EXHIBIT 10.1
------------
Execution Version
-----------------
FOURTH AMENDMENT
TO FINANCING AGREEMENT
FOURTH AMENDMENT TO FINANCING AGREEMENT, dated as of July 29, 2005 (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, 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 and, collectively,
the "Agents").
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 Amendments to Definitions. As of the Fourth Amendment Effective
Date, Section 1.01 of the Financing Agreement is hereby amended by:
(a) inserting the following new definitions in the proper
alphabetical order therein:
"Fourth Amendment" means the Fourth Amendment to Financing Agreement, dated
as of July 29, 2005, among the Parent, each subsidiary of the Parent listed
as a borrower or a guarantor on the signature pages thereto, the Lenders
party thereto, and the Agents.
"Fourth Amendment Effective Date" has the meaning set forth in the Fourth
Amendment.
"Permitted Foreign Indebtedness" means, collectively, (i) Indebtedness of
Ferromatik Milacron Machhinenbau GmbH arising out of Permitted German
Receivables Financing and (ii) the Permitted Indian Indebtedness.
"Permitted Indian Indebtedness" means Indebtedness of Ferromatik Milacron
India Limited arising under any credit facility (including any letter of
credit facility) under foreign law; provided, that (i) the aggregate
principal amount of all such Indebtedness at any time outstanding shall not
exceed the equivalent of $4,500,000 (based on the applicable exchange rate
quoted by JPMorgan in effect on the Fourth Amendment Effective Date), (ii)
the Indebtedness of Ferromatik Milacron India Limited described in Schedule
7.02(b) to the Financing Agreement is refinanced thereby, and (iii) in
connection with such refinancing, all letters of credit supporting such
Indebtedness in respect of which any Loan Party is an account party are
released with respect thereto.
"Permitted German Receivables Financing" means the factoring of trade
receivables in the ordinary course of business by Ferromatik Milacron
Machinenbau GmbH; provided, that the aggregate face amount with respect to
such receivables shall not exceed, at any one time, in the aggregate, the
equivalent of (euro)10,000,000.
(b) amending and restating clause (g) of the definition of "Permitted
Indebtedness" in its entirety to read as follows:
(g) Permitted Foreign Indebtedness;
(c) amending and restating clause (m) of the definition of "Permitted
Liens" in its entirety to read as follows
(m) Liens on assets of any Foreign Subsidiary securing
Indebtedness of any Foreign Subsidiary permitted by clauses (g) or (i) of
the definition of Permitted Indebtedness;
Section 1.2 Amended Fundamental Changes; Dispositions Covenant. As of the
Fourth Amendment Effective Date, clause (i) of Section 7.02(c) of the Financing
Agreement is hereby amended by (a) deleting the word "and" appearing immediately
before subclause (G) of such clause and replacing it with the punctuation ▇▇▇▇
"," and (b) inserting the following new subclause immediately following the
words "sole discretion" appearing at the end of such subclause (G) to read as
follows:
and (H) sell or otherwise dispose of assets consisting of accounts
receivable and related assets in connection with Permitted German
Receivables Financing
Section 1.3 Amended Permitted Investments Covenant. As of the Fourth
Amendment Effective Date, clause (iv) of Section 7.02(e) of the Financing
Agreement is hereby amended and restated in its entirety to read as follows:
(iv) investments not constituting loans or advances by (A) any
Domestic Loan Party in any other Domestic Loan Party, (B) any Foreign
Subsidiary of Milacron Capital in any other Foreign Subsidiary of Milacron
Capital and (C) any Foreign Subsidiary (other than a Subsidiary of Milacron
Capital) in any other Foreign Subsidiary (other than any Subsidiary of
Milacron Capital);
Section 1.4 Amended Cumulative Consolidated EBITDA Covenant. As of the
Fourth Amendment Effective Date, 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
------ ------
Six complete calendar months ending December 31, $24,000,000
2004
Nine complete calendar months ending March 31, 2005 $26,350,000
Twelve complete calendar months ending June 30, $35,750,000
2005
Twelve complete calendar months ending September $27,000,000
30, 2005
Twelve complete calendar months ending December $24,000,000
31, 2005
ARTICLE II
CONDITIONS TO CLOSING
This Amendment shall become effective upon the satisfaction of the
following conditions (such date, the "Fourth Amendment Effective Date"):
(a) Fourth 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 Fourth Amendment Effective Date, 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 that are party hereto, a nonrefundable amendment fee of
$93,750.
(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 Amendment 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 Fourth Amendment
Effective Date.
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; provided that any
transaction consummated prior to the Fourth Amendment Effective Date that would
have been permitted by clause (H) of Section 7.02(c)(i) as amended by this
Amendment if consummated after the Fourth Amendment Effective Date will be
deemed not to have been restricted by Section 7.02(b) or (c) as of and from the
time consummated. 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:
----------
MILACRON INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
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.
▇▇▇▇▇▇▇▇▇ MACHINERY CHICAGO, INC.
NORTHERN SUPPLY COMPANY, INC.
OAK INTERNATIONAL, INC.
PLIERS INTERNATIONAL INC.
UNILOY MILACRON INC.
UNILOY MILACRON U.S.A. INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
GUARANTORS:
-----------
D-M-E COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MILACRON CAPITAL HOLDINGS B.V.
By: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
MILACRON INTERNATIONAL
MARKETING COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
