EXHIBIT 99.3
FIRST AMENDMENT
TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of June 7, 2002
among
MILACRON INC.,
MILACRON COMMERCIAL CORP.,
as Seller,
D-M-E COMPANY,
as DME Subservicer,
UNILOY MILACRON INC.,
as Subservicer,
TALBOT HOLDINGS, LTD.,
as Subservicer,
MILACRON MARKETING COMPANY,
as initial Servicer,
MARKET STREET FUNDING CORPORATION,
as Purchaser,
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrator.
This FIRST AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "Amendment"), dated as of June 7, 2002, is made among
MILACRON INC. ("Parent"), MILACRON COMMERCIAL CORP., as Seller, UNILOY
MILACRON INC., as Subservicer, TALBOT HOLDINGS, LTD., 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;
B. Valenite has ceased to be an originator and subservicer of
accounts receivable under the Purchase Agreement, and the Seller Parties have
requested for good and valid business reasons that the Market Street Purchase
Agreement be amended to remove Valenite as a party thereto;
C. In furtherance thereof, 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 to the following:
SECTION 1. Definitions. Except as otherwise defined herein,
capitalized terms have the meanings set forth in the Market Street Purchase
Agreement.
SECTION 2. Amendments.
(a) Section 1.01 is amended by deleting the reference to
"$75,000,000" therein and substituting "$50,000,000 therefor.
(b) Section 6.01(a) is amended by deleting the reference to
"Valenite," contained therein.
(c) Clause (ii) of Section 8.01(c) is amended in its entirety to
read as follows: "(ii) [RESERVED]."
(d) Clause (ii) of Section 10.01(m) is amended in its entirety to
read as follows: "(ii) [RESERVED] or".
(e) The definitions of "Originator" and "Subservicer" contained in
Appendix A to the Market Street Purchase Agreement shall be deemed not to
include Valenite Inc.
(f) The definition of "Valenite Pool Receivables" contained in
Appendix A to the Market Street Purchase Agreement is deleted in its entirety.
(g) Schedule 6.1(n), Schedule 6.1(o) and Appendix B are amended in
their entirety to read as set forth as Schedule 6.1(n), Schedule 6.1(o) and
Appendix B hereto, respectively.
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 Amendment
Effective Date.
SECTION 4. Closing Conditions. This Amendment shall become effective
on the first date (the "Amendment Effective Date") on which the Administrator
shall have received (a) this Amendment duly executed by the parties hereto,
(b) evidence that the sale by Parent of all of the issued and outstanding
shares of common stock of Valenite has been consummated and (c) such other
agreements, instruments, certificates, opinions and other documents as the
Administrator may reasonably request.
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 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 acknowledge and agree that as of the
Amendment Effective Date, Valenite shall have no further rights, obligations
or liabilities under the Market Street Purchase Agreement or any other
Transaction Document. Each of the parties hereto further
agrees that, with respect to any obligations or liabilities of Valenite under
the Market Street Purchase Agreement or any other Transaction Document which
by their terms expressly would continue in the absence of the previous
sentence with respect to Valenite, Parent hereby assumes, and agrees to
indemnify and hold harmless Purchaser and Administrator from and against, any
such obligations and liabilities.
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/ Robert P. Lienesch
----------------------------------------
Title: Vice President - Finance and Chief
Financial Officer
MILACRON COMMERCIAL CORP., as Seller
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer and Assistant Secretary
D-M-E COMPANY, as DME Subservicer
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer
UNILOY MILACRON INC., as Subservicer
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer
TALBOT HOLDINGS, LTD., as Subservicer
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer and Assistant Secretary
MILACRON MARKETING COMPANY, as the initial
Servicer
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer
MARKET STREET FUNDING CORPORATION, as
Purchaser
By: /s/ Douglas K. Johnson
----------------------------------------
Title: President
PNC BANK, NATIONAL ASSOCIATION, as
Administrator
By: /s/ John Smathers
----------------------------------------
Title: Vice President
ACKNOWLEDGED AND AGREED:
VALENITE INC.
By: /s/ Robert P. Lienesch
------------------------------
Title: Treasurer and Assistant Secretary