Exhibit 10(cxvii)
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of March 29, 1996 to the SECOND AMENDED AND
RESTATED CREDIT AGREEMENT dated as of October 11, 1990, amended and restated as
of April 18, 1995, among HAMILTON BEACH/PROCTOR-SILEX, INC., PROCTOR-SILEX
CANADA INC., PROCTOR-SILEX S. A. de C. V., as Borrowers, the BANKS signatory
thereto and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as U. S. Agent, and
THE CHASE MANHATTAN BANK OF CANADA, as Canadian Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent are parties to the Second
Amended and Restated Credit Agreement referred to above (as heretofore amended,
the "Credit Agreement") pursuant to which the Banks have agreed to extend credit
to the Borrowers as provided therein.
WHEREAS, pursuant to Section 2.09 of the Credit Agreement, the Company
has requested that the Revolving Credit Termination Date be extended to for an
Additional Period from the Existing Termination Date of May 8, 1998 to May 8,
1999.
WHEREAS, the Company has requested that the Banks consent to the
adoption of an amended Tax Sharing Agreement in the form of Exhibit A hereto to
take effect upon approval thereof by NACCO's Subsidiaries which are parties
thereto.
WHEREAS, the Company has requested the Banks and the Agents to amend the
Credit Agreement as provided herein.
WHEREAS, the Banks and the Agents are agreeable to such amendment on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein it is hereby agreed as follows:
1. Definitions.
All terms defined in the Credit Agreement shall be used herein as
defined in the Credit Agreement unless otherwise defined herein or the context
otherwise requires.
2. Consents.
(a) The Banks hereby consent to the Company's request pursuant to
Section 2.09 of the Credit Agreement to an extension of the Existing Termination
Date from May 8, 1998 to May 8, 1999.
(b) The Banks hereby consent to the adoption of an amended Tax Sharing
Agreement substantially in the form of Exhibit A hereto to take effect upon the
approval by NACCO's Subsidiaries which are parties thereto.
3. Amendments to the Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "Restricted Payments Period" in its entirety."
(b) Section 2.01(h) of the Credit Agreement is hereby amended by
deleting it in its entirety.
(c) Section 9.12 of the Credit Agreement is hereby amended by
restating it in full to read as follows:
"9.12 Restricted Payments. Except for the Holdings Dividend, the
Company shall not, and shall not permit any of the Subsidiaries to,
declare or make any Restricted Payments; provided that the Company may
make Restricted Payments subject to the satisfaction of the following
conditions on the date of such Restricted Payment and after giving effect
thereto:
(a) no Default has occurred or is continuing; and
(b) the aggregate amount of Restricted Payments made in any
fiscal year of the Company shall not exceed the lesser of (A) the
quotient of the sum of (i) Cash Flow of the Company and its
Subsidiaries for the Computation Period ending December 31 of the
immediately preceding fiscal year of the Company minus (ii) Fixed
Charges of the Company and its Subsidiaries for such Computation
Period divided by 1.05 and (B) the amount of the net income of the
Company and its Subsidiaries for such Computation Period; provided
that the Company shall be permitted to make Restricted Payments in
such fiscal year in excess of the limit set forth in this paragraph
(b) so long as (x) the Leverage Ratio as at the last day of such
Computation Period (computed by deducting from the Net Worth of the
Company the proposed Restricted Payment to be made pursuant to this
Section 9.12) is less than or equal to .35 to 1 and (y) the Interest
Coverage Ratio for such Computation Period is equal to or greater
than 4.0 to 1."
(d) Section 9.18(g) of the Credit Agreement is hereby amended by
restating it in full to read as follows:
"(g) Capital Lease Obligations of the Company and the
Subsidiaries in an aggregate principal amount outstanding (as to the Company and
the Subsidiaries taken together) not to exceed U. S. $20,000,000."
(e) Sections 9.21 (b) and (c) of the Credit Agreement is hereby
amended by restating it in full to read as follows:
"(b) The Company shall not, and shall not permit any of the
Subsidiaries to, enter into Interest Rate Protection Arrangements with respect
to interest on an aggregate notional principal amount at anytime in excess of
U. S. $120,000,000.
(c) The Company shall not, and shall not permit any of the
Subsidiaries to, enter into Foreign Currency Hedging Arrangements under which
exposure (defined as the total amount outstanding under such arrangements) of
the Company and the Subsidiaries exceeds U. S. $40,000,000 at any time."
3. Representations and Warranties.
In order to induce the Banks and the Agent to make this Amendment, the
Borrower hereby represents that:
(a) the execution and delivery of this Amendment and the performance of
the Obligors thereunder and under the Credit Agreement as amended hereby (i)
have been duly authorized by all necessary corporate action, will not violate
any provision of law, or the Borrower's charter or by-laws, or result in the
breach of or constitute a default, or require a consent, under any indenture or
other agreement or instrument to which the Borrower or any of its Subsidiaries
is a party or by which the Borrower or any of its Subsidiaries or their
respective property may be bound or affected, and (ii) each of this Amendment,
the Notes and the Credit Agreement as amended hereby constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms;
(b) the representations and warranties in Article 8 of the Credit
Agreement are true and correct as of the Closing Date (hereinafter defined) as
if they were being made on such date; and
(c) no Event of Default or event which with notice or lapse of time, or
both, would constitute an Event of Default, has occurred and is continuing on
the Closing Date.
4. Conditions of Effectiveness.
This Amendment shall be effective (as of the date hereof) on the date
when all of the following conditions shall have been met, and such date shall be
the "Closing Date":
(a) Counterparts of this Amendment shall have been executed by the
Borrower, the Banks and the Agent;
(b) The Agent shall have received copies of all corporate resolutions of
the Borrower authorizing the execution and delivery of this Amendment and the
Notes and the performance of the Borrower thereunder and under the Credit
Agreement as hereby amended, certified as of the Closing Date by the Secretary
or Assistant Secretary of the Borrower;
(c) The Agent shall have received a certificate dated the Closing Date
specifying the names and titles and including specimen signatures of the
officers authorized to sign this Amendment and the Notes;
(d) All legal matters incident to the transactions contemplated in the
Credit Agreement as amended hereby shall be satisfactory to the Banks ,the Agent
and their respective counsel.
5. Miscellaneous.
(a) Except as specifically amended hereby, all the provisions of the
Credit Agreement shall remain unamended and in full force and effect, and the
term "Credit Agreement", and words of like import shall be deemed to refer to
the Credit Agreement as amended by this Amendment unless otherwise provided
herein or the context otherwise requires. Nothing herein shall affect the
obligations of the Borrower under the Credit Agreement with respect to any
period prior to the effective date hereof.
(b) This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of the day and
year first above written.
HAMILTON BEACH/PROCTOR-SILEX, INC.
By James H. Taylor
Name: James H. Taylor
Title: Vice President, Treasurer
PROCTOR-SILEX CANADA INC.
By James H. Taylor
Name: James H. Taylor
Title: Treasurer
PROCTOR-SILEX S. A. DE C. V.
By James H. Taylor
Name: James H. Taylor
Title: Sole Administrator
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as U. S. Agent
and a Bank
By Carol A. Ulmer
Name: Carol A. Ulmer
Title: Vice President
THE CHASE MANHATTAN BANK OF CANADA, as
Canadian Agent and a Bank
By Carol A.Ulmer
Name: Carol A. Ulmer
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By Marguerite Canestraro
Name: Marguerite Canestraro
Title: Vice President
THE BANK OF NOVA SCOTIA
By F.C.H. Ashby
Name: F.C.H. Ashby
Title:
BANK OF AMERICA ILLINOIS
By Lynn W. Stetson
Name Lynn W. Stetson
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: Karen Coons
Name: Karen Coons
Title:
CRESTAR BANK
By: Christopher B. Werner
Name: Christopher B. Werner
Title: Vice President
SOCIETY NATIONAL BANK
By: Marianne T. Meil
Name: Marianne T. Meil
Title: Assistant Vice President