EXHIBIT 10.20
AMENDMENT NUMBER TWO, dated as of January 31, 2000 ("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 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"), Cincinnati GrundstUcksverwaltung GMBH, a German corporation
("CG" and, together with "MKE", the "German Borrowers"; the German Borrowers,
collectively, with the Company, the "Borrowers"), the lenders listed on Schedule
2.1 thereto (each, a "Lender" and, collectively, the "Lenders") and Bankers
Trust Company, a New York banking corporation ("BTCo"), as a Lender and as agent
for the Lenders (in such capacity, including its successors and permitted
assigns, the "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 in order to permit a German entity
and a Dutch entity to be named as additional Borrowers, whose Obligations will
be guaranteed by the Company and to delete CG as a Borrower;
WHEREAS, the Company has requested that the Agent and the Lenders amend or
waive compliance with certain covenants of the Credit Agreement;
WHEREAS, the Company has requested an increase to the Alternate Currency
Sublimit available to the Foreign Subsidiary Borrowers;
WHEREAS, the Company has requested a Swingline facility, available to the
Company in Dollars and to the Foreign Subsidiary Borrowers in euros and such
Swingline facility would not increase the Total Revolving Loan Commitment;
WHEREAS, the Agent and the Requisite 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.
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The Credit Agreement is amended as hereinafter provided in this Section
ONE, effective as of January 31, 2000 (the "Amendment Effective Date");
provided, that with respect to the sections being amended to permit (x) Milacron
B.V. as an additional Borrower, such sections shall not be amended until the
conditions set forth in Section Four (a), (b)(i), (e), (f) and (g) of this
Amendment shall have been satisfied and (y) Milacron GmbH as an additional
Borrower, such sections shall not be amended until the conditions set forth in
Section Four (a), (b)(ii), (c), (h) and (g) of this Amendment shall have been
satisfied.
1.1. Amendment to Section 1 (Definitions) of the Credit Agreement
(a) Section 1.1 shall be amended by adding the following new definition in
appropriate alphabetical order:
"Amendment No. 2" shall mean Amendment Number TWO dated as of January
31, 2000 to this Agreement.
"Mandatory Cost" means the cost imputed to each Lender(s) of
compliance with (a) the cash ratios and special deposit requirements of the
Bank of England and/or the banking supervision or other costs imposed by
the Financial Services Authority, and (b) any reserve asset requirements of
the European Central Bank.
"Maximum Swingline Amount" shall mean $15,000,000.
"Milacron B.V." shall mean Milacron B.V. a Dutch corporation and
wholly-owned Subsidiary of the Company.
"Milacron GmbH" shall mean Milacron Metalworking Technologies Holding
GmbH, a German corporation, a direct, wholly-owned Subsidiary of Milacron
B.V. and an indirect, wholly-owned Subsidiary of the Company.
"Overnight Euro Rate" on any date shall mean the offered quotation to
first-class banks in the London interbank market by BTCo for Euro overnight
deposits of amounts in immediately available funds comparable to the
outstanding principal amount of the Euro Swingline Loan of BTCo as of 11:00
a.m. (London time) on such date, provided that in the event the Agent has
made any determination pursuant to Section 2.10(a)(i) in respect of Euro
Sterling Swingline Loans the Overnight Euro Rate determined pursuant to
this definition shall instead be the rate determined by BTCo as the
all-in-cost of funds for BTCo to fund such Euro Swingline Loan.
"Overnight Euro Rate Loan" shall mean each Euro Swingline Loan.
"Percentage" in the case of a Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the
Total Revolving Loan Commitment at such time; provided that if the
Percentage of any Lender is to be determined after the Total Revolving Loan
Commitment has been terminated, then the Percentages of the Lenders shall
be determined immediately prior (and without giving effect) to such
termination.
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.1(e).
(b) Section 1.1 shall be further amended as follows:
"Borrower" shall be amended and restated by deleting the definition
thereof and replacing it with the following:
"Borrowers" shall mean the Company and each of the Foreign Subsidiary
Borrowers.
"Certain Existing Indebtedness" shall be amended and restated by
deleting the definition thereof and replacing it with the following:
"Certain Existing Indebtedness" shall mean any Indebtedness of the
Company in an aggregate principal amount equal to or greater than
$100,000,000.
"Dividends" shall be deleted in its entirety.
"German Borrowers" shall be amended and restated by deleting the
definition thereof and replacing it with the following new definition and
all references to "German Borrowers" shall be replaced with "Foreign
Subsidiary Borrowers" throughout the Credit Agreement.
"Foreign Subsidiary Borrowers" shall mean as the context so requires
(i) MKE, (ii) Milacron GmbH, (iii) Milacron B.V. or (iv) each of MKE,
Milacron GmbH and Milacron B.V.
"Fixed Charges" shall be deleted in its entirety.
"Loan" shall be amended and restated by deleting the definition
thereof and "Loan or" in Section 2.1(a) and replacing the definition with
the following:
"Loan" shall mean a Revolving Loan or Swingline Loan.
"Significant Subsidiary" shall be amended by deleting clause (z) and
substituting "(z) is a Foreign Subsidiary Borrower." therefor.
"Type" shall be amended by inserting "or Swingline Loan" immediately
following the words "Revolving Loan."
1.2. Amendment to Section 2 (Amount and Terms of Loans) to the Credit
Agreement
Section 2.1(b) shall be amended by deleting "$125,000,000" immediately
following the words "Deutsche Mark Revolving Loans, would exceed" and
substituting "$200,000,000" therefor.
Section 2.1 shall be amended by inserting the following at the end of
clause (c):
"(d) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to
time on and after the Amendment Effective Date and prior to the Swingline
Expiry Date, a loan or loans to the Company (each, a "Dollar Swingline
Loan" and, collectively, the "Dollar Swingline Loans"), which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) shall be
denominated in Dollars, (iii) may be repaid and reborrowed in accordance
with the provisions hereof, (iv) shall not exceed in aggregate principal
amount at any time outstanding, when combined with the aggregate principal
amount of all Loans then outstanding (including the Dollar Equivalent of
all Deutsche Mark Loans then outstanding) and the Letter of Credit
Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time,
an amount equal to the Total Revolving Loan Commitment then in effect and
(v) shall not exceed in aggregate principal amount at any time outstanding,
when added to the Dollar Equivalent of the aggregate principal amount of
any Euro Swingline Loan then outstanding the Maximum Swingline Amount. BTCo
will not make a Dollar Swingline Loan after it has received written notice
from any Borrower or the Requisite Lenders stating that a Default or an
Event of Default exists until such time as BTCo shall have received a
written notice of (A) rescission of such notice from the party or parties
originally delivering the same or (B) a waiver of such Default or Event of
Default from the Requisite Lenders.
(e) Subject to and upon the terms and conditions set forth herein,
BTCo in its individual capacity agrees to make, at any time and from time
to time on or after the Amendment Effective Date and prior to the Swingline
Expiry Date, a loan or loans (each, a "Euro Swingline Loan" and,
collectively, the "Euro Swingline Loans" and, together with the Dollar
Swingline Loans, the "Swingline Loans") to the Foreign Subsidiary
Borrowers, which Euro Swingline Loans (i) shall be made and maintained as
Overnight Euro Rate Loans, (ii) shall be made and maintained in Euros,
(iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of all Loans
then outstanding and the Letter of Credit Outstanding at such time to
exceed the Total Revolving Loan Commitment at such time and (v) shall not
exceed in aggregate principal amount at any time outstanding (taking the
Dollar Equivalents of all amounts in currencies other than Dollars), when
added to the aggregate principal amount of any Dollar Swingline Loan then
outstanding, the Maximum Swingline Amount. BTCo shall not make any Euro
Swingline Loan after it has received written notice from any Borrower or
the Requisite Lenders stating that a Default or an Event of Default exists
and is continuing until such time as BTCo shall have received written
notice (A) of rescission of all such notices from the party or parties
originally delivering such notice or notices or (B) of the waiver of such
Default or Event of Default by the Requisite Lenders.
(f) On any Business Day, BTCo may, in its sole discretion, give notice
to the Revolving Lenders and the Borrowers that its outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans (provided that
each such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 7.7), in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all Lenders pro rata based on each Lender's
Percentage, and the proceeds thereof shall be applied directly to repay
BTCo for such outstanding Swingline Loans. Each Lender hereby irrevocably
agrees to make Base Rate Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the amount of the Mandatory Borrowing may not
comply with the minimum borrowing amount otherwise required hereunder, (ii)
whether any conditions specified in Section 4 are then satisfied, (iii)
whether a Default or an Event of Default has occurred and is continuing,
(iv) the date of such Mandatory Borrowing and (v) any reduction in the
Total Revolving Loan Commitment after any such Swingline Loans were made.
In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code in
respect of the Company), each Lender (other than BTCo) hereby agrees that
it shall forthwith purchase from BTCo (without recourse or warranty) such
assignment of the outstanding Swingline Loans as shall be necessary to
cause the Revolving Lenders to share in such Swingline Loans ratably based
upon their respective Percentages; provided that all interest payable on
the Swingline Loans shall be for the account of BTCo until the date the
respective assignments are purchased and, to the extent attributable to the
purchased assignment, shall be payable to the Lender purchasing same from
and after such date of purchase."
Section 2.3 shall be amended by inserting the following at the end of
clause (c):
"(d)(i) Whenever the applicable Borrower desires to make a Borrowing
of Swingline Loans hereunder, such Borrower shall give the Swingline Lender
not later than (x) in the case of Dollar Swingline Loans, 2:00 p.m. (New
York time) and (y) in the case of Euro Swingline Loans, 12:00 noon (London
time), on the date that a Swingline Loan is to be made, written notice or
telephonic notice promptly confirmed in writing of each Swingline Loan to
be made hereunder. Each such notice shall be irrevocable and specify (A)
the date of Borrowing (which shall be a Business Day), (B) the aggregate
principal amount of the Swingline Loans to be made pursuant to such
Borrowing (stated in the relevant currency) and (C) whether the respective
Swingline Loans shall constitute Dollar Swingline Loans or Euro Swingline
Loans."
Section 2.8 shall be amended by inserting the following at the end of
clause (h):
(i) The Foreign Borrowers hereby agree to pay interest in respect of
the unpaid principal amount of each Euro Swingline Loan from the date the
proceeds thereof are made available to the applicable Foreign Borrower
until the maturity thereof (whether by acceleration, prepayment or
otherwise) at a rate per annum which shall be equal to the sum of the
Applicable Borrowing Margin for Alternate Currency Loans as in effect from
time to time plus the Overnight Euro Rate in effect from time to time
during the period such Euro Swingline Loan is outstanding plus any
Mandatory Costs.
1.3. Amendment to Section 6 (Negative Covenants) to the Credit Agreement.
Section 6.4 shall be amended by deleting the text thereof in its entirety
and replacing it with the following:
"6.4 Total Interest Coverage Ratio. The Company shall not permit at any
time the ratio of (i) Consolidated EBITDA of the Company to (ii) Interest
Expense for the most recently completed four fiscal quarter period of the
Company to be less than 3.00 to 1.00."
Section 6.9 shall be amended by deleting it in its entirety.
SECTION TWO - WAIVER.
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The Lenders hereby waive any failure by the Company to comply with Section
6.4 for any four fiscal quarter period ending on or prior to the Amendment
Effective Date to the extent such failure results from the exclusion of the
Dollar amount of share repurchases in the calculation of Fixed Charges.
SECTION THREE - REPRESENTATIONS AND WARRANTIES.
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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 majority of 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 and each 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 FOUR - CONDITIONS PRECEDENT.
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Upon the fulfillment of the following conditions, the amendments
contemplated by this Amendment to permit the new additional Borrowers shall
become effective:
(a) The Company shall have delivered to the Agent a certificate of the
Secretary of the Company, dated the Amendment Effective Date and attaching
resolutions of its Board of Directors in form and substance satisfactory to the
Agent approving and authorizing the execution, delivery and performance of this
Amendment, signature and incumbency certificates and such other documents that
the Agent may reasonably request.
(b) The Company shall have delivered to the Agent the signature
certificate(s) of the persons authorized by (i) Milacron B.V. and (ii) Milacron
GmbH to execute Amendment No. 2.
(c) The Company shall have delivered to the Agent such documents and
certificates as the Agent or its counsel may reasonably request relating to the
organization and good standing of Milacron GmbH.
(d) The Company shall have delivered to the Agent an opinion from Hengeler
Mueller Weitzel Wirtz, special German counsel to Milacron GmbH, which opinion
shall be dated as of the Amendment Effective Date, and shall cover such matters
as shall be reasonably requested or approved by the Agent.
(e) The Company shall have delivered to the Agent such documents and
certificates as the Agent or its counsel may reasonably request relating to the
organization and good standing of Milacron B.V.
(f) The Company shall have delivered an opinion to the Agent from Carron &
Stevens/Baker & McKenzie (the Netherlands), special Dutch counsel to Milacron
B.V., which opinion shall be dated as of the Amendment Effective Date, and shall
cover such matters as shall be reasonably requested or approved by the Agent.
(g) The Company shall have duly authorized, executed and delivered to the
Agent a Company Guarantee, dated as of the Amendment Effective Date, pursuant to
which the Company guarantees the Obligations of Milacron B.V. and Milacron GmbH
owing to the Lenders, in substantially the form of Exhibit F to the Credit
Agreement.
SECTION FIVE - MISCELLANEOUS.
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(a) Upon execution of this Amendment, Milacron B.V. shall be a party to the
Credit Agreement and shall be a Borrower for all purposes thereof, and Milacron
B.V. hereby agrees to be bound by all applicable provisions of the Credit
Agreement.
(b) Upon execution of this Amendment, Milacron GmbH shall be a party to the
Credit Agreement and shall be a Borrower for all purposes thereof, and Milacron
GmbH hereby agrees to be bound by all applicable provisions of the Credit
Agreement.
(c) 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.
(d) 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.
(e) 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.
(f) THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
(g) 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.
(h) CG, the Agent and each Lender hereby irrevocably terminate the
Commitments and Obligations of the Agent and each Lender with respect to CG
under the Credit Agreement. The Agent and each Lender hereby release CG from
further liability or Obligation under the Credit Agreement.
Amendment No. 2
MILACRON INC.
By:______________________________
Title: Vice President & Treasurer
Notice Address:
Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
FAX: (513) 487-5586
MILACRON KUNSTSTOFF-MASCHINEN
EUROPA GmbH,
By:______________________________
on basis of Power of Attorney
dated as of December 15, 1998
Notice Address:
c/o Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45206
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
FAX: (513)487-5586
CINCINNATI GRUNDSTUCKSVERWALTUNG
GmbH,
By:______________________________
on basis of Power of Attorney
dated as of March 15, 1999
Amendment No. 2
MILACRON METALWORKING TECHNOLOGIES
HOLDING GmbH
By:______________________________
on basis of Power of Attorney
dated as of February 2, 2000
Notice Address:
c/o Milacron Inc.
2090 Florence avenue
Cincinnati, Ohio 45209
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
FAX: (513) 487-5586
MILACRON B.V.
By:______________________________
on basis of Power of Attorney
dated as of January 31, 2000
Notice Address:
c/o Milacron Inc.
2090 Florence Avenue
Cincinnati, Ohio 45209
Attention: Robert P. Lienesch
Telephone: (513) 487-5588
FAX: (513) 487-5586
Amendment No. 2
BANKERS TRUST COMPANY,
as a Lender and as Agent
By:______________________________
Title:
Notice Address and Payment Office:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention:
Telephone:
FAX:
Amendment No. 2
ABN AMRO BANK N.V., as a Lender
By:______________________________
Title: Vice President
By:______________________________
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
One PPG Place
Suite 2950
Pittsburgh, PA 15222
Attention: Pat Pastore
Telephone: (412) 566-2297
FAX: (412) 566-2266
Amendment No. 2
BANK OF AMERICA N.A., as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
Amendment No. 2
BANK ONE INDIANA, N.A., as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
Amendment No. 2
COMERICA BANK, as a Lender
By:______________________________
Title:
Notice Office and Payment Office:
500 Woodward Avenue
Detroit, Michigan 48226
Attention:
Telephone: (313) 222-9644
FAX: (313) 222-9514
Amendment No. 2
CREDIT LYONNAIS CHICAGO BRANCH,
as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
227 West Monroe Street
Chicago, Illinois 60606
Attention: Mary Ann Klemm
Telephone: (312) 641-0500
FAX: (312) 641-0527
Amendment No. 2
FIRSTAR BANK, National Association,
as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
425 Walnut St. Location 8160
Cincinnati, Ohio 45201-1038
Attention: Thomas D. Gibbons
Telephone: (513) 287-8313
FAX: (513) 632-2068
Amendment No. 2
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:______________________________
Title:
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
Amendment No. 2
MELLON BANK, N.A., as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
One Mellon Center
500 Grant Street
Room 4530
Pittsburgh, PA 15258
Attention: Ryan F. Busch
Telephone: (412) 234-0733
FAX: (412) 236-1914
Amendment No. 2
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as a Lender
By:______________________________
Title: Vice President
Notice Address and Payment Office:
Morgan Guaranty Trust Company
of New York
c/o J.P. Morgan Services Inc.
500 Stanton Christian Road
P.O. Box 6070
Newark, DE 19713-3107
Attention: Michael Massena
Telephone: (302) 643-4217
FAX: (302) 634-1852
Amendment No. 2
PNC BANK, as a Lender
By:______________________________
Title:
Notice Address and Payment Office:
PNC Center
P.O. Box 1198
Cincinnati, Ohio 45201
Attention:
Telephone:
FAX: