EXHIBIT 99.1
FIRST AMENDMENT TO FINANCING AGREEMENT
FIRST AMENDMENT TO FINANCING AGREEMENT, dated as of September 28,
2004 (this "Amendment"), among Milacron Inc., a Delaware corporation
("Milacron"), each subsidiary of Milacron listed as a borrower or a guarantor
on the signature pages thereto, the Lenders party thereto, JPMorgan Chase
Bank, as administrative agent and collateral agent for the Lenders (in each
such capacity, together with its successors in each such capacity, the
"Administrative Agent" and "Collateral Agent", respectively).
W I T N E S S E T H:
WHEREAS, Milacron, certain subsidiaries of Milacron, the Lenders
named therein, the Agents and the other parties thereto have entered into that
certain Financing Agreement dated as of June 10, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Financing
Agreement"; capitalized terms used herein but not otherwise defined herein
shall have the meanings given such terms in the Financing Agreement); and
WHEREAS, the Loan Parties have requested that the Lenders and the
Agents amend certain provisions of the Financing Agreement, and the Lenders
and the Agents are willing to amend such provisions to the Financing Agreement
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, each of the Loan Parties, the Lenders, and the Agents hereby
agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Amended Cumulative Consolidated EBITDA Covenant. The
table set forth in Section 7.03(b) of the Financing Agreement is hereby
amended and restated in its entirety to read as follows:
Cumulative Consolidated
Period EBITDA
------ ------
Three complete calendar months ending $8,000,000
September 30, 2004
Six complete calendar months ending
December 31, 2004 $24,000,000
Nine complete calendar months ending $32,300,000
Xxxxx 00, 0000
Xxxxxx complete calendar months ending $43,000,000
June 30, 2005
Twelve complete calendar months ending $48,400,000
September 30, 2005
ARTICLE II
CONDITIONS TO CLOSING
This Amendment shall become effective as of the date first written
above upon the satisfaction of the following conditions:
(a) First Amendment. Each Loan Party shall have delivered a
duly executed counterpart of this Amendment to the Agents.
(b) Officer's Certificate. The Loan Parties shall have
delivered to the Agents a certificate of a duly authorized officer of each
Loan Party dated the date of this Amendment, in form and substance
satisfactory to the Agents, to the effect that the representations and
warranties set forth in Section 3.3 hereof are true and correct as of such
date.
(c) Consent of Required Lenders. The Agents shall have received
in writing the consent of the Required Lenders to enter into this Amendment on
behalf of the Required Lenders.
(d) Amendment Fee. The Loan Parties shall have paid to the
Administrative Agent, in immediately available funds, for the pro rata account
of each of the Lenders party hereto, a nonrefundable amendment fee of $40,000.
(e) Agent Fees and Expenses. The Loan Parties shall have paid
all fees and expenses (including, without limitation, legal fees and expenses)
incurred by the Agents in connection with this Amendment and the other Loan
Documents to the extent invoiced and presented to the Administrative Borrower
on or prior to the date of this Amendment.
ARTICLE III
MISCELLANEOUS
Section 3.1 Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Agents or any Lender under the Loan Documents, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Loan Documents, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle any Loan Party to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Loan
Documents in similar or different circumstances. This Amendment shall
constitute a "Loan Document" for all purposes of the Financing Agreement and
all references to the Financing Agreement in any Loan Document shall mean the
Financing Agreement as amended hereby.
Section 3.2 No Representations by Lenders or Agent. Each Loan Party
hereby acknowledges that it has not relied on any representation, written or
oral, express or implied, by any Lender or any Agent, other than those
expressly contained herein, in entering into this Amendment.
Section 3.3 Representations of the Loan Parties. Each Loan Party
represents and warrants to the Agents and the Lenders that (i) after giving
effect to this Amendment, (a) the representations and warranties set forth in
the Loan Documents are true and correct in all respects on and as of the date
hereof with the same effect as though made on the date hereof, except to the
extent that such representations and warranties expressly relate to an earlier
date and (b) no Default or Event of Default has occurred and is continuing and
(ii) this Amendment has been duly executed and delivered by such Loan Party
and the Financing Agreement, as amended hereby, constitutes a legal, valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Section 3.4 Claims. Each Loan Party represents and warrants that it
has no defenses, offsets or counterclaims with respect to the indebtedness
owed by the Borrowers to the Lenders, other than in respect of deposits.
Section 3.5 Successors and Assigns. This Agreement shall be binding
upon the parties hereto and their respective successors and permitted assigns
and shall inure to the benefit of the parties hereto and the successors and
permitted assigns of the Lenders and the Agents.
Section 3.6 Headings. The headings and captions hereunder are for
convenience only and shall not affect the interpretation or construction of
this Amendment.
Section 3.7 Severability. The provisions of this Amendment are
intended to be severable. If for any reason any provision of this Amendment
shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
Section 3.8 Costs and Expenses. The Loan Parties agree to reimburse
the Agents for their reasonable out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of counsel
for the Agents.
Section 3.9 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment.
Section 3.10 GOVERNING LAW. THE WHOLE OF THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
Section 3.11 JURISDICTION, VENUE AND SERVICE. EACH LOAN PARTY HEREBY
IRREVOCABLY CONSENTS AND SUBMITS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF
ALL FEDERAL AND STATE COURTS
LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND CONSENTS THAT ANY
ORDER, PROCESS, NOTICE OF MOTION OR OTHER APPLICATION TO OR BY ANY OF SAID
COURTS OR A JUDGE THEREOF MAY BE SERVED WITHIN OR WITHOUT SUCH COURT'S
JURISDICTION BY REGISTERED MAIL OR BY PERSONAL SERVICE, PROVIDED A REASONABLE
TIME FOR APPEARANCE IS ALLOWED, IN CONNECTION WITH ANY ACTION OR PROCEEDING
ARISING OUT OF, UNDER OR RELATING TO THIS AMENDMENT. AT THE OPTION OF THE
AGENTS, UPON THE INSTRUCTIONS OF THE REQUIRED LENDERS, ANY LOAN PARTY MAY BE
JOINED IN ANY ACTION OR PROCEEDING COMMENCED BY THE AGENTS OR THE LENDERS
AGAINST ANY OTHER LOAN PARTY IN CONNECTION WITH OR BASED ON THIS AMENDMENT,
AND RECOVERY MAY BE HAD AGAINST ANY LOAN PARTY IN SUCH ACTION OR PROCEEDING OR
IN ANY INDEPENDENT ACTION OR PROCEEDING AGAINST ANY LOAN PARTY, WITHOUT ANY
REQUIREMENT THAT THE AGENTS OR THE LENDERS FIRST ASSERT, PROSECUTE OR EXHAUST
ANY REMEDY OR CLAIM AGAINST ANY OTHER LOAN PARTY. EACH LOAN PARTY HEREBY
IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF, UNDER OR RELATING TO THIS AMENDMENT
BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN THE COUNTY OF NEW YORK, STATE
OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW) ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
Section 3.12 WAIVER OF JURY TRIAL. EACH OF THE AGENTS, THE LENDERS
AND THE LOAN PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
(TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY. IN ADDITION, EACH OF THE AGENTS, THE LENDERS AND THE LOAN PARTIES WAIVES
THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR
ANY CLAIM OF LACHES AND ANY SET-OFF OR COUNTER CLAIM OF ANY NATURE OR
DESCRIPTION. EACH OF THE AGENTS, THE LENDERS AND THE LOAN PARTIES ACKNOWLEDGES
THAT THE FOREGOING WAIVERS ARE FREELY MADE.
* * *
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed and delivered as of the date first above written.
BORROWERS:
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MILACRON INC.
By: /s/ X.X. Xxxxxxxx
------------------------------
Name: X.X. Xxxxxxxx
Title: Vice-President - Finance
and Chief Financial Officer
CIMCOOL INDUSTRIAL PRODUCTS INC.
D-M-E MANUFACTURING INC.
D-M-E U.S.A. INC.
MILACRON INDUSTRIAL PRODUCTS, INC.
MILACRON MARKETING COMPANY
MILACRON PLASTICS TECHNOLOGIES
GROUP INC.
XXXXXXXXX MACHINERY CHICAGO, INC.
NORTHERN SUPPLY COMPANY, INC.
OAK INTERNATIONAL, INC.
PLIERS INTERNATIONAL INC.
UNILOY MILACRON INC.
UNILOY MILACRON U.S.A. INC.
By: /s/ X.X. Xxxxxxxx
----------------------------------
Name: X.X. Xxxxxxxx
Title: Treasurer
GUARANTORS:
-----------
D-M-E COMPANY
MILACRON RESIN ABRASIVES INC.
By: /s/ X.X. Xxxxxxxx
----------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
MILACRON CAPITAL HOLDINGS B.V.
By: /s/ X. xxx Xxxxxxxx
----------------------------------
Name: X. xxx Xxxxxxxx
Title: Managing Director
MILACRON INTERNATIONAL
MARKETING COMPANY
By: /s/ X.X. Xxxxxxxx
----------------------------------
Name: X.X. Xxxxxxxx
Title: Treasurer and Assistant
Secretary
ADMINISTRATIVE AGENT AND
COLLATERAL AGENT:
------------------------
JPMORGAN CHASE BANK, as
Administrative Agent and Collateral
Agent, on behalf of the Required
Lenders
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
