Exhibit 10.1
LIMITED WAIVER NO. 3 TO FINANCING
AGREEMENT
LIMITED WAIVER NO. 3 TO FINANCING AGREEMENT,
dated as of June 29, 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); and
WHEREAS, Milacron has requested that the Agents
and the Lenders waive compliance with certain provisions of
Section 7.03(b) of the Financing Agreement and waive certain
Defaults or Events of Default that may have resulted from such
noncompliance therewith, and the Lenders and the Agents are willing
to provide such waivers 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
Subject to the terms and conditions set forth
herein, the Lenders hereby waive any noncompliance by any Loan
Party with Section 7.03(b) of the Financing Agreement with
respect to the cumulative Consolidated EBITDA requirement for the
twelve complete calendar months ending on June 30, 2005, and any
Default or Event of Default that may have resulted therefrom, in
each case solely as a result of any noncash charges arising from
reserves recorded in accordance with GAAP in connection with the
Loan Parties’ captive insurance program with Milacron
Assurance Ltd.
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) Waiver 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
that are party hereto, a nonrefundable waiver fee of
$25,000.
(e) Agent Fees and Expenses . The
Loan Parties shall have paid any and all fees payable to any Agent
under any fee letter executed in connection herewith and 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
