LIMITED WAIVER TO FINANCING AGREEMENT
EXHIBIT 10.1
LIMITED
WAIVER TO FINANCING AGREEMENT, dated as of March 14, 2005 (this "Limited
Waiver"), 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, National
Association, 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);
WHEREAS,
Milacron has requested that the Agents and the Lenders waive compliance with
certain provisions of the Financing Agreement relating to the timely filing with
the Securities and Exchange Commission (the "SEC") of an
Annual Report on Form 10-K (or equivalent securities filing or any required
amendment thereto) (a "Form
10-K")
containing Milacron’s internal control report (the "Report")
pursuant to Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, as amended;
and
WHEREAS,
the Lenders and the Agents are willing to waive compliance with such provisions
in connection with the timely filing of such Report 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
LIMITED
WAIVER
Section
1.1 Limited
Waiver. Subject
to the terms and conditions set forth herein, the Lenders hereby waive any
inaccuracy in, or inability to make, representations and warranties in the
Financing Agreement arising solely as a result of, or any Default or Event of
Default under the Financing Agreement solely caused by, any delay in the timely
filing of the Form 10-K or any amendment thereto containing the
Report.
Section
1.2 Termination
of Waiver. The
waiver set forth in Section
1.1 hereof
shall terminate and shall cease to be of further force and effect, without any
further action by any Person, if (i) the Report is not filed as part of the Form
10-K or an amendment thereto on or before June 30, 2005 or (ii) the SEC or any
other Governmental Authority commences an enforcement action or initiates any
other formal action, suit or proceeding based
upon any delay in the timely filing of the Report as part of the Form 10-K or an
amendment thereto that could reasonably be expected to have a Material Adverse
Effect. Upon any such termination, the Agents and the Lenders shall have all of
their rights and remedies in respect of any Default or Event of Default under
the Financing Agreement or any breach of the representations
LIMITED
WAIVER
TO MILACRON FINANCING AGREEMENT
and
warranties contained in the Loan Documents, in either case arising as a result
of any failure to timely file the Report as part of the Form 10-K or an
amendment thereto.
ARTICLE
II
CONDITIONS
TO CLOSING
This
Limited Waiver shall become effective as of the date first written above upon
the satisfaction of the following conditions (such date, the "Waiver
Effective Date"):
(a) Delivery
of Limited Waiver. Each
Loan Party shall have delivered a duly executed counterpart of this Limited
Waiver 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 Limited Waiver, in
form and substance satisfactory to the Agents, certifying 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 Limited Waiver on behalf of the Required Lenders.
(d) Agent
Fees and Expenses. The
Loan Parties shall have paid all reasonable, out-of-pocket fees and expenses
(including, without limitation, reasonable fees, costs, client charges and
expenses of counsel) incurred by the Agents arising from or relating to the
negotiation, preparation, execution, delivery, performance and administration of
this Limited Waiver and arising under or relating to the other Loan Documents to
the extent invoiced and presented to the Administrative Borrower on or prior to
the Limited Waiver Effective Date.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Effect
of Limited Waiver. Except
as expressly set forth herein, this Limited Waiver 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 Limited Waiver 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 modified 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 Limited
Waiver.
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 Limited Waiver, (a)
LIMITED
WAIVER
TO MILACRON FINANCING AGREEMENT
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 Limited Waiver 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
Limited Waiver 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 Limited Waiver.
Section
3.7 Severability. The
provisions of this Limited Waiver are intended to be severable. If for any
reason any provision of this Limited Waiver 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 Limited Waiver, including the reasonable fees,
charges and disbursements of counsel for the Agents.
Section
3.9 Counterparts. This
Limited Waiver 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 Limited Waiver by signing any such counterpart. Delivery of an
executed counterpart of a signature page to this Limited Waiver by telecopier
shall be effective as delivery of a manually executed counterpart of this
Limited Waiver.
Section
3.10 GOVERNING
LAW. THE
WHOLE OF THIS LIMITED WAIVER 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
LIMITED
WAIVER
TO MILACRON FINANCING AGREEMENT
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 LIMITED WAIVER. 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 LIMITED WAIVER,
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 LIMITED WAIVER
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 LIMITED WAIVER, 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 Limited Waiver to be duly
executed and delivered as of the date first above written.
BORROWERS:
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
By:
/s/
X.X.
Xxxxxxxx
Name: X.X.
Xxxxxxxx
Title: Treasurer
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, NATIONAL
ASSOCIATION, as
Administrative Agent and Collateral Agent,
on behalf
of the Required Lenders
By:
/s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X.
Xxxxxxx
Title: Vice
President
