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Exhibit (4)(D)
FIRST AMENDMENT AGREEMENT
First Amendment Agreement made as of the 19th day of June, 1995, by and
among PARKOHIO INDUSTRIES, INC., an Ohio corporation (the "Borrower"), SOCIETY
NATIONAL BANK, as Agent (the "Agent") and the banks listed on Schedule I
attached hereto and made a part hereof (the "Banks):
WHEREAS, the Borrower, the Agent and the Banks are parties to a certain
credit agreement dated April 11, 1995, as it may from time to time be amended,
supplemented or otherwise modified, which provides, among other things, for
revolving credits and term loans aggregating One Hundred Million Dollars until
March 31, 1999, all upon certain terms and conditions (the "Credit Agreement");
WHEREAS, the Borrower, the Agent and the Banks desire to amend the
Credit Agreement by modifying certain financial covenants and incorporating a
form of assignment agreement;
WHEREAS, each 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 and for other valuable considerations, the Borrower, the Agent
and the Banks agree as follows:
1. The Credit Agreement is hereby amended as of April 11, 1995 by
deleting Section 5.7 thereof in its entirety and by inserting in place thereof
the following:
SECTION 5.7. WORKING CAPITAL. Borrower will not suffer or
permit the Consolidated Net Current Assets at any time to fall below
the current minimum amount required, which current minimum amount
required shall be (a) Fifty Million Dollars ($50,000,000) on March 31,
1995 through December 30, 1996, (b) Seventy Million Dollars
($70,000,000) on December 31, 1996 through December 30, 1997 and (c)
Eighty Million Dollars ($80,000,000) on December 31, 1997 and
thereafter, based upon Borrower's financial statements for the most
recent calendar quarter. Borrower and its Consolidated Subsidiaries
will maintain at all times the ratio of Current Assets to Current
Liabilities of no less than the current minimum ratio required, which
current minimum ratio required shall be (a) 1.75 to 1.00 on March 31,
1995 through December 30, 1996, and (b) 2.00 to 1.00 on December 31,
1996 and thereafter, based upon Borrower's financial statements for the
most recent calendar quarter.
2. The Credit Agreement is hereby amended as of April 11, 1995 by
deleting Section 5.9 thereof in its entirety and by inserting in place thereof
the following:
SECTION 5.9. NET WORTH. Borrower will not suffer or permit the
Consolidated Net Worth of Borrower and its Consolidated Subsidiaries at
any time to fall below the current minimum amount required, which
current minimum amount required shall be Forty One Million Dollars
($41,000,000) on March 31, 1995 through December 30, 1995, (b) Fifty
Four Million Dollars ($54,000,000) on December 31, 1995 through
December 30,
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1996, (c) Seventy Two Million Dollars ($72,000,000) on
December 31, 1996 through December 30, 1997, and (c) Ninety Five
Million Dollars ($95,000,000) on December 31, 1997 and thereafter,
based upon Borrower's financial statements for the most recent calendar
quarter.
3. The Credit Agreement is hereby amended as of April 11, 1995 by
deleting Section 5.10 thereof in its entirety and by inserting in place thereof
the following:
SECTION 5.10. LEVERAGE. Borrower and its Consolidated
Subsidiaries will not suffer or permit at any time the ratio of (a)
Total Liabilities minus Subordinated indebtedness to (b) Consolidated
Net Worth (hereinafter referred to as "Leverage Ratio"), to exceed (i)
4.00 to 1.00 on June 30, 1995 through December 30, 1995, (ii) 3.30 to
1.00 on December 31, 1995 through December 30, 1996, (iii) 2.70 to 1.00
on December 31, 1996 through December 30, 1997, and (iv) 2.00 to 1.00
on December 31, 1997 and thereafter, based upon Borrower's financial
statements for the most recent calendar quarter.
4. The Credit Agreement is hereby amended by deleting Section 10.13
thereof in its entirety and by inserting in place thereof the following:
SECTION 10.13. BANK ASSIGNMENTS/PARTICIPATIONS.
(a) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell to one or more financial institutions ("Participants")
participating interests in any Note held by such Bank, any Commitment
of such Bank or any other interest of such Bank hereunder and under the
Related Writings; provided that, anything herein to the contrary
notwithstanding, each of the Banks hereunder shall retain the lesser of
(i) such Bank's Commitment hereunder and the aggregate amount of such
Bank's Notes issued hereunder or (ii) an undivided ten percent (10%) of
the original Commitment of the Banks (unless the original Commitment of
the Banks hereunder shall be permanently reduced and then each Bank
shall retain ten percent (10%) of the amount as so reduced) and of the
aggregate amount of the Notes issued hereunder. In the event of any
such sale by a Bank of participating interests to a Participant, such
Bank's obligations under this credit agreement to the other parties to
this credit agreement shall remain unchanged; such Bank shall remain
solely responsible for the performance thereof; such Bank shall remain
the holder of any such Note for all purposes under this credit
agreement and the Related Writings; and the Borrower and the Agent
shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this credit agreement and
the Related Writings. The Borrower agrees that if amounts outstanding
under this credit agreement and the Notes are due or unpaid, or shall
have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in
amounts owing under this credit agreement and any Note to the same
extent as if the amount of its participating interest were owing
directly to it as a Bank under this credit agreement or any Note,
provided that such Participant shall only be entitled to such right of
set-off if it shall have agreed in the agreement pursuant to which it
shall have acquired its participating
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interest to share with the Banks the proceeds thereof as provided in
Section 8.5. The Borrower also agrees that each Participant shall be
entitled to the benefits of Article III and Sections 10.7, 10.8 and
10.9 with respect to its participation in the Commitments and the loans
outstanding from time to time.
(b) With the written consent of the Agent, any Bank may
(subject to the proviso set forth below), in the ordinary course of its
commercial banking business and in accordance with applicable law, at
any time sell to one or more financial institutions ("Purchasing
Banks") a part of its rights and obligations under this credit
agreement and the Notes, pursuant to an Assignment and Acceptance
executed by such Purchasing Bank, such transferor Bank and the Agent)
and delivered to the Agent for its acceptance and recording in the
Register; provided that, anything herein to the contrary
notwithstanding, each of the Banks hereunder shall retain the lesser of
(i) such Bank's Commitment hereunder and the aggregate amount of such
Bank's Notes issued hereunder or (ii) an undivided ten percent (10%) of
the original Commitment of the Banks (unless the original Commitment of
the Banks hereunder shall be permanently reduced and then each Bank
shall retain ten percent (10%) of the amount as so reduced) and of the
aggregate amount of the Notes issued hereunder, and FURTHER PROVIDED
that, prior to the occurrence of an Event of Default, no Bank shall
sell its interest hereunder pursuant to an assignment without the
written consent of the Borrower, which consent shall not be
unreasonably withheld. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date determined
pursuant to such Assignment and Acceptance, (x) the Purchasing Bank
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank
hereunder with a Commitment as set forth therein, and (y) the
transferor Bank thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
credit agreement. Such Assignment and Acceptance shall be deemed to
amend this credit agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of the appropriate Commitments arising from the
purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this credit agreement and the
Notes. On or prior to the Transfer Effective Date determined pursuant
to such Assignment and Acceptance, the Borrower shall execute and
deliver to the Agent, in exchange for the surrendered Note, a new
Revolving Credit Note and/or Term Note, as the case may be, to the
order of such Purchasing Bank in an amount equal to the Revolving
Credit Commitment and/or the Term Loan Commitment assumed by it
pursuant to such Assignment and Acceptance and new Notes to the order
of the transferor Bank in an amount equal to the Commitment retained by
it hereunder. Such new Notes shall be dated the Closing Date and shall
otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Bank shall be returned by the Agent to
the Borrower marked "cancelled".
(c) The Agent shall maintain at its address referred to in
Section 10.6 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of
the loans owing to, each Bank from time to time. The entries in the
Register shall
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be conclusive, in the absence of manifest error, and the Borrower, the
Agent and the Banks may treat each financial institution whose name is
recorded in the Register as the owner of the loan recorded therein for
all purposes of this credit agreement. The Register shall be available
for inspection by the Borrower or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by a transferor Bank, a Purchasing Bank and the Agent, together with
payment by the transferor Bank and/or the Purchasing Bank of a
registration and processing fee of Two Thousand Five Hundred Dollars
($2,500), to be retained by the Agent for its own account, the Agent
shall (i) promptly accept such Assignment and Acceptance, and (ii) on
the Transfer Effective Date determined pursuant thereto, record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Borrower.
(e) The Borrower authorizes each Bank to disclose to any
Participant or Purchasing Bank (each, a "Transferee") and any
prospective Transferee any and all financial information in such Bank's
possession concerning the Borrower and its Subsidiaries which has been
delivered to such Bank by or on behalf of the Borrower or its
Subsidiaries pursuant to this credit agreement or which has been
delivered to such Bank by or on behalf of the Borrower in connection
with such Bank's credit evaluation of the Borrower and its Subsidiaries
prior to becoming a party to this credit agreement.
(f) If, pursuant to this section, any interest in this credit
agreement or any Note is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the United
States or any state thereof, the transferor Bank shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i)
to represent to the transferor Bank (for the benefit of the transferor
Bank, the Agent and the Borrower) that under applicable law and
treaties no taxes will be required to be withheld by the Agent, the
Borrower or the transferor Bank with respect to any payments to be made
to such Transferee in respect of the loans hereunder, (ii) to furnish
to the transferor Bank (and, in the case of any Purchasing Bank
registered in the Register, the Agent and the Borrower) either (A) U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 or (B) United States Internal Revenue Service Form W-8 or
W-9, as applicable (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest
payments hereunder), and (iii) to agree (for the benefit of the
transferor Bank, the Agent and the Borrower) to provide the transferor
Bank (and, in the case of any Purchasing Bank registered in the
Register, the Agent and the Borrower) a new Form 4224 or Form 1001 or
Form W-8 or W-9, as applicable, upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance
with applicable U.S. laws and regulations and amendments duly executed
and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(g) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
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5. The Credit Agreement is hereby amended to add a new Exhibit C in the
form of Schedule II, attached hereto.
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6. Borrower hereby represents and warrants to the Agent and the Banks
that (a) Borrower has the legal power and authority to execute and deliver this
First Amendment Agreement; (b) officials executing this First Amendment
Agreement 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 of any
provision of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against Borrower; (d) no Possible Default
exists under the Credit Agreement, nor will any occur immediately after the
execution and delivery of the First Amendment Agreement or by the performance or
observance of any provision hereof; (e) neither Borrower nor any Subsidiary has
any claim or offset against, or defense or counterclaim to, any of Borrower's or
any Subsidiary's obligations or liabilities under the Credit Agreement or any
Related Writing, and Borrower and each Subsidiary hereby waives and releases the
Agent and each of the Banks from any and all such claims, offsets, defenses and
counterclaims of which Borrower and any Subsidiary 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,
and (f) this First Amendment Agreement constitutes a valid and binding
obligation of Borrower in every respect, enforceable in accordance with its
terms.
7. Each reference that is made in the Credit Agreement or any other
writing 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.
8. This First Amendment Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, 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.
9. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio.
Address: 600 Tower East PARK-OHIO INDUSTRIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: Society Center SOCIETY NATIONAL BANK,
127 Public Square Individually and as Agent
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ By:
Attn: Commercial Loans- ----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
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Cleveland District
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Address: Huntington Building THE HUNTINGTON NATIONAL BANK
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
Attn: Corporate Banking Div. --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NBD BANK, N.A.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Midwest Banking By:
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice Pres.
The undersigned consent to the terms hereof.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ INDUSTRIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: 600 Tower East CASTLE RUBBER COMPANY
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: 600 Tower East ▇▇▇ HOME PRODUCTS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: 600 Tower East GENERAL ALUMINUM MFG. COMPANY
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
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Address: 600 Tower East BLUE FALCON INVESTMENTS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: 600 Tower East RB&W CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: 600 Tower East BLUE FALCON FORGE, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
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and
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
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SCHEDULE I
SOCIETY NATIONAL BANK
NBD BANK, N.A.
THE HUNTINGTON NATIONAL BANK
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SCHEDULE II
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 11, 1995,
(as amended by the First Amendment Agreement dated as of June ___, 1995, and as
may be further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among PARKOHIO INDUSTRIES, INC., an Ohio corporation
(the "Borrower"), the Banks named therein and SOCIETY NATIONAL BANK, as agent
for the Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meaning
given to them in the Credit Agreement.
___________(the "Assignor") and _____________________ (the "Assignee")
agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a _____% interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the Assignor's Commitment thereunder in a principal amount as set
forth on Annex 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any Related Writing, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Related Writing or any other instrument
or document furnished pursuant thereto, or any collateral security granted in
connection therewith, if any, other than that it has not created any adverse
claim upon the interest being assigned by it hereunder and that such interest is
free and clear of any such adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligor or the performance
or the observance by the Borrower, any of its Subsidiaries or any other obligor
or any of their respective obligations under the Credit Agreement or any Related
Writing or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note(s) held by it evidencing the Assignor's
Commitment and requests that the Agent exchange such Note(s) for a new Note or
Notes payable to the Assignee and a new Note or Notes payable to the Assignor in
the respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, and the First Amendment Agreement,
together with copies of the financial statements delivered pursuant to Section
5.3 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees
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that it will, independently and without reliance upon the Assignor, the Agent or
any other Bank, based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the Related Writings or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the Related Writings or
other instruments or documents furnished pursuant hereto or thereto as are
delegated to the Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to subsection
10.13(f) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
__________, 19__ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 10.13 of the Credit Agreement,
effective as of the Effective Date (which shall not be, unless otherwise agreed
to by the Agent, earlier than three Cleveland Banking Days after the date of
such acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
Related Writings and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. The Assignee advises the Agent that the address listed on Annex 1 is
its address for notices under the Credit Agreement.
8. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the ____ day of_______________, 19___, by their
respective duly authorized officers on Annex 1 hereto.
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ANNEX 1 to the
Assignment and Acceptance
-------------------------
Re: Credit Agreement, dated as of
April 11, 1995, as amended, among
Park-Ohio Industries, Inc., the Banks
from time to time parties thereto, and
Society National Bank, as Agent
-------------------------------
Name of Assignor:
Name of Assignee:
Transfer Effective Date of Assignment:
Principal Percentage Percentage
Amount of Revolving of Assignor's of Total Revolving
Credit Commitment Assigned Interest Assigned Credit Commitment Amount
-------------------------- ----------------- ------------------------
$ % %
Principal Percentage Percentage
Amount of Term of Assignor's of Total Term
Loan Commitment Assigned Interest Assigned Loan Commitment Amount
$ % %
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
----------------------- ----------------------------
Title: Title:
Consented to: Consented to:
SOCIETY NATIONAL BANK PARK-OHIO INDUSTRIES, INC.
as Agent
By: By:
----------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President Title:
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ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 11, 1995,
(as amended by the First Amendment Agreement dated as of June ___, 1995, and as
may be further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among PARKOHIO INDUSTRIES, INC., an Ohio corporation
(the "Borrower"), the Banks named therein and SOCIETY NATIONAL BANK, as agent
for the Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meaning
given to them in the Credit Agreement.
SOCIETY NATIONAL BANK (the "Assignor") and NATIONAL CITY BANK (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a twenty percent (20%) interest (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement with respect to the Assignor's Commitment thereunder in a
principal amount as set forth on Annex 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any Related Writing, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Related Writing or any other instrument
or document furnished pursuant thereto, or any collateral security granted in
connection therewith, if any, other than that it has not created any adverse
claim upon the interest being assigned by it hereunder and that such interest is
free and clear of any such adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligor or the performance
or the observance by the Borrower, any of its Subsidiaries or any other obligor
or any of their respective obligations under the Credit Agreement or any Related
Writing or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note(s) held by it evidencing the Assignor's
Commitment and requests that the Agent exchange such Note(s) for a new Note or
Notes payable to the Assignee and a new Note or Notes payable to the Assignor in
the respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, and the First Amendment Agreement,
together with copies of the financial statements delivered pursuant to Section
5.3 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Bank, based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement,
the Related Writings or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints
16
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the Related
Writings or other instruments or documents furnished pursuant hereto or thereto
as are delegated to the Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the provisions
of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to subsection
10.13(f) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
__________, 1995 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 10.13 of the Credit Agreement,
effective as of the Effective Date (which shall not be, unless otherwise agreed
to by the Agent, earlier than three Cleveland Banking Days after the date of
such acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
Related Writings and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. The Assignee advises the Agent that the address listed on Annex 1 is
its address for notices under the Credit Agreement.
8. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the ____ day of _______________, 1995, by their
respective duly authorized officers on Annex 1 hereto.
2
17
ANNEX 1 to the
Assignment and Acceptance
-------------------------
Re: Credit Agreement, dated as of
April 11, 1995, as amended, among
Park-Ohio Industries, Inc., the Banks
from time to time parties thereto,
and Society National Bank, as Agent
-----------------------------------
Name of Assignor: SOCIETY NATIONAL BANK
Name of Assignee: NATIONAL CITY BANK
Transfer Effective Date of Assignment:
Principal Percentage Percentage
Amount of Revolving of Assignor's of Total Revolving
Credit Commitment Assigned Interest Assigned Credit Commitment Amount
$ 6,500,000 20% 10%
Principal Percentage Percentage
Amount of Term of Assignor's of Total Term
Loan Commitment Assigned Interest Assigned Loan Commitment Amount
$ 3,500,000 20% 10%
NATIONAL CITY BANK SOCIETY NATIONAL BANK
By: By:
--------------------------------- ----------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Consented to: Consented to:
SOCIETY NATIONAL BANK PARK-OHIO INDUSTRIES, INC.
as Agent
By: By:
--------------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President Title:
18
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 11, 1995,
(as amended by the First Amendment Agreement dated as of June ___, 1995, and as
may be further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among PARKOHIO INDUSTRIES, INC., an Ohio corporation
(the "Borrower"), the Banks named therein and SOCIETY NATIONAL BANK, as agent
for the Banks (in such capacity, the "Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meaning
given to them in the Credit Agreement.
SOCIETY NATIONAL BANK (the "Assignor") and MELLON BANK (the "Assignee")
agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a ten percent (10%) interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Credit
Agreement with respect to the Assignor's Commitment thereunder in a principal
amount as set forth on Annex 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any Related Writing, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Related Writing or any other instrument
or document furnished pursuant thereto, or any collateral security granted in
connection therewith, if any, other than that it has not created any adverse
claim upon the interest being assigned by it hereunder and that such interest is
free and clear of any such adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligor or the performance
or the observance by the Borrower, any of its Subsidiaries or any other obligor
or any of their respective obligations under the Credit Agreement or any Related
Writing or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note(s) held by it evidencing the Assignor's
Commitment and requests that the Agent exchange such Note(s) for a new Note or
Notes payable to the Assignee and a new Note or Notes payable to the Assignor in
the respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, and the First Amendment Agreement,
together with copies of the financial statements delivered pursuant to Section
5.3 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Bank, based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement,
the Related Writings or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints
19
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the Related
Writings or other instruments or documents furnished pursuant hereto or thereto
as are delegated to the Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the provisions
of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to subsection
10.13(f) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
__________, 1995 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 10.13 of the Credit Agreement,
effective as of the Effective Date (which shall not be, unless otherwise agreed
to by the Agent, earlier than three Cleveland Banking Days after the date of
such acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
Related Writings and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. The Assignee advises the Agent that the address listed on Annex 1 is
its address for notices under the Credit Agreement.
8. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the ____ day of _______________, 1995, by their
respective duly authorized officers on Annex 1 hereto.
2
20
ANNEX 1 to the
Assignment and Acceptance
-------------------------
Re: Credit Agreement, dated as of
April 11, 1995, as amended, among
Park-Ohio Industries, Inc., the Banks
from time to time parties thereto,
and Society National Bank, as Agent
-----------------------------------
Name of Assignor: SOCIETY NATIONAL BANK
Name of Assignee: MELLON BANK
Transfer Effective Date of Assignment:
Principal Percentage Percentage
Amount of Revolving of Assignor's of Total Revolving
Credit Commitment Assigned Interest Assigned Credit Commitment Amount
$ 3,250,000 10% 5%
Principal Percentage Percentage
Amount of Term of Assignor's of Total Term
Loan Commitment Assigned Interest Assigned Loan Commitment Amount
$ 1,750,000 10% 5%
MELLON BANK SOCIETY NATIONAL BANK
By: By:
--------------------------------- ------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Consented to: Consented to:
SOCIETY NATIONAL BANK PARK-OHIO INDUSTRIES, INC.
as Agent
By: By:
--------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President Title:
21
FIRST AMENDMENT AGREEMENT - MAY, 1995