EXHIBIT 99.7
FIFTH AMENDMENT
TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of September 12, 2003
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 FIFTH AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "Amendment"), dated as of September 12, 2003, 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;
B. Talbot Holdings, LLC ("Talbot") 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 Talbot 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 6.01(a) is amended by restating the first parenthetical
phrase therein in its entirety to read: "(in the case of each of Parent,
Seller, D-M-E and Uniloy)".
(b) Clause (v) of Section 8.01(c) is amended in its entirety to read
as follows: "(v) [RESERVED]."
(c) Clause (v) of Section 10.01(m) is amended in its entirety to
read as follows: "(v) [RESERVED]".
(d) The definitions of "Originator" and "Subservicer" contained in
Appendix A to the Market Street Purchase Agreement shall be deemed not to
include Talbot.
(e) The definition of "Talbot Pool Receivables" contained in
Appendix A to the Market Street Purchase Agreement is deleted in its entirety.
(f) Schedule 6.1(n) and Schedule 6.1(o) are amended in their
entirety to read as set forth as Schedule 6.1(n) and Schedule 6.1(o) 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 sales by Parent of substantially all of the assets of
Talbot have 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, Talbot 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 Talbot 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 Talbot, 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
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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
MILACRON MARKETING COMPANY, as the initial
Servicer
By: /s/ Robert P. Lienesch
----------------------------------------
Title: Treasurer
MARKET STREET FUNDING CORPORATION, as
Purchaser
By: /s/ Evelyn Echevarria
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Administrator
By: /s/ John Smathers
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Title: Vice President
ACKNOWLEDGED AND AGREED:
TALBOT HOLDINGS, LLC
By: /s/ Robert P. Lienesch
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Title: Treasurer and Assistant Secretary