Exhibit 10.3
SECOND AMENDMENT TO SENIOR SECURED,
SUPER-PRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This SECOND AMENDMENT TO SENIOR SECURED,
SUPER-PRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT, dated as of
July 22, 2009 (this “ Amendment ”), by and among
MILACRON INC., a Delaware corporation (“ Parent
”), CIMCOOL INDUSTRIAL PRODUCTS INC., a Delaware corporation
(“ Cimcool ”), MILACRON MARKETING COMPANY, an
Ohio corporation (“ Marketing ”), MILACRON
PLASTICS TECHNOLOGIES GROUP INC., a Delaware corporation (“
Plastics ”), and D-M-E COMPANY, a Delaware corporation
(“ D-M-E Company ”) (Parent, Cimcool, Marketing,
Plastics and D-M-E Company are collectively referred to herein as
the “ Borrowers ” and individually as a “
Borrower ”); the other Credit Parties signatory hereto
as Guarantors; GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as administrative agent for Lenders (“
Agent ”), and the other Lenders (as defined below)
signatory hereto from time to time.
WHEREAS, Borrowers, Guarantors, the
lenders party thereto from time to time (“ Lenders
”) and Agent are parties to that certain Senior Secured,
Super-Priority Debtor-in-Possession Credit Agreement, dated as of
March 11, 2009, as amended by that certain First Amendment to
Senior Secured, Super-Priority Debtor-in-Possession Credit
Agreement, dated as of May 12, 2009 (as may be further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), pursuant to which Lenders
have agreed to make, and have made, certain loans and other
financial accommodations to Borrowers;
WHEREAS, Borrowers and Guarantors have
requested that Agent and Lenders amend certain terms and conditions
of the Credit Agreement, as more fully set forth herein;
and
WHEREAS, Agent and Lenders have agreed to
make such amendments to the Credit Agreement subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1.
Definitions .
All terms used herein which are defined
in the Credit Agreement and not otherwise defined herein are used
herein as defined therein.
2.
Amendments to Credit
Agreement .
(a)
Section 6.5 of the Credit Agreement,
Loans, Advances, Investments, Etc. , is hereby amended and
modified by deleting subsection (n) of such Section in its entirety
and inserting the following in lieu hereof:
“(n)
investments by a Credit Party in Foreign
Subsidiaries in an amount not to exceed, $8,000,000 (provided that
notwithstanding the foregoing, the aggregate amount of investments
permitted under this clause (n) shall not exceed $6,500,000 without
the prior written consent of Agent) during
the term of this Agreement so long as the
proceeds of such investment are directly, or indirectly, applied by
such Foreign Subsidiary in accordance with the DIP
Budget.”
(b)
Annex A to the Credit Agreement,
Definitions , is hereby amended and modified by deleting
subsection (i) from the definition of “Permitted
Indebtedness” in its entirety and inserting the following in
lieu hereof:
“(i)
the following intercompany Indebtedness:
(i) Indebtedness of any Domestic Credit Party to any other
Domestic Credit Party, in each case to the extent such Indebtedness
is (A) evidenced by a promissory note with terms and provisions
reasonably acceptable to Agent, (B) promptly pledged to Agent
pursuant to the Pledge Agreement, and (C) subject to an
Intercompany Subordination Agreement or such other subordination
provisions acceptable to Agent; (ii) Indebtedness of any Foreign
Subsidiary to any other Foreign Subsidiary; (iii) Indebtedness of
any Domestic Subsidiary that is not a Credit Party to any other
Domestic Subsidiary that is not a Credit Party to the extent that
the aggregate principal amount of such Indebtedness outstanding at
any time does not exceed $250,000; (iv) unsecured Indebtedness of
any Credit Party owing to any Foreign Subsidiary resulting from
loans or advances made by a Foreign Subsidiary to a Credit Party,
to the extent such Indebtedness is subject to an Intercompany
Subordination Agreement or such other subordination provisions
acceptable to Agent; (v) unsecured Indebtedness of Parent owing to
Milacron Assurance in connection with the self-insurance program of
Parent and its Subsidiaries to the extent such Indebtedness (A) is
evidenced by a promissory note with terms and provisions reasonably
acceptable to Agent, (B) is subject to an Intercompany
Subordination Agreement or such other subordination provisions
acceptable to Agent, (C) will not be repaid in amounts in
excess of the amounts necessary to pay the obligations of Milacron
Assurance under the self-insurance program for the benefit of
Parent and the Subsidiaries permitted under Section 5.7
and (D) to the extent repaid by Parent to Milacron Assurance for
Milacron Assurance to make available to a Foreign Subsidiary in
respect of such self-insurance program, will result, prior to or
concurrently with such repayment, in Foreign Subsidiaries
remitting, transferring or otherwise repatriating funds to a Credit
Party in an aggregate US dollar amount equal to the amount repaid
by Parent for such purpose; and (vi) Indebtedness of any Foreign
Subsidiary owing to any Credit Party existing as of the Closing
Date and listed on Schedule 6.2 (but not the increase,
extension of maturity, refinancing or other modification thereof)
and as permitted by Section 6.5(n) ;”
3.
Conditions to Effectiveness
. This Amendment shall become
effective (the “ Amendment Effective Date ”)
upon satisfaction in full of the following conditions
precedent
(a)
Agent shall have received counterparts of
this Amendment that bear the signatures of each of Credit Parties,
Agent and Lenders;
(b)
Agent shall have received a copy of an
amendment (or similar agreement), in form and substance reasonably
satisfactory to Agent, duly executed by Credit Parties, DIP Term
Loan Agent, and DIP Term Loan Lenders amending the corresponding
provisions of the DIP Term Loan Agreement; and
(c)
Agent shall have received such other
information, documents, instruments or approvals as Agent may
require.
4.
Credit Parties’ Representations
and Warranties . Each
Credit Party represents and warrants to Agent and Lenders as
follows:
(a)
Such Credit Party (i) is duly organized,
validly existing and in good standing under the laws of the state,
province or other applicable jurisdiction of its organization and
(ii) has all requisite power, authority and legal right to execute,
deliver and perform this Amendment and to perform the Credit
Agreement, as amended hereby.
(b)
The execution, delivery and performance
by such Credit Party of this Amendment and the performance by such
Credit Party of the Credit Agreement, as amended hereby (i) have
been duly authorized by all necessary action,
