Exhibit 10(lxxv)
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 4, 1996
among NACCO MATERIALS HANDLING GROUP, INC., the BANKS party hereto, the
CO-ARRANGERS and CO-AGENTS listed on the signature pages hereof and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks listed on the signature pages
hereof and the Agent are parties to a $350,000,000 Credit Agreement dated as of
February 28, 1995 (the "Existing Agreement");
WHEREAS, each of Star Bank, N.A. and The Bank of Tokyo, Ltd. desires to
reduce its Commitment under the Existing Agreement to zero and cease to be a
party to the Existing Agreement on the Restatement Effective Date; and
WHEREAS, the parties hereto (other than Star Bank, N.A. and The Bank of
Tokyo, Ltd.) desire to amend the Existing Agreement as set forth herein and to
restate the Existing Agreement in its entirety to read as set forth in the
Existing Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Existing Agreement
has the meaning assigned to such term in the Existing Agreement. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Existing Agreement shall from and after the Restatement
Effective Date refer to the Existing Agreement as amended and restated hereby.
SECTION 2. Amendments to Definitions. Section 1.1 of the Existing Agreement
is amended as follows:
(a) The definitions of "Final Termination Date" and "Termination
Date" are each amended by replacing the date "February 28, 2000" with the date
"June 4, 2001".
(b) The following new definitions are added in the appropriate
alphabetical order:
"Amendment and Restatement" means the Amended and Restated Credit
Agreement dated as of June 4, 1996 among the parties hereto, amending
and restating this Agreement.
"Co-Agents" means the Banks identified on the signature pages of
the Amendment and Restatement as Co-Agents, solely in their capacity as
Co-Agents under the credit facility provided herein.
"Co-Arrangers" means the Banks identified on the signature pages
of the Amendment and Restatement as Co-Arrangers, solely in their
capacity as Co-Arrangers of the credit facility provided herein.
"Restatement Effective Date" means the date the Amendment and
Restatement becomes effective in accordance with Section 14 of the
Amendment and Restatement.
(c) The definition of "Bank" is amended to read as follows:
"Bank" means each bank (other than Star Bank, N.A. and The Bank of
Tokyo, Ltd.) listed on the signature pages of the Amendment and
Restatement, each Assignee which becomes a Bank pursuant to
Section 9.6(c), and their respective successors.
(d) Clause (i) of the definition of "Commitment" is amended to
read as follows:
(i) with respect to each Bank listed on the signature pages of the
Amendment and Restatement, the amount set forth opposite the
name of such Bank on said signature pages or
SECTION 3. New Pricing Schedule. The Pricing Schedule to the
Existing Agreement is deleted and replaced by the Pricing Schedule attached
hereto.
SECTION 4. Date From Which New Facility Fees Accrue. Section
2.10(a)(i) of the Existing Agreement is amended by deleting the reference to
"Effective Date" and substituting "Restatement Effective Date" therefor.
SECTION 5. List of Existing Investments Updated. Exhibit M to
the Existing Agreement is deleted and replaced by Exhibit M attached hereto.
SECTION 6. Increased Investments Permitted. Section 5.15 of the
Existing Agreement is amended as
follows:
(i) Clause (a) is amended to read as follows:
(a) Investments existing on June 4, 1996 and described in Exhibit
M attached hereto in an aggregate amount not exceeding $20,125,000; and
(ii) the word "and" at the end of clause (f) is deleted; clause
(g) is redesignated as clause (h); the reference in clause (e) to
"clause (g)"is changed to refer to "clause (h)"; and the following new
clause (g) is added:
(g) an Investment (described to the Banks as "Project Olive") made
after June 4, 1996 in a European manufacturer and distributor; provided
that such Investment shall not exceed $10,000,000 in amount; it being
understood that any portion of such Investment that exceeds such amount
shall be permitted if the excess above such amount is an Investment
permitted by clause (h) of this Section; and
SECTION 7. Specification of Certain Dates. (a) The words "the
date of this Agreement" in Sections 5.9 and 5.17 of the Existing Agreement are
changed to "February 28, 1995".
(b) The words "the date of this Agreement" in Section 8.2 of the
Existing Agreement and the words "the date hereof", wherever they appear in
Section 8.3 thereof, are changed to "June 4, 1996".
SECTION 8. Updated Representations as to Financial Information.
Section 4.4 of the Existing Agreement is amended to read as follows:
SECTION 4.4. Financial Information. (a) The consolidated balance sheet of
the Borrower and its Subsidiaries as of December 31, 1995 and the related
consolidated statements of income, cash flows and stockholders' equity for the
Fiscal Year then ended, reported on by Arthur Andersen LLP, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of the Borrower and its Subsidiaries as of
such date and their consolidated results of operations and cash flows for such
Fiscal Year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as of March 31, 1996 and the related unaudited
consolidated statements of income, cash flows and stockholders' equity
for the three months then ended, a copy of which has been delivered to
each of the Banks, fairly present, on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its Subsidiaries as
of such date and their consolidated results of operations and cash
flows for such three-month period (subject to normal year-end
adjustments).
(c) Since March 31, 1996 there has been no material adverse change
in the business, financial position or results of operations of the
Borrower and its Subsidiaries, considered as a whole.
SECTION 9. Additional Representations and Warranties. The Borrower
represents and warrants that as of the Restatement Effective Date after giving
effect to the amendment and restatement of the Existing Agreement provided for
herein:
(a) no Default will have occurred and be continuing; and
(b) each representation and warranty of the Borrower set forth in
the Agreement will be true as though made on and as of the Restatement
Effective Date.
SECTION 10. Co-Arrangers and Co-Agents. The following new Section 7.10 is
added at the end of Article 7 of the Existing
Agreement:
SECTION 7.10. Co-Arrangers and Co-Agents. The Co-Arrangers and Co-Agents,
in their capacities as such, shall have no duties, obligations or liabilities of
any kind hereunder.
SECTION 11. Role of Star Bank, N.A. and The Bank of Tokyo, Ltd. Each of
Star Bank, N.A.and The Bank of Tokyo, Ltd. is each signing this Amendment and
Restatement solely for the purpose of reducing its Commitment to zero and
complying with the provisions of Section 9.5 of the Existing Agreement, which
states that any such non-pro rata reduction of the Commitments requires the
consent of all the Banks. After the Restatement Effective Date, Star Bank, N.A.
and The Bank of Tokyo, Ltd. will have no obligations under the Existing
Agreement as amended and restated hereby, but will continue to have, with
respect to events occurring prior to the Restatement Effective Date, the
obligations set forth in Section 7.6 of the Existing Agreement and the benefits
of the indemnification provisions set forth in Sections 2.16, 8.3, 8.4 and
9.3(b) thereof.
SECTION 12. Governing Law. This Amendment and Restatement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 13. Counterparts. This Amendment and Restatement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 14. Conditions to Effectiveness. This Amendment and Restatement
shall become effective, and the Existing Agreement will be amended and restated
in its entirety to read as set forth in the Existing Agreement with the
amendments specified above, on the date when the Agent shall have received all
of the following:
(a) counterparts of this Amendment and Restatement signed by the
Borrower and all of the Banks that are parties to the Existing
Agreement (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have
received, in form satisfactory to it, facsimile or other written
confirmation from such party of execution of a counterpart hereof by
such party);
(b) evidence satisfactory to the Agent that (i) all loans
outstanding under the Existing Agreement and (ii) all interest and fees
accrued thereunder to but excluding the Restatement Effective Date have
been paid in full or the Borrower has made arrangements satisfactory to
the Agent to pay such amounts in full on the Restatement Effective
Date;
(c) an opinion of Geoffrey D. Lewis, Esq., Vice President, General
Counsel and Secretary of the Borrower, substantially in the form of
Exhibit O hereto; and
(d) all documents the Agent may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity
of the Existing Agreement, as amended and restated hereby, and any
other matters relevant hereto, all in form and substance satisfactory
to the Agent;
provided that this Amendment and Restatement shall not become effective or be
binding on any party hereto unless all of the foregoing conditions are satisfied
not later than June 24, 1996. The Agent shall promptly notify the Borrower and
the Banks of the Restatement Effective Date, and such notice shall be conclusive
and binding on all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Agreement to be duly executed as of the date first above written.
NACCO MATERIALS
HANDLING GROUP, INC.
By /s/ Jeffrey C. Mattern
Title: Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Co-Arranger and a Bank
By /s/ Patricia P. Lunka
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Co-Arranger and a Bank
By /s/ Michael J. Balok
Title: Managing Director
CITIBANK, N.A., as a Co-Arranger and a Bank
By /s/ Marjorie Futornick
Title: Vice President
THE BANK OF NOVA SCOTIA, as a
Co-Agent and a Bank
By /s/ Amanda S. Norsworthy
Title: Senior Team Leader-Loan Operations
THE FIRST NATIONAL BANK OF
CHICAGO, as a Co-Agent and a Bank
By /s/ L. Gene Buebe
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., as a Co-Agent and a Bank
By /s/ Brady S. Sadek
Title: Vice President & Deputy General Manager
ROYAL BANK OF CANADA, as a Co-Agent and a Bank
By /s/ Molly Drennan
Title: Manager, Corporate Banking
UNION BANK OF CALIFORNIA,
N.A., as a Co-Agent and a Bank
By /s/ Kevin McBride
Title: Vice President
KEY BANK OF WASHINGTON, as a Co-Agent and a Bank
By /s/ Kathleen J. Johanson
Title: Vice President
UNITED STATES NATIONAL BANK OF
OREGON, as a Co-Agent and a Bank
By /s/ Chris J. Karlin
Title: Vice President
WELLS FARGO BANK, N.A., as a Co-Agent and a Bank
By /s/ Bill Hauck
Title: Vice President
BANK OF SCOTLAND
By /s/ Catherine M. Oniffrey
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By /s/ Christopher C. Wardwell
Title: Managing Director
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Dean Balice
Title: Senior Vice President Branch Manager
MELLON BANK, N.A.
By /s/ Mark J. Johnston
Title: Assistant Vice President
THE SUMITOMO BANK, LTD.
By /s/ Hiroyuki Iwami
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.P.A.
By /s/ William DeAngelo
Title: First Vice President
By /s/ Wendell Jones
Title: Vice President
STAR BANK, N.A.
By /s/ John Barrett
Title: Vice President
THE BANK OF TOKYO, LTD. PORTLAND BRANCH
By /s/ M.W. Kringlen
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Patricia P. Lunka
Title: Vice President
PRICING SCHEDULE
Subject to the last sentence of this Pricing Schedule, each of
the terms "Facility Fee Rate", "Euro-Dollar Margin" and "CD Margin" means, for
any day, the rate per annum set forth below in the row opposite such term and in
the column corresponding to the Pricing Level that applies on such day:
- -------------- ------------ ----------- ----------- ---------- ----------
Pricing Level Level I Level II Level III Level IV Level V
- -------------- ------------ ----------- ----------- ---------- ----------
Facility Fee 0.100% 0.125% 0.200% 0.250% 0.375%
Rate
- -------------- ------------ ----------- ----------- ---------- ----------
Euro-Dollar 0.200% 0.250% 0.300% 0.500% 0.625%
Margin
- -------------- ------------ ----------- ----------- ---------- ----------
CD Margin 0.325% 0.375% 0.425% 0.625% 0.750%
- -------------- ------------ ----------- ----------- ---------- ----------
For purposes of this Pricing Schedule, the following terms have the
following meanings:
"Average Debt Ratio" means, for any Fiscal Quarter, the ratio of (i)
Average Total Debt during such Fiscal Quarter to (ii) the sum of (x) such
Average Total Debt plus (y) Consolidated Net Worth at the end of such Fiscal
Quarter.
"Average Total Debt" means, for any Fiscal Quarter, the sum of (i) the
daily average amount of Debt of the Borrower and its domestic Subsidiaries
outstanding during such Fiscal Quarter and (ii) the quotient obtained by
dividing (x) the sum of the amount of Debt of the Borrower's foreign
Subsidiaries outstanding at the end of each month included in such Fiscal
Quarter by (y) the number of months included in such Fiscal Quarter; provided
that for purposes of this definition the term "Debt" does not include Debt owed
by the Borrower to any Subsidiary or Debt owed by any Subsidiary to the Borrower
or to another Subsidiary.
"Level I Pricing" applies during any Rate Period if the Average Debt
Ratio for the Preceding Fiscal Quarter was less than or equal to 0.37 to 1.
"Level II Pricing" applies during any Rate Period if the Average Debt
Ratio for the Preceding Fiscal Quarter was greater than 0.37 to 1 but less than
or equal to 0.42 to 1.
"Level III Pricing" applies during any Rate Period if the Average Debt
Ratio for the Preceding Fiscal Quarter was greater than 0.42 to 1 but less than
or equal to 0.47 to 1.
"Level IV Pricing" applies during any Rate Period if the Average Debt
Ratio for the Preceding Fiscal Quarter was greater than 0.47 to 1 but less than
or equal to 0.52 to 1.
"Level V Pricing" applies during any Rate Period if the Average Debt
Ratio for the Preceding Fiscal Quarter was greater than 0.52 to 1.
"Preceding Fiscal Quarter" means, with respect to any Rate Period, the
most recent Fiscal Quarter ended before such Rate Period begins.
"Rate Period" means any period from and including the 46th day of a
Fiscal Quarter to and including the 45th day of the immediately succeeding
Fiscal Quarter.
If the Interest Coverage Ratio is equal to or less than 3.25 to 1 at
the end of any Fiscal Quarter, (i) the Facility Fee Rate applicable during the
Rate Period that begins on the 46th day of the following Fiscal Quarter shall be
0.125% per annum higher than the applicable rate shown in the table above and
(ii) the Euro-Dollar Margin and CD Margin applicable during such Rate Period
shall each be 0.750% per annum higher than the applicable rate shown in the
table above.