Exhibit 10 (lxxviii)
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT dated as of May 19, 1997 to the Amended and Restated Credit
Agreement dated as of June 4, 1996 (as heretofore amended, the "Credit
Agreement") among NACCO MATERIALS HANDLING GROUP, INC. (the "Borrower"), the
BANKS party thereto (the "Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to (i)
terminate the Commitments of The Bank of Nova Scotia, The First National Bank of
Chicago and Royal Bank of Canada and (ii) increase the Commitments of certain
other Banks by an aggregate amount equal to the aggregate amount of the
Commitments being terminated;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement has the
meaning assigned to such term in the Credit 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 Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. Commitment Schedule. The Commitment Schedule attached hereto is
added to the Credit Agreement immediately after the signature pages thereof.
SECTION 3. Definitions. (a) The following new definition is added to
Section 1.1 of the Credit Agreement immediately after the definition of
"Commitment":
"Commitment Schedule" means the Commitment Schedule
attached hereto.
(b) The definition of "Bank" in Section 1.1 of the Credit Agreement is
amended to read as follows:
"Bank" means each bank listed on the Commitment Schedule, each
Assignee which becomes a Bank pursuant to Section 9.6(c), and their
respective successors.
(c) Clause (i) of the definition of "Commitment" in Section 1.1 of the
Credit Agreement is amended to read as follows:
(i) with respect to each Bank listed on the Commitment Schedule, the
amount set forth opposite its name on the Commitment Schedule or
SECTION 4. Repayment of Outstanding Loans. On the Amendment No. 3 Effective
Date (as defined in Section 9 below) the Borrower shall (i) prepay all Committed
Loans outstanding under the Credit Agreement immediately prior thereto and (ii)
pay all interest on such Committed Loans and all facility fees accrued under the
Credit Agreement to but excluding the Amendment No. 3 Effective Date. The
parties hereto waive any requirement in Section 2.14 of the Credit Agreement
that the Borrower give prior notice of such prepayments. The Borrower shall
compensate the Banks for any funding losses resulting from such prepayments as
and when provided in Section 2.16 of the Credit Agreement.
SECTION 5. Updated Representations as to Financial Information.
Section 4.4 of the Credit 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, 1996 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, 1997 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, 1997 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 6. Additional Representations and Warranties. The Borrower
represents and warrants that as of the Amendment No. 3 Effective Date,
immediately after this Amendment becomes effective:
(a) no Default will have occurred and be continuing; and
(b) each representation and warranty of the Borrower set forth
in the Credit Agreement will be true as though made on and as of the
Amendment No. 3 Effective Date.
SECTION 7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Counterparts. This Amendment 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 9. Effectiveness. This Amendment shall become effective on
June 10, 1997 provided that the following conditions are met (the "Amendment
No. 3 Effective Date"):
(a) the Agent shall have received from each of the Borrower and
the Banks a counterpart hereof signed by such party or facsimile or
other written confirmation (in form satisfactory to the Agent) that
such party has signed a counterpart hereof; and
(b) the Agent shall have received evidence satisfactory to it
that the Borrower will make the payments required by Section 5 of
this Amendment on the Amendment No. 3 Effective Date with the
proceeds of Loans to be borrowed under the Credit Agreement
immediately after this Amendment becomes effective and/or other funds
available for such purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
NACCO MATERIALS HANDLING
GROUP, INC.
By: /s/ Jeffrey C. Mattern
Name: Jeffrey C. Mattern
Title: Treasurer
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Patricia P. Lunka
Name: Patricia P. Lunka
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Maria Vickroy-Peralta
Name: Maria Vickroy-Peralta
Title: Vice President
CITIBANK, N.A.
By: /s/ Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By: /s/ Brady S. Sadek
Name: Brady S. Sadek
Title: Vice President & Deputy
General Manager
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Alison Amonette
Name: Alison Amonette
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Kevin McBride
Name: Kevin McBride
Title: Vice Prsident
UNITED STATES NATIONAL
BANK OF OREGON
By: /s/ Chris J. Karlin
Name: Chris J. Karlin
Title: Vice President
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank)
By: /s/ Timothy J. Storms
Name: Timothy J. Storms
Title: Managing Director
WELLS FARGO BANK, N.A.
By: /s/ John R. Bean
Name: John R. Bean
Title: Asst. Vice President
BANK OF SCOTLAND
By: /s/ Annie Chin Tat
Name: Annie Chin Tat
Title: Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
By: /s/ William Jeffers
Name: William Jeffers
Title: Vice President
MELLON BANK, N.A.
By: /s/ Mark F. Johnston
Name: Mark F. Johnston
Title: AVP
THE SUMITOMO BANK, LTD.
By: /s/ H. Iwami
Name: Hiroyuki Iwami
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.P.A.
By: /s/ Carlo Persico /s/ William J. DeAngelo
Name: Carlo Persico William J.DeAngelo
Title: Deputy General FVP
Manager
The undersigned Banks consent to the termination of their respective
Commitments pursuant to this Amendment and sign this Amendment for the purpose
of satisfying the provisions of Section 9.5 of the Credit Agreement requiring an
amendment of this type to be signed by all the Banks.
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Mark A. Isley
Name: Mark A. Isley
Title: FVP
ROYAL BANK OF CANADA
By: /s/ Preston D. Jones
Name: Preston D. Jones
Title: Senior Manager
Corporate Banking
COMMITMENT SCHEDULE
Banks Commitments
Morgan Guaranty Trust Company of New York $45,000,000
Bank of America National Trust and Savings Association $34,000,000
Citibank, N.A. $34,000,000
The Long-term Credit Bank of Japan, LTD. $34,000,000
Union Bank of California, N.A. $34,000,000
Keybank National Association $28,000,000
United States National Bank of Oregon $28,000,000
The Chase Manhattan Bank $25,000,000
Wells Fargo Bank, N.A. $18,000,000
Bank of Scotland $15,000,000
Caisse Nationale De Credit Agricole $15,000,000
Mellon Bank, N.A. $15,000,000
The Sumitomo Bank, LTD. $15,000,000
Istituto Bancario San Paolo Di Torino S.P.A. $10,000,000
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Total $350,000,000