EXHIBIT 99.4
SECOND AMENDMENT
TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of August 1, 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,
VALENITE INC.,
as Subservicer,
MILACRON MARKETING COMPANY,
as initial Servicer,
MARKET STREET FUNDING CORPORATION,
as Purchaser,
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrator.
This SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "Amendment"), dated as of August 1, 2002, is made
among MILACRON INC. ("Parent"), MILACRON COMMERCIAL CORP., as Seller, VALENITE
INC., as Subservicer, 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; 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 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 "$65,000,000" therefor.
(b) Clause (c)(i)(3) of Section 1.03 is amended in its entirety to
read as follows:
"(3) each payment pursuant to this clause (i) (other than with
respect to any payment reducing the Purchaser's Tranche Investment
in an Asset Tranche to zero) shall be in a minimum amount of
$100,000 and a higher integral multiple of $1,000".
(c) Section 7.02(g) is amended in its entirety to read as follows:
"(g) Certificate re: Cash Liquidity. On each Reporting Date,
commencing with the August 2002 Reporting Date, an officer's
certificate from the Servicer certifying that the Cash Liquidity of
Parent is at least $10,000,000 or,
if not, setting forth the steps being taken by the Seller Parties to
execute an amendment to this Agreement as described in
Section 10.01(r)."
(d) Section 10.01 is amended by (i) redesignating clause "(r)"
thereof as clause "(s)" and (ii) inserting the following new clause (r) in
proper sequence:
"(r) failure of any Seller Party to execute an amendment to
this Agreement to establish procedures for daily reporting, daily
cash settlement and daily physical release of funds by the
Administrator within 30 days following the date on which the Cash
Liquidity of Parent is less than $10,000,000; or"
(e) The following new definitions are added to Appendix A to the
Market Street Purchase Agreement in proper sequence:
"`Cash Liquidity' means the aggregate Dollar amount of cash
and cash equivalents (as defined in Parent's financial statements
filed with the Securities and Exchange Commission) of Parent and each
Subsidiary of Parent that is organized under the laws of, and is
located in, the United States or any state thereof; provided that,
for the period from the effective date of the Second Amendment to
this Agreement through the fifth Business Day following the date on
which the sale of Widia is consummated, cash and cash equivalents of
MBV shall be included in Cash Liquidity."
"`MBV' means Milacron B.V., a wholly-owned Subsidiary of the
Parent organized under the laws of the Netherlands."
"`Widia' means the metalcutting tools business organized
within or owned by MBV."
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 and
(b) 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.
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
VALENITE INC., as Subservicer
By: /s/ Robert P. Lienesch
--------------------------------------------
Title: Treasurer and Assistant Secretary
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