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Exhibit 4
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement (this "Amendment") is made as of the
30th day of June, 2001, by and among PARK-OHIO INDUSTRIES, INC., an Ohio
corporation ("Borrower"), the banking institutions listed on Schedule 1 to the
Credit Agreement, as hereinafter defined ("Banks"), KEYBANK NATIONAL
ASSOCIATION, as administrative agent for the Banks ("Agent"), and THE HUNTINGTON
NATIONAL BANK, as co-agent for the Banks ("Co-Agent").
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
and Security Agreement, dated as of December 21, 2000, as amended and as the
same may from time to time be further amended, restated or otherwise modified,
which provides, among other things, for revolving loans and other financial
accommodations aggregating One Hundred Eighty Million Dollars ($180,000,000),
all upon certain terms and conditions stated therein (the "Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized term used herein shall be defined in
accordance with the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable considerations, Borrower,
Agent and the Banks hereby agree as follows:
1. Article I of the Credit Agreement is hereby amended to delete the
definitions of "Applicable Margin", "Collateral", "Commitment", "Loan", "Loan
Documents", and "Revolving Credit Commitment" in their entirety and to
substitute in place thereof, respectively, the following:
"Applicable Margin" shall mean:
(a) for the period from the Closing Date through March 31,
2001, twenty-five (25) basis points for each Base Interest Segment and
one hundred ninety (190) basis points for each LIBOR Interest Segment;
(b) for the period from April 1, 2001 through May 31, 2001,
one hundred (100) basis points for each Base Rate Segment and Two
Hundred Seventy-Five (275) basis points for each LIBOR Interest
Segment;
(c) for the period from June 1, 2001 through August 31, 2001,
one hundred twenty-five (125) basis points for each Base Rate Segment
and three hundred (300) basis points for each LIBOR Interest Segment;
and
(d) commencing with the financial statements for the fiscal
quarter ending June 30, 2001, the number of basis points (for each Base
Interest Segment or LIBOR Interest Segment, as appropriate) set forth
in the following matrix, based upon the result of the
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computation of the Leverage Ratio, shall be used to establish the
number of basis points that will go into effect on September 1, 2001
and thereafter:
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APPLICABLE BASIS POINTS APPLICABLE BASIS POINTS
LEVERAGE RATIO FOR EACH BASE FOR EACH LIBOR
INTEREST SEGMENT INTEREST SEGMENT
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Greater than or equal 150 basis points 325 basis points
to 5.25 to 1.00
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Greater than or equal 125 basis points 300 basis points
to 4.90 to 1.00, but less
than 5.25 to 1.00
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Greater than or equal
to 4.75 to 1.00, but less 100 basis points 275 basis points
than 4.90 to 1.00
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Greater than or equal
to 4.50 to 1.00, but less 50 basis points 235 basis points
than 4.75 to 1.00
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Greater than or equal
to 4.25 to 1.00, but less 25 basis points 190 basis points
than 4.50 to 1.00
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Greater than or equal
to 4.00 to 1.00, but less 0 basis points 175 basis points
than 4.25 to 1.00
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Greater than or equal
to 3.75 to 1.00, but less 0 basis points 162.50 basis points
than 4.00 to 1.00
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Greater than or equal
to 3.40 to 1.00, but less 0 basis points 150 basis points
than 3.75 to 1.00
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Less than 3.40 to 1.00 0 basis points 137.50 basis points
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Changes to the Applicable Margin shall be effective on the first day of
the month following the date upon which Agent received, or, if earlier,
should have received, pursuant to Section 5.3(a) and (b) hereof, the
financial statements of Borrower. The above matrix does not modify or
waive, in any respect, the requirements of Section 5.7 hereof, the
rights of the Banks to charge the Default Rate, or the rights and
remedies of Agent and the Banks pursuant to Articles VIII and IX
hereof.
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"Collateral" shall mean all of Borrower's existing and future
(a) personal property; (b) Accounts, instruments, contract rights,
chattel paper, documents, Investment Property, letter-of-credit rights,
General Intangibles, Inventory and Equipment; (c) funds now or
hereafter on deposit in the Cash Collateral Account, if any; (d) Cash
Security; and (e) Proceeds, products, profits, and rents of any of (a)
through (d) above.
"Commitment" shall mean the obligation hereunder of the Banks,
during the Commitment Period, to make Loans pursuant to the Revolving
Credit Commitments and to participate in the issuance of Letters of
Credit, up to the Total Commitment Amount.
"Loan" or "Loans" shall mean the credit extended to Borrower
by the Banks in accordance with Section 2.1A hereof.
"Loan Documents" shall mean, collectively, this Agreement,
each Note, each Guaranty of Payment, all documentation relating to each
Letter of Credit, each Security Agreement, each Pledge Agreement, each
Intellectual Property Collateral Assignment Agreement, each Mortgage,
each Debenture, the Agent Fee Letter, the Closing Fee Letter, all
U.C.C. financing statements executed in connection with this Agreement
and any of the foregoing agreements, as any of the foregoing may from
time to time be amended, restated or otherwise modified or replaced.
"Pledged Securities" shall mean all of the following, whether
now owned or hereafter acquired or created, (a) sixty-five percent
(65%) of the stock or other equity interest of each Foreign Subsidiary
of Borrower or any Subsidiary of Borrower, (b) one hundred percent
(100%) of the stock or other equity interest of each Domestic
Subsidiary of Borrower, and (c) all proceeds of any of the foregoing.
"Revolving Credit Commitment" shall mean the obligation
hereunder of each Bank, during the Commitment Period, to participate in
the making of Revolving Loans and the issuance of Letters of Credit, up
to the aggregate amount set forth opposite such Bank's name under the
column headed "Revolving Credit Commitment Amount" as set forth on
Schedule 1 hereto (or such lesser amount as shall be determined
pursuant to Section 2.5 hereof).
2. Article I of the Credit Agreement is hereby amended to add the
following new definitions thereto:
"Debenture" shall mean any debenture executed and delivered to
Agent by Borrower or a Guarantor of Payment after the Closing Date with
respect to real and/or personal property of Borrower or any such
Guarantor of Payment located in the United Kingdom, to further secure
Borrower's obligations under the Notes, as the same may from time to
time be amended, restated or otherwise modified.
"Equipment" shall mean all (a) equipment, as defined in
Chapter 1309 of the Ohio Revised Code as in effect from time to time,
including, without limitation, machinery, motor
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vehicles, trade fixtures, office and other furniture and furnishings,
tools, dies, jigs, and molds; (b) goods that are used or bought for use
primarily in any Company's business; (c) goods that are not consumer
goods, farm products (as defined in Chapter 1309 of the Ohio Revised
Code as in effect from time to time), or Inventory; and (d) substitutes
or replacements for, and all parts, accessories, additions, attachments
or accessions to (a) through (c) above.
"Intellectual Property Collateral Assignment Agreement" shall
mean each Intellectual Property Collateral Assignment Agreement
executed and delivered to Agent, for the benefit of the Banks, by
Borrower or a Guarantor of Payment after the Closing Date, as the same
may from time to time be amended, restated or otherwise modified.
"Letter of Credit" shall mean any sight commercial documentary
letter of credit or any standby letter of credit that shall be issued
by Agent for the benefit of Borrower or a Guarantor of Payment,
including amendments thereto, if any, and shall have an expiration date
no later than the earlier of (a) one (1) year after its date of
issuance or (b) thirty (30) days prior to the last day of the
Commitment Period.
"Letter of Credit Commitment" shall mean the commitment of
Agent, on behalf of the Banks, to issue Letters of Credit in an
aggregate face amount of up to Seven Million Dollars ($7,000,000).
"Letter of Credit Exposure" shall mean the sum of (a) the
aggregate undrawn face amount of all issued and outstanding Letters of
Credit, and (b) the aggregate of the draws made on Letters of Credit
that have not been reimbursed by Borrower or converted to a Revolving
Loan pursuant to Section 2.1B hereof.
"Mortgage" shall mean any mortgage, deed of trust or other
similar instrument executed and delivered to Agent after the Closing
Date by Borrower or any Guarantor of Payment with respect to real
property owned by Borrower or any such Guarantor of Payment, including
the Real Property, to further secure Borrower's obligations under the
Notes, as the same may from time to time be amended, restated or
otherwise modified.
"Real Property" shall mean (a) the real estate owned by
Borrower or a Guarantor of Payment, as the case may be, located at the
addresses set forth on Schedule 3 hereto and (b) any other real estate
owned by Borrower or any Guarantor of Payment that shall become subject
to a Mortgage, together with all improvements and buildings thereon and
all appurtenances, easements or other rights belonging to any of the
foregoing.
"Revolving Credit Exposure" shall mean, at any time, the sum
of (a) the aggregate principal amount of all Revolving Loans
outstanding, and (b) the Letter of Credit Exposure.
3. The Credit Agreement is hereby amended to delete Section 2.1
therefrom in its entirety and to insert in place thereof the following:
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Section 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms
and conditions of this Agreement, each Bank shall participate, to the
extent hereinafter provided, in making Revolving Loans to Borrower, and
issuing Letters of Credit at the request of Borrower, in such aggregate
amount as Borrower shall request pursuant to the Commitment; provided,
however, that in no event shall the aggregate principal amount of all
Revolving Loans and Letters of Credit outstanding under this Agreement
be in excess of the Total Commitment Amount.
Each Bank, for itself and not one for any other, agrees to
participate in Loans made and Letters of Credit issued hereunder during
the Commitment Period on such basis that (a) immediately after the
completion of any borrowing by Borrower or issuance of a Letter of
Credit, the aggregate principal amount then outstanding on the Note
issued to such Bank, when combined with such Bank's pro rata share of
the Letter of Credit Exposure shall not be in excess of the Maximum
Amount for such Bank, and (b) such aggregate principal amount
outstanding on the Note issued to such Bank shall represent that
percentage of the aggregate principal amount then outstanding on all
Notes (including the Note held by such Bank) that is such Bank's
Commitment Percentage.
Each borrowing from the Banks hereunder shall be made pro rata
according to the respective Commitment Percentages of the Banks. The
Loans may be made as Revolving Loans, and Letters of Credit may be
issued, as follows:
A. Revolving Loans.
Subject to the terms and conditions of this Agreement, during
the Commitment Period, the Banks shall make a Revolving Loan or
Revolving Loans to Borrower in such amount or amounts as Borrower may
from time to time request, but not exceeding in aggregate principal
amount at any time outstanding hereunder the Total Commitment Amount,
when such Revolving Loans are combined with the Letter of Credit
Exposure. Each Revolving Loan shall mature on the last day of the
Commitment Period and shall bear interest at a Base Rate Option or one
or more LIBOR Rate Options as selected by Borrower in accordance with
the terms and conditions set forth herein.
With respect to the Base Interest Segment of each Revolving
Loan, Borrower shall pay interest on the unpaid principal amount
thereof outstanding from time to time from the date thereof until paid,
commencing December 31, 2000, and on the last day of each succeeding
March, June, September and December thereafter and at the maturity
thereof, at the Derived Base Rate from time to time in effect.
With respect to each LIBOR Interest Segment of each Revolving
Loan, Borrower shall pay interest on the unpaid principal amount
thereof outstanding from time to time, from the first day of the
Interest Period applicable thereto through the last day of the Interest
Period applicable thereto. Interest on each such LIBOR Interest Segment
shall be at the Derived LIBOR Rate, as calculated on the first day of
the Interest Period applicable thereto (fixed for such Interest Period
with respect to the LIBOR Rate, but subject to changes in the
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Applicable Margin), and shall be payable on the Interest Adjustment
Date with respect to such Interest Period (provided that if an Interest
Period exceeds three (3) months, the interest must be paid every three
(3) months, commencing three (3) months from the beginning of such
Interest Period). At the request of Borrower to Agent, subject to the
notice and other provisions of Section 2.2 hereof, the Banks shall
change all or any part of a Base Rate Segment of any Revolving Loan to
a LIBOR Rate Option at any time, and shall change any LIBOR Interest
Segment of any Revolving Loan to a Base Rate Option on the Interest
Adjustment Date applicable to such LIBOR Interest Segment.
The obligation of Borrower to repay the Revolving Loans made
by each Bank and to pay interest thereon shall be evidenced by a
Revolving Credit Note of Borrower in the form of Exhibit A hereto,
payable to the order of such Bank in the principal amount of its
Revolving Credit Commitment, or, if less, the aggregate unpaid
principal amount of Revolving Loans made hereunder by such Bank.
Subject to the provisions of this Agreement, Borrower shall be entitled
under this Section 2.1A to borrow funds, repay the same in whole or in
part and re-borrow hereunder at any time and from time to time during
the Commitment Period.
B. Letters of Credit.
Subject to the terms and conditions of this Agreement, during
the Commitment Period, Agent shall, in the name of KeyBank National
Association, but only as Agent for the Banks, issue such Letters of
Credit for the account of Borrower or any Guarantor of Payment, as
Borrower may from time to time request. Borrower shall not request any
Letter of Credit (and Agent shall not be obligated to issue any Letter
of Credit) if, after giving effect thereto, (a) the aggregate undrawn
face amount of all issued and outstanding Letters of Credit would
exceed the Letter of Credit Commitment or (b) the Revolving Credit
Exposure would exceed the aggregate amount of the Revolving Credit
Commitments. The issuance of each Letter of Credit shall confer upon
each Bank the benefits and liabilities of a participation consisting of
an undivided pro rata interest in the Letter of Credit to the extent of
such Bank's Commitment Percentage.
Each request for a Letter of Credit shall be delivered to
Agent not later than 11:00 A.M. (Cleveland, Ohio time) three (3)
Business Days prior to the day upon which the Letter of Credit is to be
issued. Each such request shall be in a form acceptable to Agent and
specify the face amount thereof, whether such Letter of Credit is a
commercial documentary or a standby Letter of Credit, the account
party, the beneficiary, the intended date of issuance, the expiry date
thereof, and the nature of the transaction to be supported thereby.
Concurrently with each such request, Borrower, and any Guarantor of
Payment for whose benefit the Letter of Credit is to be issued, shall
execute and deliver to Agent an appropriate application and agreement,
being in the standard form of Agent for such letters of credit, as
amended to conform to the provisions of this Agreement if required by
Agent. Agent shall give each Bank notice of each such request for a
Letter of Credit.
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In respect of each Letter of Credit that is a commercial
documentary letter of credit and the drafts thereunder, whether issued
for the account of Borrower or a Guarantor of Payment, Borrower agrees
(i) to pay to Agent, for the pro rata benefit of the Banks, a non-
refundable commission based upon the face amount of the Letter of
Credit, which shall be paid quarterly in arrears, on the last day of
each succeeding March, June, September and December of each year and at
the expiration of such Letter of Credit, at the rate of one and
one-fourth percent (1 1/4%) per annum times the face amount of the
Letter of Credit; (ii) to pay to Agent, for its sole account, an
additional Letter of Credit fee, which shall be paid on each date that
such Letter of Credit is issued or renewed at the rate of one-eighth
percent (1/8 of 1%) of the face amount of such Letter of Credit; and
(iii) for its sole account, such other issuance, amendment,
negotiation, draw, acceptance, telex, courier, postage and similar
transactional fees as are generally charged by Agent under its fee
schedule as in effect from time to time. In respect of each Letter of
Credit that is a standby letter of credit and the drafts thereunder, if
any, whether issued for the account of Borrower or a Guarantor of
Payment, Borrower agrees (A) to pay to Agent, for the pro rata benefit
of the Banks, a non-refundable commission based upon the face amount
of the Letter of Credit, which shall be paid quarterly in arrears, on
the last day of each succeeding March, June, September and December of
each year and at the expiration of such Letter of Credit, at the rate
of one and one-fourth percent (1 1/4%) per annum times the face amount
of the Letter of Credit; (B) to pay to Agent, for its sole account, an
additional Letter of Credit fee, which shall be paid on each date that
such Letter of Credit is issued or renewed at the rate of one-eighth
percent (1/8 of 1%) of the face amount of such Letter of Credit; and
(C) to pay to Agent for its sole account, such other issuance,
amendment, negotiation, draw, acceptance, telex, courier, postage and
similar transactional fees as are generally charged by Agent under its
fee schedule as in effect from time to time.
4. Section 2.2 of the Credit Agreement is hereby amended to add the
words "and of Agent to issue any Letter of Credit" immediately after the word
"Loan" in the second line of the first paragraph thereof.
5. Section 2.2 of the Credit Agreement is hereby amended to add the
following new subsection thereto:
(g) with respect to Letters of Credit, satisfaction of the notice
provisions set forth in Section 2.1B hereof.
6. Section 2.2 of the Credit Agreement is hereby amended to add the
words "or for the issuance of a Letter of Credit" immediately after the word
"Loan" in the first line of the second to the last paragraph thereof.
7. Section 2.5 of the Credit Agreement is hereby amended to delete
subsection (a) therefrom in its entirety and to insert in place thereof the
following:
(a) Borrower shall pay to Agent, for the ratable account of
the Banks, as a consideration for the Commitment hereunder, a
commitment fee from the Closing Date to
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and including the last day of the Commitment Period, payable quarterly,
equal to (i) the Applicable Commitment Fee Rate in effect on the
payment date, times (ii) (A) the maximum Total Commitment Amount in
effect during such quarter, less (B) the average daily Revolving Credit
Exposure during such quarter. The commitment fee shall be payable, in
arrears, on December 31, 2000, and on the last day of each March, June,
September and December thereafter, and on the last day of the
Commitment Period.
8. Section 2.5 of the Credit Agreement is hereby amended to delete
subsection (c) therefrom in its entirety and to insert in place thereof the
following:
(c) Borrower may at any time or from time to time permanently
reduce in whole or ratably in part the Commitment of the Banks
hereunder to an amount not less than the Revolving Credit Exposure then
outstanding, by giving not fewer than three (3) Business Days' notice
of such reduction, provided that any such partial reduction shall be in
an aggregate amount, for all of the Banks, of not less than Five
Million Dollars ($5,000,000) or any multiple thereof. Agent shall
promptly notify each Bank of the date of each such reduction and such
Bank's proportionate share thereof. After each such reduction, the
commitment fees payable hereunder shall be calculated upon the Total
Commitment Amount as so reduced. If Borrower reduces in whole the
Commitment of the Banks, on the effective date of such reduction
(Borrower having prepaid in full the unpaid principal balance, if any,
of the Notes, together with all interest and commitment and other fees
accrued and unpaid), and provided that no issued and outstanding
Letters of Credit shall exist, all of the Notes shall be delivered to
Agent marked "Canceled" and Agent shall redeliver such Notes to
Borrower. Any partial reduction in the Commitment of the Banks shall be
effective during the remainder of the Commitment Period.
9. The Credit Agreement is hereby amended to delete Section 2.6
therefrom in its entirety and to insert in place thereof the following:
SECTION 2.6. COMPUTATION OF INTEREST AND FEES; DEFAULT RATE.
Interest on Loans, Related Expenses and commitment and other fees and
charges hereunder shall be computed on the basis of a year having three
hundred sixty (360) days and calculated for the actual number of days
elapsed. Anything herein to the contrary notwithstanding, if an Event
of Default shall occur hereunder, at the option of the Required Banks,
(a) the principal of each Note and the unpaid interest thereon shall
bear interest, until paid, at the Default Rate; and (b) the fee for the
aggregate undrawn face amount of all issued and outstanding Letters of
Credit shall be increased to three percent (3%) in excess of the then
applicable fee from time to time in effect pursuant to Section 2.1B
hereof. In no event shall the rate of interest hereunder exceed the
maximum rate allowable by law.
10. The Credit Agreement is hereby amended to delete Section 2.7 in its
entirety and to insert in place thereof the following:
SECTION 2.7. MANDATORY PAYMENT. If, at any time, the Revolving
Credit Exposure shall exceed the Total Commitment Amount, Borrower
shall, as promptly
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as practicable, but in no event later than the next Business Day,
prepay an aggregate principal amount of the Loans sufficient to bring
the Revolving Credit Exposure within the Commitment of the Banks. Any
prepayment of a LIBOR Interest Segment pursuant to this Section 2.7
shall be subject to the prepayment fees set forth in Section 2.4
hereof.
11. The Credit Agreement is hereby amended to delete Sections 5.7(a)
and (c) in their entirety and to insert in place thereof, respectively, the
following:
(a) INTEREST COVERAGE RATIO. Borrower shall not suffer or
permit, at any time, for the most recently completed four (4) fiscal
quarters of Borrower, the ratio of (i) Consolidated Pro-Forma EBIT to
(ii) Consolidated Pro-Forma Interest Expense to be less than (A) 1.60
to 1.00 on the Closing Date through December 31, 2000, (B) 1.40 to 1.00
on January 1, 2001 through March 31, 2001, (C) 1.20 to 1.00 on April 1,
2001 through December 31, 2001, (D) 1.35 to 1.00 on January 1, 2002
through March 31, 2002, and (E) 1.60 to 1.00 on April 1, 2002 and
thereafter.
(c) LEVERAGE RATIO. Borrower shall not suffer or permit, at
any time, for the most recently completed four (4) fiscal quarters of
Borrower, the Leverage Ratio to exceed (i) 4.80 to 1.00 on the Closing
Date through December 31, 2000, (ii) 5.25 to 1.00 on January 1, 2001
through Xxxxx 00, 0000, (xxx) 6.00 to 1.00 on April 1, 2001 through
December 31, 2001, (iv) 5.50 to 1.00 on January 1, 2002 through March
31, 2002, and (v) 4.80 to 1.00 on April 1, 2002 and thereafter.
12. Section 5.18 of the Credit Agreement is hereby amended to add the
words "or Equipment" immediately after the word "Inventory" in both places that
it appears in subsection (a) thereof.
13. Section 5.19 of the Credit Agreement is hereby amended to add the
words "and Equipment" immediately after the word "Inventory" in subsection (a)
thereof.
14. Section 5.19 of the Credit Agreement is hereby amended to add the
following new subsection thereto:
(f) maintain Borrower's Equipment in good operating condition
and repair, ordinary wear and tear excepted, making all necessary
replacements thereof so that the value and operating efficiency thereof
shall at all times be maintained and preserved, and promptly inform
Agent of any additions to or deletions from Borrower's Equipment (other
than in the ordinary course of business).
15. Section 5.19 of the Credit Agreement is hereby amended to add the
words "or Equipment" immediately after the word "Inventory" in the last
paragraph thereof and to add the following new sentence at the end of such
paragraph:
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If Borrower fails to keep and maintain its Equipment in good operating
condition, Agent may (but shall not be required to) so maintain or
repair all or any part of Borrower's Equipment and the cost thereof
shall be a Related Expense.
16. The Credit Agreement is hereby amended to delete Section 5.24
therefrom in its entirety and to insert in place thereof the following:
SECTION 5.24. RIGHT TO TAKE ADDITIONAL COLLATERAL.
(a) In addition to any other right that Agent and the Banks
may have pursuant to this Agreement or otherwise and subject to subpart
(b) hereof, Borrower shall, and shall cause each Guarantor of Payment
to, at any time upon request of Agent (i) grant to Agent, for the
benefit of the Banks, as additional security for the Secured Debt a
first priority security interest in or Lien on any real or personal
property of Borrower and each Guarantor of Payment in which Agent does
not already have a first priority security interest or Lien (the
"Additional Collateral"), and (ii) execute and deliver to Agent, for
the benefit of the Banks, such security agreements, intellectual
property assignment agreements, pledge agreements, mortgages (or deeds
of trust, if applicable) or other documents, instruments or agreements
or such thereof as Agent and the Required Banks may reasonably require
in connection with security interests and Liens to be granted in the
Additional Collateral pursuant to subpart (i) above (collectively, the
"Additional Collateral Documents"). In connection with the foregoing,
Agent shall be authorized to file or record such UCC financing
statements or mortgages or other evidence of the Liens granted pursuant
to the Additional Collateral Documents. Borrower agrees to provide such
assistance and further assurances as may be required by Agent in
connection with the Additional Collateral.
(b) If, at any time after June 30, 2001, the Leverage Ratio
shall have been less than or equal to 4.80 to 1.00 for two (2)
consecutive fiscal quarters and so long as no Default or Event of
Default shall exist or immediately thereafter shall begin to exist and
the Fixed Charge Condition Period shall have ended, upon written
request of Borrower to Agent, Agent, on behalf of the Banks, shall
release the Additional Collateral, provided that no such release shall
be effective until confirmed by Agent in writing. In connection with
such release Agent shall provide to Borrower, and the Banks hereby
authorize Agent to provide to Borrower, such UCC partial release
statements and mortgage releases as are appropriate.
(c) At any time after the Additional Collateral has been
released pursuant to subpart (b) above or otherwise, and in addition to
any other right that Agent and the Banks may have pursuant to this
Agreement or otherwise, upon written request of Agent whenever made
after the occurrence of an Event of Default, Borrower shall, and shall
cause each Guarantor of Payment, to promptly grant to Agent, for the
benefit of the Banks, as additional security for the Secured Debt a
first priority security interest in or Lien on the Additional
Collateral pursuant to such security agreements, intellectual property
assignment agreements, pledge agreements, mortgages (or deeds of trust,
if applicable) or other documents, instruments or agreements or such
thereof as Agent and the Required Banks may reasonably require.
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17. Section 6.4 of the Credit Agreement is hereby amended to add the
words "and Equipment" immediately after the word "Inventory" in subsection (a)
thereof.
18. Section 7.14 of the Credit Agreement is hereby deleted in its
entirety and to insert in place thereof, respectively, the following:
SECTION 7.14. REGULATIONS. Borrower is not engaged principally
or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any "margin stock"
(within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System of the United States of America). Neither the
granting of any Loan (or any conversion thereof) or Letter of Credit
nor the use of the proceeds of any Loan or Letter of Credit will
violate, or be inconsistent with, the provisions of Regulation U or X
or any other Regulation of such Board of Governors.
19. Sections 9.1 and 9.2 of the Credit Agreement are hereby amended to
add the words "and the obligation of Agent to issue any Letter of Credit"
immediately after the word "Loan" in the respective subsections (a) thereof.
20. Article IX of the Credit Agreement is hereby amended to add the
following new Section 9.6 thereto:
Section 9.6. LETTERS OF CREDIT. If the maturity of the Notes
shall be accelerated pursuant to Sections 9.1 or 9.2 hereof, Borrower
shall immediately deposit with Agent, as security for Borrower's and
any Guarantor of Payment's obligations to reimburse Agent and the Banks
for any then outstanding Letters of Credit, cash equal to the Letter of
Credit Exposure. Agent and the Banks are hereby authorized, at their
option, to deduct any and all such amounts from any deposit balances
then owing by any Bank to or for the credit or account of any Company,
as security for Borrower's and any Guarantor of Payment's obligations
to reimburse Agent and the Banks for any then outstanding Letters of
Credit.
21. Section 11.10(A) of the Credit Agreement is hereby amended to add
the following new subsection (d) thereto:
(d) and that Bank's interest in any Letter of Credit;
22. Section 11.10(B) of the Credit Agreement is hereby amended to add
the following new subsection (f) thereto:
(f) and that Bank's interest in any Letter of Credit.
23. The Credit Agreement is hereby amended to add a new Schedule 3
thereto in the form of Schedule 3 attached hereto.
24. Concurrently with the execution of this Amendment (except with
respect to subpart (i) hereof), Borrower shall:
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(a) cause each Guarantor of Payment to consent and agree to and
acknowledge the terms of this Amendment;
(b) execute and deliver to Agent an Intellectual Property Collateral
Assignment Agreement, in form and substance satisfactory to Agent, dated as of
June 30, 2001;
(c) execute and deliver to Agent a Pledge Agreement, in form and
substance satisfactory to Agent, dated as of June 30, 2001, together with all of
the stock certificates of Borrower's domestic Subsidiaries pledged thereunder
and all accompanying stock transfer powers;
(d) execute and deliver to Agent each Mortgage, in form and substance
satisfactory to Agent, dated as of June 30, 2001, with respect to the Real
Property owned by Borrower as set forth on Schedule 3 hereto;
(e) cause each Guarantor of Payment to execute and deliver to Agent a
First Amendment to Security Agreement, each in form and substance satisfactory
to Agent, dated as of June 30, 2001;
(f) cause each Guarantor of Payment to execute and deliver to Agent an
Intellectual Property Collateral Assignment Agreement, each in form and
substance satisfactory to Agent, dated as of June 30, 2001;
(g) cause each Guarantor of Payment to execute and deliver to Agent a
Pledge Agreement, each in form and substance satisfactory to Agent, dated as of
June 30, 2001, together with all of the stock certificates of such Guarantor of
Payment's domestic Subsidiaries pledged thereunder and all accompanying stock
transfer powers;
(h) with respect to the Real Property owned by a Guarantor of Payment
as set forth on Schedule 3 hereto, cause each such Guarantor of Payment to
execute and deliver to Agent each of the Mortgages relating to such Real
Property, each in form and substance satisfactory to Agent, dated as of June 30,
2001;
(i) cause its Subsidiary, TOCCO, Inc., an Alabama corporation, to
execute and deliver to Agent a Debenture, in form and substance satisfactory to
Agent, on or before July 31, 2001;
(j) pay to Agent, for the pro rata benefit of the Banks, an amendment
fee of Seventy-Five Thousand Dollars ($75,000); and
(k) pay all legal fees and expenses of Agent in connection with this
Amendment.
25. Borrower hereby represents and warrants to Agent and the Banks that
(a) Borrower has the legal power and authority to execute and deliver this
Amendment, (b) the officers executing this Amendment have been duly authorized
to execute and deliver the same and bind Borrower with respect to the provisions
hereof, (c) the execution and delivery hereof by Borrower and the performance
and observance by Borrower of the provisions hereof do not violate or conflict
with the organizational agreements of Borrower or any law applicable to Borrower
or result in a breach
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of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against Borrower, (d) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment or by the
performance or observance of any provision hereof, (e) Borrower is not aware of
any claim or offset against, or defense or counterclaim to, any of Borrower's
obligations or liabilities under the Credit Agreement or any Related Writing and
(f) this Amendment constitutes a valid and binding obligation of Borrower in
every respect, enforceable in accordance with its terms.
26. Borrower, by signing below, hereby waives and releases Agent and
each of the Banks and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which Borrower is aware, such waiver and release
being with full knowledge and understanding of the circumstances and effect
thereof and after having consulted legal counsel with respect thereto.
27. Each reference that is made in the Credit Agreement or any Related
Writing to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Amendment is a Related Writing as defined
in the Credit Agreement.
28. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile signature,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
29. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
[Remainder of page intentionally left blank.]
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30. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS HEREBY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR
ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY BANK'S ABILITY
TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER,
AGENT AND THE BANKS, OR ANY THEREOF.
PARK-OHIO INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx, Secretary
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President
and Senior Banker
THE HUNTINGTON NATIONAL BANK,
as Co-Agent and as a Bank
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, NORTHEASTERN OHIO
By: /s/ Xxx X. Xxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
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GUARANTOR ACKNOWLEDGMENT
The undersigned consents and agrees to and acknowledges the terms of
the foregoing Second Amendment Agreement. The undersigned specifically agrees to
the waivers set forth in such agreement, including, but not limited to, the jury
trial waiver. The undersigned further agrees that the obligations of the
undersigned pursuant to the Guaranty of Payment executed by the undersigned
shall remain in full force and effect and be unaffected hereby.
The undersigned hereby waives and releases Bank and Bank's directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
claims, offsets, defenses and counterclaims of which the undersigned is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
ATBD, INC.
CASTLE RUBBER COMPANY
CICERO FLEXIBLE PRODUCTS, INC.
DONEGAL BAY LTD.
GENERAL ALUMINUM MFG. COMPANY
ILS TECHNOLOGY, INC.
INTEGRATED HOLDING COMPANY
INTEGRATED LOGISTICS SOLUTIONS, INC.
INTEGRATED LOGISTICS SOLUTIONS LLC
(for itself and as successor by merger to
Columbia Nut & Bolt LLC, GIS Industries,
Inc. and Industrial Fasteners LLC)
INTEGRATED LOGISTICS HOLDING COMPANY
PARK AVENUE TRAVEL LTD.
PARK-OHIO STRUCTURAL HARDWARE LLC
PHARMACEUTICAL LOGISTICS, INC.
PHARMACY WHOLESALE LOGISTICS, INC.
PMC-COLINET, INC.
PMC INDUSTRIES CORP.
PRECISION MACHINING CONNECTION LLC
RB&W MANUFACTURING LLC
THE AJAX MANUFACTURING COMPANY
THE METALLOY CORPORATION
TOCCO, INC.
TRICKERATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Secretary of each of
the foregoing companies
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SCHEDULE 3
(Real Property Locations)
Castle Rubber Company The Metalloy Corporation
0000 Xxxxxxxx Xxxxxx 000 X. Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
General Aluminum Mfg. Company The Metalloy Corporation
0000 Xxxxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Park-Ohio Industries, Inc. The Metalloy Corporation
00000 Xxxxx Xxxxx 00 X. 000-000 X. Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Park-Ohio Industries, Inc. The Metalloy Corporation
0000 Xxxxxxx Xxxxxx 0000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Park-Ohio Industries, Inc. The Metalloy Corporation
000 Xxxx 00xx Xxxxxx 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Pharmacy Wholesale Logistics, Inc. The Metalloy Corporation
00000 Xxxxxxx Xxxxxx Xxxxxx Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 000 XXX Xxxxxxxxx
Xxxxxxx, XX 00000
Precision Machining Connection LLC
00000 Xxxxxxxx Xxxxxxxxx XXXXX, Inc.
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxx, XX 00000
RB&W Manufacturing LLC
000 Xxxxxx Xxxx XXXXX, Inc.
Xxxxxxxx, XX 00000 00000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, XX 00000
RB&W Manufacturing LLC
0000 Xxxxxxx Xxxxxx XXXXX, Xxx.
Xxxxxxxxx, XX 00000 00 Xxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, XX b33olg
RB&W Manufacturing LLC
000 Xxxxxxx Xxx Xxxx XXXXX, Inc.
Xxxxxxxxx, XX 00000 0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
The Ajax Manufacturing Company
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxx 00000
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