EXHIBIT 99.2
EXECUTION COPY
AMENDMENT NUMBER NINE, dated as of August 13, 2003 (this
"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, Amendment No. 4 dated as of
August 8, 2001, Amendment No. 5 dated as of September 30, 2001,
Amendment No. 6 dated as of March 13, 2002, the letter agreement dated
as of May 3, 2002, the two letter agreements dated as of June 17,
2002, Amendment No. 7 dated as of November 6, 2002, the Waiver and
Agreement dated as of December 30, 2002 and Amendment No. 8 dated as
of February 11, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among MILACRON INC., a
Delaware corporation (the "Borrower" and the "Company"), MILACRON
KUNSTSTOFFMASCHINEN EUROPA GMBH, a German limited liability company
("MKE"), and MILACRON B.V., a Dutch corporation ("Milacron B.V." and,
together with MKE, 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"), Deutsche Bank Trust Company
Americas (formerly known as Bankers Trust Company), a New York banking
corporation ("DBTCA"), 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
(the "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 and provide certain waivers;
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 agree as follows:
SECTION ONE - AMENDMENTS
Subject to the prior satisfaction of the condition precedent set forth
in Section Three hereof, the Credit Agreement is amended as hereinafter provided
in this Section One, effective as of the Amendment No. 9 Effective Date (as
defined below).
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1.1. Amendments to Section 1 (Definitions) of the Credit Agreement.
Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions in appropriate alphabetical order:
"`Amendment No. 9' shall mean Amendment Number Nine dated as of August
13, 2003, to this Agreement."
"`Amendment No. 9 Effective Date' shall have the meaning set forth in
Amendment No. 9."
"`Excess Foreign Cash' means cash and cash equivalents (as defined in
the Company's financial statements filed with the Securities and Exchange
Commission) of Foreign Subsidiaries that the Company has reasonably determined
in good faith can be transferred to the Company within two Business Days (and
that would be Unencumbered Domestic Cash and Cash Equivalents upon receipt by
the Company) without (x) violating any law, regulation or Contractual
Obligation, (y) resulting in any significant cash tax or significant current
financial liability or (z) impairing the liquidity of any Foreign Subsidiary in
any significant respect."
"`Net New Borrowings' means an amount equal to (i) the aggregate
amount of Revolving Loans borrowed after the Amendment No. 9 Effective Date
(excluding Revolving Loans to the extent used to reimburse draws under Letters
of Credit) less (ii) the aggregate amounts used to repay Revolving Loans or
reimburse Letter of Credit draws (excluding reimbursements to the extent made
with proceeds of Revolving Loans) after the Amendment No. 9 Effective Date."
"`Unencumbered Domestic Cash and Cash Equivalents' shall mean all cash
and cash equivalents (as defined in the Company's financial statements filed
with the Securities and Exchange Commission) of the Company and its Domestic
Subsidiaries that is (i) located in the United States and (ii) is not subject to
any pledge, deposit arrangement or other encumbrance or restriction that would
reasonably be expected to interfere with its use, other than pursuant to the
Security Documents (provided that, for purposes of this clause (ii), cash and
cash equivalents pledged or deposited to collateralize Letters of Credit or
reimbursement obligations relating thereto ("Letter of Credit Collateral") shall
not be considered Unencumbered Domestic Cash and Cash Equivalents); provided
that in no event shall more than an aggregate of $5.0 million of such cash and
cash equivalents (other than Letter of Credit Collateral) or such greater amount
up to $15.0 million as shall be approved by the Agent (such approval not to be
unreasonably withheld or delayed) at any time be deemed not to be Unencumbered
Domestic Cash and Cash Equivalents by virtue of any such pledge, deposit
arrangement or other encumbrance or restriction as provided in this clause
(ii)."
Section 1.1 of the Credit Agreement is hereby further amended as
follows:
The definition of the term "Consolidated EBITDA" is hereby amended by
(1) deleting the amount "$13.0 million" from clause (i)(z) thereof and replacing
it with "$28.5 million", (2) deleting the date "September 30, 2003" in the
definition thereof immediately following the words "have not been disposed of on
or before" and replacing
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it with "December 31, 2003", (3) deleting the date "September 30, 2003" in the
definition thereof immediately following the words "has not been disposed of on
or before" and replacing it with "December 31, 2003" and (4) adding the
following sentence at the end of such definition:
"For purposes of Section 6.15, Consolidated EBITDA shall not include
certain amounts that may be recovered by the Company in connection with certain
existing warranty, patent infringement/royalty and related claims, which amounts
and claims have been notified by the Company in writing to the Agent."
The definition of the term "Consolidated Net Worth" is hereby amended
by deleting the amount "$13.0 million" from clause (iii)(z) thereof and
replacing it with "$28.5 million".
1.2. Amendments to Section 2 (Amount and Terms of Loans) of the Credit
Agreement.
The fourth sentence of Section 2.1(a) of the Credit Agreement is
hereby amended by deleting clauses (vii) and (viii) thereof in their entirety
and inserting in lieu thereof the following:
"(vii) on the Amendment No. 9 Effective Date, if the Total Revolving
Loan Commitment shall then exceed $65,000,000 (plus the aggregate increases in
the Total Revolving Loan Commitment pursuant to Section 11.21), the Total
Revolving Loan Commitment shall be permanently reduced to $65,000,000 (plus the
aggregate increases in the Total Revolving Loan Commitment pursuant to Section
11.21) and (viii) on December 15, 2003, if the Total Revolving Loan Commitment
shall then exceed $55,000,000 (plus the aggregate increases in the Total
Revolving Loan Commitment pursuant to Section 11.21), the Total Revolving Loan
Commitment shall be permanently reduced to $55,000,000 (plus the aggregate
increases in the Total Revolving Loan Commitment pursuant to Section 11.21)".
1.3. Amendments to Section 4 (Conditions to Revolving Loans and
Letters of Credit) of the Credit Agreement.
Section 4.1 of the Credit Agreement is hereby amended by adding the
following clause as new subsection (d) thereof:
"(d) The Company shall not furnish a Notice of Borrowing requesting a
Revolving Loan (excluding a deemed request pursuant to Section 2.14(d)) unless
it has determined in good faith that Unencumbered Domestic Cash and Cash
Equivalents is expected to be on the Funding Date (after giving effect to (x)
disbursements to third parties to be made on or prior to the Funding Date, (y)
receipts of funds from third parties for which the Company has received
reasonably satisfactory confirmation prior to 9:00 a.m. on the date of such
Notice of Borrowing that a wire transfer of such funds has been made for value
on or prior to the Funding Date or that such Funds have been received in the
Company's lockbox accounts and will be available on or prior to the Funding Date
and (z) any Excess Foreign Cash that will be received by the Company on or prior
to the Funding Date, but without giving effect to such Revolving Loan), less
than $5.0 million;
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and the furnishing by the Company of such a Notice of Borrowing shall be deemed
to constitute a representation and warranty of the Company that such a
determination has been made. Immediately prior to furnishing any such Notice of
Borrowing, the Company will use commercially reasonable efforts to transfer, and
to cause its Subsidiaries to transfer, any Excess Foreign Cash to the Company in
the United States so that such Excess Foreign Cash is Unencumbered Domestic Cash
and Cash Equivalents. In the event that Unencumbered Domestic Cash and Cash
Equivalents at the end of any Business Day exceeds $10.5 million, the Company
shall on the following Business Day repay Revolving Loans in an amount equal to
the lesser of (x) the amount by which such Unencumbered Domestic Cash and Cash
Equivalents exceeds $10.0 million and (y) the amount of Net New Borrowings (and
for the purposes of any such repayment, the notice periods and minimum amounts
set forth in Section 3.2 shall be inapplicable); provided that such repayment
shall not be required if the Company determines in good faith that Unencumbered
Domestic Cash and Cash Equivalents is expected to be less than $10.5 million at
the end of such next Business Day (after giving effect to the types of
disbursements and receipts described in the first section of this paragraph
(d))"
1.4. Amendments to Section 5 (Affirmative Covenants) of the Credit
Agreement.
Effective as of March 30, 2003, Section 5.6 of the Credit Agreement is
hereby deleted in its entirety and replaced with "5.6 [Deleted]".
Section 5.11 of the Credit Agreement is hereby deleted in its entirety
and replaced with "5.11 [Deleted]".
1.5. Amendments to Section 6 (Negative Covenants) of the Credit
Agreement.
Effective as of March 30, 2003, Section 6.4 of the Credit Agreement is
hereby deleted in its entirety and replaced with "6.4 [Deleted]".
Section 6.13 of the Credit Agreement is hereby amended by deleting the
amount "$15.0 million" from clause (a) of the final sentence thereof and
replacing it with "$11.0 million".
Section 6.15 of the Credit Agreement is hereby amended by replacing
the dollar amounts opposite the dates September 30, 2003 and December 31, 2003,
respectively, with the amounts "$22.7 million" and "$26.0 million",
respectively.
Section 6.16 of the Credit Agreement is hereby amended by deleting
therefrom the words "has been reduced to $75.0 million or less" and inserting in
lieu thereof the words "has been permanently terminated and all Revolving Loans
have been repaid and all Letters of Credit have expired or been cash
collateralized in accordance with Section 2.14."
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1.6. Amendments to Section 8 (Representations, Warranties and
Agreements) of the Credit Agreement.
Section 8.2 of the Credit Agreement is hereby amended by replacing the
date "December 31, 2002" with the date "June 30, 2003".
SECTION TWO - AGREEMENT AND WAIVER
2.1. Agreement. Notwithstanding anything to the contrary in the Credit
Agreement, the letter agreement dated as of May 3, 2002, the two letter
agreements dated as of June 17, 2002, Amendment No. 7 or the Waiver and
Agreement dated as of December 30, 2002, each of the parties hereto hereby
agrees that the only scheduled reductions in the Total Revolving Loan Commitment
that shall be required to be made shall be those required by the fourth sentence
of Section 2.1(a) of the Credit Agreement as amended hereby.
2.2. Waiver. Any non-compliance by the Borrowers on or after March 30,
2003 with Section 5.6 or Section 6.4 of the Credit Agreement, any related
non-compliance by the Borrowers with Section 5.1 or Section 5.5 of the Credit
Agreement and any Default that may have resulted therefrom are hereby waived.
SECTION THREE - CONDITION PRECEDENT
This Amendment shall become effective (and provisions hereof stated to
be effective as of earlier dates shall be deemed to have been effective as of
and from those dates) as of the date first written above upon the satisfaction
in full of the condition precedent (the "Amendment No. 9 Effective Date") that
the Agent shall have received counterparts of this Amendment that, when taken
together, bear the signatures of the Borrowers and the Requisite Lenders.
SECTION FOUR - 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) Each of the Company, MKE and Milacron B.V. 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;
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(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 and Milacron B.V. by a duly authorized officer or
attorney-in-fact of the Company, MKE or Milacron B.V., as the case may be, and
constitutes a legal, valid and binding obligation of the Company and each of MKE
or Milacron B.V., 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;
(d) The execution, delivery and performance of this Amendment will not
violate (i) any provision of law applicable to the Company, MKE or Milacron B.V.
or (ii) contractual obligations of the Company, MKE or Milacron B.V., except in
the case of clause (i) or (ii), such violations that would not have,
individually or in the aggregate, a Material Adverse Effect; and
(e) On and as of the Amendment No. 9 Effective Date, after giving
effect to this Amendment, no Default or Event of Default has occurred and is
continuing.
SECTION FIVE - MISCELLANEOUS
(a) The Company shall pay in cash within two Business Days after the
Amendment No. 9 Effective Date to each Lender that executes and delivers a
signature page to this Amendment not later than the close of business (New York
City time) on the date hereof a work fee of $5,000. Without limiting or amending
the provisions of Section 11.3 of the Credit Agreement, the Company shall pay
not later than August 29, 2003 all out-of-pocket fees and expenses of the Agent
(including the reasonable fees of counsel to the Agent) in connection with this
Amendment and related matters that have been invoiced through August 22, 2003.
(b) Except as herein expressly amended, agreed or waived, 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.
(c) All references to the Credit Agreement shall mean the Credit
Agreement as amended as of the Amendment No. 9 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.
(d) 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.
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(e) 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.
(f) Except as set forth herein, 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.
[SIGNATURES ON THE FOLLOWING PAGE]
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MILACRON INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President -
Finance and Chief
Financial Officer
Notice Address:
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
MILACRON KUNSTSTOFFMASCHINEN EUROPA GMBH
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President -
Finance and Chief
Financial Officer
Notice Address:
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
MILACRON B.V.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President -
Finance and Chief
Financial Officer
Notice Address:
Milacron Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Amendment No. 9
ABN AMRO BANK N.V., as a Lender,
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
Amendment No. 9
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender and as the Agent,
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Amendment No. 9
PNC BANK, NATIONAL ASSOCIATION,
as a Lender,
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Amendment No. 9
JPMORGAN CHASE BANK (formerly
known as the Chase Manhattan Bank),
as a Lender,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Amendment No. 9
KEYBANK NATIONAL ASSOCIATION,
as a Lender,
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Amendment No. 9
BANK ONE, INDIANA, N.A., as a Lender,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: First Vice President
Amendment No. 9
COMERICA BANK, as a Lender,
By: /s/ Xxxxxxx X. Judge
-------------------------------------
Name: Xxxxxxx X. Judge
Title: Vice President
Amendment No. 9
FIFTH THIRD BANK, as a Lender,
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Amendment No. 9
U.S. BANK NATIONAL ASSOCIATION
(formely known as Firstar Bank, National
Association), as a Lender,
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Amendment No. 9
SOF Investment, as a Lender,
By:
-------------------------------------
Name:
Title:
Amendment No. 9
X. X. XXXX LAMINAR PORTFOLIOS,
L.L.C., as a Lender,
By:
-------------------------------------
Name:
Title:
Amendment No. 9
CREDIT SUISSE FIRST BOSTON,
as a Lender,
By: /s/ Xxxx X'Xxxx
-------------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Associate
