Exhibit 10 (cxviii)
AMENDMENT NO. 3
AMENDMENT NO. 3 dated as of April 14, 1997 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. (the "Company"),
PROCTOR-SILEX CANADA INC. ("PSC"), PROCTOR-SILEX S.A. de C.V. ("PSM", and
together with the Company and PSC, the "Obligors"), the BANKS signatory thereto
and THE CHASE MANHATTAN BANK (successor by merger to The Chase Manhattan Bank
(National Association)), as U.S. Agent (the "U.S. Agent"), and THE CHASE
MANHATTAN BANK OF CANADA, as Canadian Agent (the "Canadian Agent") and together
with the U.S. Agent, the "Agents").
W I T N E S S E T H:
WHEREAS, the Obligors, the Banks and the Agents are parties to the Second
Amended and Restated Credit Agreement referred to above as amended by Amendment
No. 1 dated as of March 29, 1996 among the Obligors, the Banks and the Agents
and as further amended by Amendment No. 2 dated as of October 4, 1996 among the
Obligors, the Banks and the Agents (as further modified, supplemented and
amended, the "Credit Agreement") pursuant to which the Banks have agreed to
extend credit to the Borrowers (as defined in the Credit Agreement) as provided
therein.
WHEREAS, the Company has requested that the Banks and the Agents agree to
amend the Credit Agreement to provide, among other things, for an extension of
the Revolving Credit Commitment Termination Date and modifications to certain
covenants.
WHEREAS, the Banks and the Agents are agreeable to such amendments on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein its 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.
2. Amendments to the Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by amending the
following definitions as follows:
"Majority Interest Party Loans" shall mean loans by the Company to any
Majority Interest Party.
"Net Worth" shall mean, on any date of determination, the sum
of the following for any Person and its Subsidiaries (if any)
determined on a consolidated basis in accordance with GAAP at the
last day of the fiscal quarter ending on, or nearest to, such date of
determination: (i) the amount of share capital (less cost of treasury
shares) plus (ii) the amount of surplus and retained earnings (or, in
the case of a surplus or retained earnings deficit minus the amount
of such deficit) minus (iii) any increase (without giving effect to
any amortization) from and after the Amendment Effective Date in the
sum of the following (without duplication of deductions in respect of
items already deducted in arriving at surplus and retained earnings):
the book value of all assets which would be treated as intangibles
under GAAP, including, without limitation, good-will, trademarks,
trade-names, copyrights, patents and unamortized debt discount and
expense; minority interests in Subsidiaries; share capital discount
and expense; any excess of cost over market value of investments; and
any write-up in book value of assets resulting from a revaluation
thereof subsequent to the Amendment Effective Date minus (iv) the
aggregate unpaid principal amount of Majority Interest Party Loans.
"Restricted Payments" shall mean (a) dividends of the Company
(in cash, property or obligations) on, or other payments or
distributions on account of (whether made by the Company or any of
the Subsidiaries), or the setting apart of money for a sinking or
other analogous fund (whether made by the Company or any of the
Subsidiaries) for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock of the Company or
any Subordinated Indebtedness of the Company, (b) payment of
Subordinated Indebtedness or Management Fees by the Company and (c)
the making by the Company of any Majority Interest Party Loan.
"Revolving Credit Termination Date" shall mean May 8, 2002.
(b) Section 2.09 of the Credit Agreement is hereby deleted.
(c) Section 9.12 of the Credit Agreement is amended by adding
the following at the end thereof:
"For purposes of clause (b) above the "aggregate amount" of
Restricted Payments consisting of Majority Interest Party Loans made
in any fiscal year of the Company shall equal the aggregate unpaid
principal amount of such Majority Interest Party Loans made in such
fiscal year and outstanding on the date of such Restricted Payment
and after giving effect to such Restricted Payment."
(d) Section 9.15(viii) of the Credit Agreement is amended to
read in its entirety as follows:
"(viii) in addition to the transactions permitted in clauses
(i) through (vii) above (inclusive), subject to any other restriction
or limitation set forth in, or the terms of, this Agreement or any
Supplemental Agreement, the Company may enter into other transactions
with Affiliates in any fiscal year of the Company so long as the
aggregate amount of cash or other property received by Affiliates
from the Company (excluding Majority Interest Party Loans) in such
fiscal year does not exceed U.S.$500,000;"
(e) Section 9.15 of the Credit Agreement is amended by adding
the following at the end thereof:
"and (x) the Company may make Majority Interest Party Loans
permitted under Section 9.12 hereof."
(f) Section 9.17(f) of the Credit Agreement is amended to
read in its entirety as follows:
"(f) Investments consisting Majority Interest Party Loans
permitted under Section 9.12 hereof;"
3. Representations and Warranties. The Company represents and warrants to the
Banks and the Agent that:
(a) the execution and delivery by the Obligors of this
Amendment No. 3, and the performance by the Obligors of their
obligations under the Credit Agreement as amended hereby, (i) have
been duly authorized by all necessary corporate action of the
Obligors, will not violate any provision of law, or any Obligor'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 Company or any of its Subsidiaries is a
party or by which any Obligor or any of its Property may be bound or
affected, and (ii) each of this Amendment No. 3 and the Credit
Agreement as amended hereby, constitutes the legal, valid and binding
obligation of the Obligors, in each case enforceable against the
Obligors in accordance with their respective terms;
(b) on and as of the date hereof (after giving effect to the
amendments set forth in Section 2 hereof, (i) no Default has occurred
and is continuing and (ii) the representations and warranties made by
each Obligor in Section 8 of Credit Agreement are true and correct on
and as of the date hereof with the same force and effect as if made
on and as of such date (or if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date);
(c) on and as of the date hereof (after giving effect to the
amendments set forth in Section 2 hereof, neither (i) any of the
Property encumbered by any of the Mortgages or any of the Canadian
Security Documents will be released from any provision of such
Mortgage or such Canadian Security Document nor (ii) will any of such
Mortgages or such Canadian Security Documents be invalidated or
otherwise impaired; and
(d) on and as of the date hereof (after giving effect to the
amendments set forth in Section 2 hereof, neither (i) any of
Housewares Holding Company, Precis [521] Ltd., HB-PS Holding Company,
Inc., NACCO Industries, Inc., Glen Dimplex or Glen Electric, Ltd.
will be released from their obligations under their respective
Supplemental Agreement or Supplemental Security Agreement nor (ii)
will any Supplemental Agreement or Supplemental Security Agreement be
invalidated or otherwise impaired, except as expressly contemplated
by the Override Agreement with respect to Glen Dimplex.
It shall be an Event of Default for all purposes of the Credit Agreement,
as amended hereby, if any representation, warranty or certification made by the
Company in this Amendment No. 3, or in any other writing furnished to any Bank
or the Agent pursuant to this Amendment No. 3, shall prove to have been false or
misleading as of the time made or furnished in any material respect.
4. Conditions Precedent. This Amendment No. 3 shall become effective on the date
(the "Effective Date") on which the Agent shall have received this Amendment No.
3, duly executed and delivered by each of the parties hereto.
5. Basic Documents Otherwise Unchanged. Except as herein provided, the Documents
shall remain unchanged and in full force and effect, and each reference to the
Credit Agreement in the Credit Agreement and the Notes shall be a reference to
the Credit Agreement as amended hereby and as the same may be further amended,
supplemented and otherwise modified from time to time.
6. Counterparts. This Amendment No. 3 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument, and any of the parties hereto may execute this Amendment
No. 3 by signing any such counterpart.
7. Binding Effect. This Amendment No. 3 shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
8. Governing Law. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
3 to be duly executed and delivered as of the day and year first above written.
OBLIGORS
HAMILTON BEACH/PROCTOR-SILEX, INC.
By /s/ James H. Taylor
Name: James H. Taylor
Title: VP-Treasurer
PROCTOR-SILEX CANADA INC.
By /s/ James H. Taylor
Name: James H. Taylor
Title: Treasurer
By /s/ Melissa G. Hartness
Name: Melissa G. Hartness
Title: Assistant Treasurer
PROCTOR-SILEX S.A. de C.V.
By /s/ James H. Taylor
Name: James H. Taylor
Title: Sole Administrator
BANKS
THE CHASE MANHATTAN BANK
By /s/ Timothy J. Storms
Name: Timothy J. Storms
Title: Managing Director
THE CHASE MANHATTAN BANK OF CANADA
By /s/ Christine Chan Arun K. Bery
Name: Christine Chan Arun K. Bery
Title: Vice President Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Gary C. Wilson
Name: Gary C. Wilson
Title: First Vice President
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. Ashby
Name: F. C. H. Ashby
Title: Senior Manager Loan Operation
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By /s/ Robert Wurster Carlo Persico
Name: Robert Wurster Carlo Persico
Title: FVP Deputy General Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ David Bouhl
Name: David Bouhl
Title: F.V.P., Head of Corporate Banking, Chicago
CRESTAR BANK
By /s/ Christopher B. Werner
Name: Christopher B. Werner
Title: Vice President
KEY BANK
By /s/ Marianne T. Meil
Name: Marianne T. Meil
Title: Vice President
AGENTS
THE CHASE MANHATTAN BANK
as U.S. Agent
By /s/ Timothy J. Storms
Name: Timothy J. Storms
Title: Managing Director
THE CHASE MANHATTAN BANK
OF CANADA, as Canadian Agent
By /s/ Christine Chan Arun K. Bery
Name: Christine Chan Arun K. Bery
Title: Vice President Vice President