Chief Financial Officer, the Treasurer or Secretary
of the Company.
“ Participation Costs
” means an amount equal to the aggregate amount of costs,
fees and expenses incurred in connection with the preparation and
consummation of this
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Agreement (including, without limitation,
any additional costs, fees and expenses owed to the Administrative
Agent (or sub-agent thereto) as a result of the participation of
the Purchasers in the DIP Term Loan Facility), along with the
ancillary documentation with respect thereto, and the issuance of
DIP Term Notes hereunder, to the extent of the amount of such
costs, fees and expenses in excess of $25,000.
“ Purchase ” has the
meaning specified in Section 2.02(a)(i) .
“ Purchasers ” has the
meaning specified in the recitals.
“ Register ” has the
meaning specified in Section 7.02 .
“ Roll-Up Advances ”
has the meaning specified in the DIP Term Credit
Agreement.
“ Roll-Up DIP Term Notes
” has the meaning specified in Section 2.03
.
“ Securities Act ”
means the U.S. Securities Act of 1933, as amended.
“ Termination Date ”
has the meaning specified in the DIP Term Credit
Agreement.
“ Unused NPA Commitment
” means, with respect to any Purchaser at any time, (a) such
Purchaser’s NPA Commitment at such time minus (b) the
aggregate principal amount of all Issuances made to such
Purchaser.
ARTICLE II
SALE AND PURCHASE OF THE NOTES; TERMS OF THE NOTES
Section
2.01
Reserved .
Section
2.02
Agreement to Issue and
Purchase .
(a)
Issuance and Purchase and General
Mechanics . (i)
Subject to the terms and conditions set forth herein,
including timely delivery of a Notice of Borrowing and until the
occurrence of the Termination Date, each Purchaser shall, from time
to time on the date of any Borrowing under the DIP Term Credit
Agreement, purchase from the Company (each a “
Purchase ”), and at such times the Company shall sell
(each an “ Issuance ”) to such Purchaser a
principal amount of DIP Term Notes equal to such Purchaser’s
Commitment Percentage of the aggregate amount of the Borrowing
specified in the Notice of Borrowing and as set forth in the Notice
of Issuance, at a price equal to 100% of the principal amount
thereof, and in any case (x) in an amount for each such
Issuance not to exceed such Purchaser’s Unused NPA Commitment
as of the Closing of such Issuance and Purchase and (y) in an
aggregate amount for all such Issuances not to exceed such
Purchaser’s NPA Commitment; provided, however, that with
respect to each Purchase and Issuance (and Borrowing), or portion
thereof, that occurs prior to the Catch-Up, such Purchase and
Issuance (and Borrowing), or portion thereof,
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shall be made by the Purchasers and
Catch-Up Lenders ratably based on their respective Catch-Up
Percentage.
(ii) At least three (3) Business
Days prior to any intended Issuance hereunder, the Company shall
deliver a copy of the Notice of Borrowing to the Purchasers and the
Administrative Agent shall provide a Notice of Issuance in
substantially the form attached hereto as Exhibit B (a
“ Notice of Issuance ”) to the Purchasers after
receipt by the Administrative Agent of such Notice of Borrowing.
The provisions set forth in Section 2.02 of the DIP
Term Credit Agreement regarding the mechanics for making Advances
are set forth herein mutatis mutandis as if such provisions
applied to Issuances and Purchases, taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
(b)
For the avoidance of doubt, each Purchase
of DIP Term Notes under clause (a) shall be exclusive of Roll-Up
DIP Term Notes, which are governed by the terms contained in
Section 2.03 hereof.
Section
2.03
Roll-Up Issuances
. Section 2.01(c) of
the DIP Term Credit Agreement is set forth herein mutatis mutandis,
taking into account such modifications as are necessary to reflect
the terms herein and in the DIP Term Notes, such that, upon each
Purchase and Issuance, the Purchasers shall be issued, on the
relevant Closing Date, additional DIP Term Notes (“
Roll-Up DIP Term Notes ”) in a principal amount
corresponding to the amount of the Roll-Up Advance that would have
been made had such Purchase been an Advance under the DIP Term
Credit Agreement. The principal amount of Roll-Up DIP Term
Notes to be received by each Purchaser in connection with each
Purchase shall be calculated by the Administrative Agent and shall
be communicated to such Purchaser as soon as practicable following
the relevant Closing.
Section
2.04
Closing Delivery and
Payment . The closing of
the Issuance and Purchase of DIP Term Notes (each, a “
Closing ”) shall take place, subject to the terms of
this Agreement, on the date specified by the Company in the
relevant Notice of Borrowing, or at such other time and date as
shall be agreed in writing between the Company and the Purchasers;
provided that if all the conditions set forth in Section
3.01 and/or Section 3.02 , as applicable, have not
been satisfied (or, waived by the Company or the Required Lenders,
as applicable) as of such date, as soon as practicable after all
such conditions have been satisfied (or, waived by the Company or
the Required Lenders, as applicable).
Section
2.05
Termination or Reduction of NPA
Commitments . The
provisions for the termination or reduction of Commitments set
forth in Section 2.05 of the DIP Term Credit Agreement
shall apply mutatis mutandis to the termination or reduction of the
NPA Commitments upon each Issuance and as further described
therein, taking into account such modifications as are necessary to
reflect the terms herein and in the DIP Term Notes.
Section
2.06
Prepayment . To the extent the Company repays Advances
under the DIP Term Credit Agreement, it will repay and redeem a
corresponding aggregate principal amount of DIP Term Notes
hereunder, and to the extent the Company repays or redeems DIP Term
Notes hereunder, it will repay a corresponding amount of Advances
under the DIP Term Credit Agreement. The provisions set forth
in Section 2.06 of the DIP Term Credit
Agreement
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obligating the Company to pay a
Prepayment Premium are set forth herein mutatis mutandis ,
taking into account such modifications as are necessary to reflect
the terms herein and in the DIP Term Notes.
Section
2.07
Interest . The provisions set forth in
Section 2.07 of the DIP Term Credit Agreement
obligating the Company to pay interest are set forth herein mutatis
mutandis, taking into account such modifications as are necessary
to reflect the terms herein and in the DIP Term Notes.
Section
2.08
Fees . The provisions set forth in
Section 2.08 of the DIP Term Credit Agreement
obligating the Company to pay additional fees are set forth herein
mutatis mutandis, taking into account such modifications as are
necessary to reflect the terms herein and in the DIP Term Notes;
provided, however, that the Purchasers shall not be entitled to
receive, and the Company shall not be required to pay, any fees
referred to in Section 2.08(b) of the DIP Term Credit
Agreement.
Section
2.09
Conversion from Eurodollar Rate Notes
to Base Rate Notes .
The conversion provisions set forth in
Section 2.09 of the DIP Term Credit Agreement are set
forth herein mutatis mutandis, taking into such modifications as
are necessary to reflect the terms herein and in the DIP Term
Notes. Upon any such conversion, the Registrar will cancel
the old DIP Term Notes and issue new DIP Term Notes reflecting the
converted rate of interest. Every new DIP Term Note issued
pursuant to this Section is an additional obligation of the Company
and shall be entitled to all of the benefits of this Agreement
equally and proportionately with any and all other DIP Term Notes
duly issued hereunder.
Section
2.10
Increased Costs
. The provisions set forth in
Section 2.10 of the DIP Term Credit Agreement
obligating the Company to pay certain increased costs are set forth
herein mutatis mutandis, taking into account such modifications as
are necessary to reflect the terms herein and in the DIP Term
Notes.
Section
2.11
Computation of Payments
. The Company shall compute amounts
of payments under the DIP Term Notes in accordance with
Section 2.11 of the DIP Term Credit Agreement, which is
set forth herein mutatis mutandis, taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
Section
2.12
Tax . The covenants of the Company and the
Guarantors set forth in Section 2.12 of the DIP Term
Credit Agreement are set forth herein mutatis mutandis, taking into
account such modifications as are necessary to reflect the terms
herein and in the DIP Term Notes.
Section
2.13
Sharing of Payments
. Each Purchaser shall share with
the Lenders (and each other) any payments as set forth under
Section 2.13 of the DIP Term Credit Agreement, which is
set forth herein mutatis mutandis, taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
Section
2.14
Use of Proceeds
. The covenants of the Company and
the Guarantors set forth in Section 2.14 of the DIP
Term Credit Agreement are set forth herein mutatis mutandis, taking
into account such modifications as are necessary to reflect the
terms
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herein and in the DIP Term Notes,
including the obligation of the Company to remit proceeds hereunder
to the Initial Lenders in certain circumstances set forth in
Section 11.07(b) .
Section
2.15
Defaulting Purchasers
. The provisions relating to
Defaulting Lenders set forth in Section 2.15 of the DIP
Term Credit Agreement shall apply mutatis mutandis to any failure
of any Purchaser to purchase DIP Term Notes as required hereby
(such Purchaser, a “ Defaulting Purchaser ”),
taking into account such modifications as are necessary to reflect
the terms herein and in the DIP Term Notes.
Section
2.16
Priority and Liens
. The provisions relating to
Priority and Liens set forth in Section 2.17 of the DIP
Term Credit Agreement shall apply mutatis mutandis to the
obligations under the DIP Term Notes, taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
Section
2.17
Payment of Obligations
. The provisions relating to
payment of certain obligations under DIP Term Notes without further
application to or order of the applicable Bankruptcy Court set
forth in Section 2.18 of the DIP Term Credit Agreement
shall apply mutatis mutandis to the payment of obligations
hereunder and under the DIP Term Notes, taking into account such
modifications as are necessary to reflect the terms herein and in
the DIP Term Notes.
Section
2.18
No Discharge; Survival of
Claims . The provisions
relating to survival of claims and other matters set forth in
Section 2.19 of the DIP Term Credit Agreement shall
apply mutatis mutandis to the DIP Term Note Purchase Agreement the
DIP Term Notes, taking into account such modifications as are
necessary to reflect the terms herein and in the DIP Term
Notes.
Section
2.19
Replacement of Purchasers
. The provisions relating to the
replacement of Affected Lenders (including, but not limited to,
Lenders that fail to comply with the directions of the Required
Lenders under any of the Transaction Documents or in connection
with the transactions contemplated therein, including in connection
with a Credit Bid) set forth in Section 2.20 of the DIP
Term Credit Agreement shall apply mutatis mutandis to the treatment
of Defaulting Purchasers hereunder such that, inter alia, such
Defaulting Purchasers’ DIP Term Notes (or the
obligations represented thereby) may be purchased by a Replacement
Lender in accordance with the terms of such Section 2.20 ,
and the Defaulting Purchasers shall be subject to the full terms
thereof, taking into account such modifications as are necessary to
reflect the terms herein and in the DIP Term Notes.
Section
2.20
Waiver of Priming Rights
. The provisions relating to waiver
of priming rights set forth in Section 2.21 of the DIP
Term Credit Agreement shall apply mutatis mutandis to the DIP Term
Note Purchase Agreement the DIP Term Notes, taking into account
such modifications as are necessary to reflect the terms herein and
in the DIP Term Notes.
Section
2.21
Release . The provisions relating to release of claims
and other matters set forth in Section 2.22 of the DIP
Term Credit Agreement shall apply mutatis mutandis to the DIP Term
Note Purchase Agreement the DIP Term Notes, taking into account
such modifications as are necessary to reflect the terms herein and
in the DIP Term Notes.
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Section 2.22
Maturity . The DIP Term Notes shall mature on the
Maturity Date, subject to early prepayment as set forth
herein.
Section
2.23
Legend . The DIP Term Notes shall bear a legend
relating to the restrictions on transfer imposed on such DIP Term
Notes by the laws and other restrictions set forth on the form of
Note attached hereto as Exhibit B (collectively, the
“Legend”), and such DIP Term Notes shall be subject to
such restrictions. If DIP Term Notes are issued upon the
transfer or replacement of DIP Term Notes bearing the Legends, the
DIP Term Notes so issued shall bear the Legend.
Section
2.24
Replacement DIP Term Notes
. If any mutilated DIP Term Note is
surrendered to the Registrar or the Company or the Registrar
receives evidence to its satisfaction of the destruction, loss or
theft of any DIP Term Note, the Company shall issue a replacement
DIP Term Note. If required by the Registrar or the Company,
an indemnity bond must be supplied by the holder of the DIP Term
Note that is sufficient in the judgment of the Registrar and the
Company to protect the Registrar and the Company from any loss that
any of them may suffer if a DIP Term Note is replaced. The
Company may charge for its expenses in replacing a DIP Term Note.
In case any such mutilated, destroyed, lost or stolen DIP
Term Note has become or is about to become due and payable, the
Company in its discretion shall be permitted, instead of issuing a
new DIP Term Note, pay or purchase such DIP Term Note, as the case
may be. Every replacement DIP Term Note is an additional
obligation of the Company and shall be entitled to all of the
benefits of this Agreement equally and proportionately with all
other DIP Term Notes duly issued hereunder.
Section
2.25
Transfer . When DIP Term Notes are presented to the
Registrar with a request to register the transfer of such DIP Term
Notes, the Registrar shall register the transfer as requested;
provided, however, that the DIP Term Notes surrendered for transfer
or exchange:
(i)
comply with the requirements set forth in
Section 11.07 regarding assignment of the obligation of
the Purchaser hereunder to such transferee; and
(ii)
are being transferred or exchanged
pursuant to an exemption from registration under the Securities
Act.
The transferee shall provide (i) a
certification that such DIP Term Note is being transferred to
either (A) an “accredited investor” (pursuant to
Rule 501 of Regulation D under the Securities Act) that was not
formed for the specific purpose of acquiring the DIP Term Notes or
(B) a “qualified institutional buyer” (as defined
in Rule 144A under the Securities Act) and (ii) if the
Company so requires, an opinion of counsel or
