EXHIBIT 10.21 AMENDMENT NUMBER FOUR, dated as of August 8, 2001 (“Amendment”) to the Amended and Restated Revolving Credit Agreement dated as of November 30, 1998, as amended by Amendment No. 1 dated as of March 31, 1999, Amendment No. 2 dated as of January 31, 2000, Amendment No. 3 dated as of July 13, 2000 and as amended hereby (the “Credit Agreement”), among MILACRON INC., a Delaware corporation (the “Borrower” and the “Company”), MILACRON KUNSTSTOFFMASCHINEN EUROPA GMBH, a German corporation (“MKE”), MILACRON METAL-WORKING TECHNOLOGIES HOLDING GMBH, a German corporation (“Milacron GmbH”) and MILACRON B.V., a Dutch corporation (“Milacron B.V.”, together with MKE and Milacron GmbH, the “Foreign Subsidiary Borrowers”; the Foreign Subsidiary Borrowers, collectively, with the Company, the “Borrowers”), the lending institutions from time to time party thereto (each, a “Lender” and, collectively, the “Lenders”), Bankers Trust Company, a New York banking corporation (“BTCo”), as a Lender and as arranger and administrative agent for the Lenders (in such capacity, including its successors and permitted assigns, the “Agent”), and PNC Bank, as documentation agent. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, the Company has requested that the Agent and the Lenders amend certain provisions of the Credit Agreement;
WHEREAS, the Agent and the Lenders have considered and agreed to the Company’s requests, upon the terms and conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - AMENDMENTS. The Credit Agreement is amended as hereinafter provided in this Section ONE, effective as of August 8, 2001 (the “Amendment Effective Date”).
1.1. Amendments to Section 1 (Definitions) of the Credit Agreement.
Section 1.1 is hereby amended by adding the following new definitions in appropriate alphabetical order:
“ ‘Amendment No. 4’ shall mean Amendment Number FOUR dated as of August 8, 2001 to this Agreement.”
“ ‘Amendment No. 4 Effective Period’ shall mean the period from and including August 8, 2001 to but excluding October 15, 2001.”
“ ‘Amendment No. 4 Effective Period Reduction’ shall have the meaning set forth in Section 2.1.”
“ ‘Dividends’ shall mean any dividends declared or paid on the shares of capital stock of a Person, any cash distribution to the stockholders of the Person in respect of the capital stock of such Person or any funds set aside for any such purpose.”
Section 1.1 is hereby further amended as follows:
“Consolidated EBITDA” is amended by adding in the definition thereof immediately prior to the end of the parenthetical in clause (i) the following: “and any restructuring charges and related severance and other expenses incurred by the Company for the fiscal quarter ending September 30, 2001 in an aggregate amount of up to $20.0 million”.
“Consolidated Net Worth” is amended by adding in the definition thereof immediately prior to the period at the end thereof the following: “ plus (iii) any restructuring charges and related severance and other expenses incurred by the Company for the fiscal quarter ending September 30, 2001 in an aggregate amount of up to $20.0 million”.
1.2. Amendments to Section 2 (Amount and Terms of Loans) of the Credit Agreement.
Section 2.1(a) is hereby amended by adding immediately following the words “the initial amount of the Total Revolving Loan Commitment is $375,000,000.” the following:
“Notwithstanding the foregoing, during the Amendment No. 4 Effective Period, for all purposes other than assignments of Revolving Loan Commitments, the Total Revolving Loan Commitment shall be temporarily reduced (the “Amendment No. 4 Effective Period Reduction”) to $340,000,000 and, during the Amendment No. 4 Effective Period, each Lender’s Revolving Loan Commitment shall be temporarily reduced by an amount equal to its Pro Rata Share of such reduction. After the Amendment No. 4 Effective Period, the temporary reduction in the Total Revolving Loan Commitment and each Lender’s Revolving Loan Commitment pursuant to the immediately preceding sentence will cease to be effective.”
Section 2.13 is hereby amended by adding immediately following the words “multiplied by the daily average of the Total Revolving Loan Commitments” the following:
“without giving effect to the Amendment No. 4 Effective Period Reduction”.
1.3. Amendments to Section 5 (Affirmative Covenants) of the Credit Agreement.
Section 5.1 is hereby amended by adding at the end of such Section the following:
“In addition, the Company shall furnish to each Lender not later than October 15, 2001, (a) unaudited consolidated balance sheets of the Company and its Consolidated Subsidiaries as of the last day of the quarter ending September 30, 2001, and related consolidated statements of earnings and consolidated statements of cash flows for such quarter, in reasonable detail and in comparative form for the corresponding quarterly period in the prior fiscal year and (b) the statement and Compliance Certificate for such quarter set forth in clauses (i) and (ii) of clause (d) of the preceding sentence; provided that, notwithstanding anything to the contrary in this Agreement, such statement and Compliance Certificate shall not give effect to, and the determination of the Company’s compliance with this Agreement and the existence of any Default or Event of Default as of such date shall be determined without giving effect to, the amendments to Sections 5.11 and 6.4 of this Agreement effected by Amendment No. 4.”
Section 5.11 is hereby amended by adding at the end of such Section the following:
“ provided that, notwithstanding the foregoing, with respect to the Amendment No. 4 Effective Period, the Company shall be required to ensure only that such ratio shall not exceed 4.50 to 1.00.”
1.4 Amendments to Section 6 (Negative Covenants) of the Credit Agreement.
Section 6.4 is hereby amended by adding at the end of such Section the following:
“provided that, with respect to the Amendment No. 4 Effective Period, the Company shall be required to ensure only that such ratio shall not be less than 2.25 to 1.00.”
Section 6 is hereby amended by adding at the end thereof a new Section 6.13 as follows:
“Section 6.13. Dividends, Stock Purchases, Acquisitions, Mergers, etc. During the Amendment No. 4 Effective Period, neither the Company nor any of its Subsidiaries shall:
(a) authorize, declare or pay, directly or indirectly, any Dividend, except that (a) the Company may declare and pay regular quarterly Dividends with record and payment dates consistent with past practice and in a per share amount no greater than the per share quarterly Dividend paid by the Company in the fiscal quarter ending immediately prior to the date of Amendment No. 4 and (b) any Subsidiary of the Company (i) may pay cash Dividends to the Company or any wholly owned Subsidiary of the Company and (ii) if such Subsidiary is not a wholly owned Subsidiary of the Company, may pay cash Dividends to its shareholders generally so long as the Company or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary);
(b) authorize or make any other distribution, payment or delivery of property (other than common stock of such Person) or cash to any holder of shares of capital stock of the Company or any of its Subsidiaries in respect of such capital stock, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration (other than common stock of such Person) any shares of any class of capital stock of the Company or any of its Subsidiaries (or any options or warrants issued by any such Person with respect to the capital stock of the Company or any of its Subsidiaries), or set aside any funds for any of the foregoing purposes; provided that the Company or any of its Subsidiaries may redeem, retire, purchase or otherwise acquire for consideration (or set aside funds for the purpose of the foregoing) shares of their capital stock (or options or warrants issued with respect to such capital stock) to the extent required by stock option or other benefit plans or compensation arrangements for directors, officers or employees of the Company or any of its Subsidiaries, in each case as in effect on the date hereof, up to an aggregate of $100,000 for all such redemptions, retirements, purchases or other acquisitions pursuant to this proviso; or
(c) enter into any transaction of merger or consolidation with any Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (other than the Company or one of its Subsidiaries) or a line of business of any Person (other than the Company or one of its Subsidiaries) or any equity interests of any Person (other than the Company or one of its Subsidiaries) (or agree to do any of the foregoing at any future time), except that (i) any wholly owned Subsidiary of the Company may be merged into the Company (so long as the Company is the surviving corporation of such merger) or merged into or consolidated with any other wholly owned Subsidiary of the Company and (ii) the Company and its Subsidiaries may effect any of the foregoing transactions provided that the only consideration paid by the Company and its Subsidiaries pursuant to such transactions is paid solely in the form of common stock of the Company.”
SECTION TWO - REPRESENTATIONS AND WARRANTIES. The Company hereby confirms, reaffirms and restates the representations and warranties made by it in Section 8 of the Credit Agreement, as amended hereby, and all such representations and warranties are true and correct in all material respects as of the date hereof except such representations and warranties need not be true and correct to the extent that changes in the facts and conditions on which such representations and warranties are based are required or permitted under the Credit Agreement or such changes arise out of events not prohibited by the covenants set forth in Sections 5 and 6 of the Credit Agreement. The Company further represents and warrants (which representations and warranties shall survive the execution and delivery hereof) to the Agent and each Lender that:
(a) The Company, MKE, Milacron GmbH and Milacron B.V. each has the corporate power, authority and legal right to execute, deliver and perform this Amendment and has taken all corporate actions necessary to authorize the execution, delivery and performance of this Amendment;
(b) No consent of any Person other than the Lenders, and no consent, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment;
(c) This Amendment has been duly executed and delivered on behalf of each of the Company, MKE, Milacron GmbH and Milacron B.V. by a duly authorized officer or attorney-in-fact of the Company or a Foreign Subsidiary Borrower, as the case may be, and constitutes a legal, valid and binding obligation of the Company and each Foreign Subsidiary Borrower, as the case may be, enforceable in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditor’s rights generally or by equitable principles relating to enforceability; and
(d) The execution, delivery and performance of this Amendment will not violate (i) any provision of law applicable to the Company or any Foreign Subsidiary Borrower or (ii) contractual obligations of either the Company or any Foreign Subsidiary Borrower, except in the case of clause (i) or (ii), such violations that would not have, individually or in the aggregate, a Material Adverse Effect.
SECTION THREE - MISCELLANEOUS. (a) Except as herein expressly amended, the Credit Agreement and all other agreements, documents, instruments and certificates executed in connection therewith, except as otherwise provided herein, are ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms.
(b) All references to the Credit Agreement shall mean the Credit Agreement as amended as of the Amendment Effective Date, and as the same may at any time be amended, amended and restated, supplemented or otherwise modified from time to time and as in effect.
(c) This Amendment may be executed by the parties hereto in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement.
(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(e) This Amendment shall not constitute a consent or waiver to or modification of any other provision, term or condition of the Credit Agreement. All terms, provisions, covenants, representations, warranties, agreements and conditions contained in the Credit Agreement, as amended hereby, shall remain in full force and effect.
| Amendment No. 4 |
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| | MILACRON INC. |
|
| | By: /s/ Robert P. Lienesch |
| | |
|
| | Title: | Vice President - Finance
and Chief Financial Officer |
|
| | Notice Addresss:
Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
Fax: (513) 487-5586 |
|
| | MILACRON KUNSTSTOFFMASCHINEN
EUROPA GmbH, |
|
| | By: /s/ Robert P. Lienesch |
| | |
|
| | | on basis of Power of Attorney
dated as of July 26, 2001 |
|
| | Notice Addresss:
c/o Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
Fax: (513) 487-5586 |
|
| | MILACRON METALWORKING
TECHNOLOGIES HOLDING GmbH, |
|
| | By: /s/ Robert P. Lienesch |
| | |
|
| | | on basis of Power of Attorney
dated as of July 27, 2001 |
|
| | Notice Addresss:
c/o Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
Fax: (513) 487-5586 |
|
| | MILACRON B.V. |
|
| | By: /s/ Robert P. Lienesch |
| | |
|
| | | on basis of Power of Attorney
dated as of July 30, 2001 |
|
| | Notice Addresss:
c/o Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
Fax: (513) 487-5586 |
|
| | ABN AMRO BANK N.V., as a Lender |
|
| | By: /s/ Wendy E. Pace |
| | |
|
| | Title: | Vice President |
|
| | By: /s/ Mary L. Honda |
| | |
|
| | Title: | Vice President |
|
| | Notice Office and Payment
Office:
208 South LaSalle Street
Chicago, IL 60674
Attention: Loan Administration
Telephone: (312) 992-5151
Fax: (312) 992-5156 |
|
| | BANKERS TRUST COMPANY,
as a Lender and as Agent |
|
| | By: /s/ Diane F. Rolfe |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Maria Pina
Telephone: (212) 250-8829
Fax: (212) 250-7351 |
|
| | BANK ONE,INDIANA, N.A., as a
Lender |
|
| | By: /s/ Michael R. Zaksheske |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
100 East Broad Street
7th Floor
Columbus, Ohio 43215
Attention:
Telephone: (614) 248-1780
Fax: (614) 248-5518 |
|
| | COMERICA BANK, as a Lender |
|
| | By: /s/ Jennifer M. Pugliano |
| | |
|
| | Title: | Account Officer |
|
| | Notice Address and Payment
Office:
500 Woodward Avenue
Detroit, Michigan 48226
Attention:
Telephone: (313) 222-9644
Fax: (313) 222-9514 |
|
| | CREDIT SUISSE FIRST BOSTON,
as a Lender |
|
| | By: /s/ Bill O'Daly |
| | |
|
| | Title: | Vice President |
|
| | By: /s/ David M. Koczan |
| | |
|
| | Title: | Assistant Vice President |
|
| | Notice Address and Payment
Office:
Telephone:
Fax: |
|
| | FIFTH THIRD BANK, as a Lender |
|
| | By: /s/ Megan S. Heisel |
| | |
|
| | Title: | Corporate Banking Officer |
|
| | Notice Address and Payment
Office:
Fifth Third Bank
38 Fountain Square Plaza
MD 109054
Cincinnati, Ohio 45263
Telephone: (513) 744-8662
Fax: (513) 744-5947 |
|
| | FIRSTAR BANK, National Association,
as a Lender |
|
| | By: /s/ R. Neltner |
| | |
|
| | Title: | Senior Vice President |
|
| | Notice Address and Payment
Office:
425 Walnut St. Location 8160
Cincinnati, Ohio 45201-8313
Attention: THomas D. Gibbons
Telephone: (513) 287-8313
Fax: (513) 632-2068 |
|
| | KEYBANK NATIONAL ASSOCIATION,
as a Lender |
|
| | By: /s/ Brendan A. Lawler |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
127 Public Square
Mail Code OH01-27-0606
Cleveland, Ohio 44114
Attention: Thomas J. Purcell
Telephone: (216) 689-4439
Fax: (216) 689-4981 |
|
| | MELLON BANK, N.A. as a Lender |
|
| | By: /s/ John Ritz |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
One Mellon Center
Room 4530
Pittsburgh, PA 15258
Attention: Ryan F. Busch
Telephone: (412) 234-0733
Fax: (412) 236-1914 |
|
| | MORGAN GUARNATY TRUST COMPANY OF
NEW YORK, as a Lender |
|
| | By: /s/ Robert A. Krasnow |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
Morgan Guaranty Trust Company
of New York
c/o J.P. Morgan
One Bush Street, Suite 1380
San Francisco, CA 94104
Attention: William Rindfuss
Telephone: (415) 371-4976
Fax: (415) 371-4881 |
|
| | PNC BANK, as a Lender |
|
| | By: /s/ Bruce A. Kitner |
| | |
|
| | Title: | Vice President |
|
| | Notice Address and Payment
Office:
PNC Center
P.O.Box 1198
Cincinnati, Ohio 45201
Attention:Bruce A. Kitner
Telephone: (513) 651-7189
Fax: (513) 651-8951 |
