EIGHTH AMENDMENT
TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF FEBRUARY 27, 2004
AMONG
MILACRON INC.,
MILACRON COMMERCIAL CORP.,
AS SELLER,
D-M-E COMPANY,
AS DME SUBSERVICER,
UNILOY MILACRON INC.,
AS SUBSERVICER,
MILACRON MARKETING COMPANY,
AS INITIAL SERVICER,
MARKET STREET FUNDING CORPORATION,
AS PURCHASER,
AND
PNC BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATOR.
This EIGHTH AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "Amendment"), dated as of February 27, 2004, is made
among MILACRON INC. ("Parent"), MILACRON COMMERCIAL CORP., as Seller, UNILOY
MILACRON INC., as Subservicer, D-M-E COMPANY, as DME Subservicer, MILACRON
MARKETING COMPANY, as initial Servicer (Parent, Seller, Subservicers and DME
Subservicer each a "Seller Party" and collectively the "Seller Parties"),
MARKET STREET FUNDING CORPORATION, as Purchaser, and PNC BANK, NATIONAL
ASSOCIATION, as Administrator.
BACKGROUND
A. The parties hereto have entered into the Third Amended and
Restated Receivables Purchase Agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Market Street
Purchase Agreement") dated as of November 15, 2001 pursuant to which, among
other things, the Seller agreed to sell, and the Purchaser agreed to purchase,
the Pool Receivables and Related Assets; and
B. The parties hereto wish to amend the Market Street Purchase
Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. Except as otherwise defined herein,
capitalized terms have the respective meanings set forth in the Market Street
Purchase Agreement.
SECTION 2. Amendments.
(a) Section 1.01 of the Market Street Purchase Agreement is amended
by replacing the reference therein to "$40,000,000" with "$30,000,000".
(b) The definition of "Termination Date" set forth in Appendix A of
the Market Street Purchase Agreement is amended by replacing the reference
therein to "February 27, 2004" with "March 12, 2004".
(c) Section 3.01(c) of the Market Street Purchase Agreement is
amended by inserting the following at the end of clause (iii) thereof
immediately before the semicolon: "or under any other Transaction Document,
including any amendment or restructuring fee payable by the Seller".
(d) Section 10.01(s) of the Market Street Purchase Agreement is
amended by replacing the reference therein to "February 27, 2004" with "March
12, 2004".
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SECTION 3. Representations and Warranties. The Seller Parties
jointly and severally represent and warrant as follows:
(a) this Amendment has been duly authorized, executed and delivered
on its behalf, and the Market Street Purchase Agreement, as so amended,
and each of the other Transaction Documents to which any Seller Party is
a party constitutes such Seller Party's legal, valid and binding
obligation enforceable against it in accordance with the terms hereof or
thereof; and
(b) after giving effect to this Amendment, no Liquidation Event (nor
Unmatured Liquidation Event) shall exist as of the date of effectiveness
hereof.
SECTION 4. Effectiveness. This Amendment shall become effective upon
(a) receipt by the Administrator of this Amendment duly executed by the
parties hereto and (b) the effectiveness of an amendment to the Liquidity
Agreement extending the term of the Liquidity Agreement to March 12, 2004.
SECTION 5. Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES.
(b) This Amendment may be executed in any number of counterparts
(including by facsimile) and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original, and all of which together shall constitute one and the same
agreement.
(c) Any reference to the Market Street Purchase Agreement contained
in any notice, request, certificate or other document executed concurrently
herewith or after the date hereof shall be deemed to be a reference to the
Market Street Purchase Agreement as amended hereby. Except as expressly
modified hereby, the Transaction Documents hereby are ratified and confirmed
by the parties hereto, and remain in full force and effect.
(d) The parties hereto agree that any restructuring fee payable by
the Seller for the benefit of the Liquidity Agent in connection with the
extension of the term of the Liquidity Agreement to March 12, 2004 shall be
paid to the Administrator pursuant to Section 3.01(c) of the Market Street
Purchase Agreement (as amended hereby) for distribution to the Liquidity
Agent.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Amendment as of the day and year first
above written.
MILACRON INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Vice President - Finance and Chief Financial Officer
MILACRON COMMERCIAL CORP., as Seller
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Treasurer and Assistant Secretary
D-M-E COMPANY, as DME Subservicer
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Treasurer
UNILOY MILACRON INC., as Subservicer
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Treasurer
MILACRON MARKETING COMPANY, as the initial Servicer
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Treasurer
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XXXXXX XXXXXX FUNDING CORPORATION, as Purchaser
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------------
Title: President
PNC BANK, NATIONAL ASSOCIATION, as Administrator
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------------------
Title: Vice President
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