LIMITED WAIVER TO FINANCING AGREEMENT
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
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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 Sarbanes-Oxley 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
