Exhibit 10 (lxxvii)
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT dated as of March 26, 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"), the CO-ARRANGERS and CO-AGENTS listed therein
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower desires to (i) amend the Credit Agreement to permit
the Borrower and its Subsidiaries to sell accounts and/or notes receivable in
securitization transactions and (ii) at the same time send an Extension Request
to each Bank (which requires a waiver because such Extension Request will be
sent more than 60 days before the next Extension Date); and
WHEREAS, the undersigned Banks are willing to agree to such amendment and
waiver;
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 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. Amendments to Definitions. Section 1.1 of the Credit Agreement
is amended as follows:
(a) The following new definition is added in the appropriate alphabetical
order:
"Permitted Asset Securitization" means a sale or other
disposition (whether in one or a series of transactions) by the
Borrower and/or its Subsidiaries of accounts and/or notes receivable.
(b) The definition of "Debt" is amended by replacing the proviso at the end
of such definition with the following new proviso:
provided that the term "Debt" shall not include
(x)obligations under the Tax Sharing Agreement or (y) obligations
incurred inconnection with Permitted Asset Securitizations.
(c) The definition of "Investment" is amended by inserting the
following immediately before clause (x) thereof:
(w) any acquisition by the Borrower or any Subsidiary of any
obligation of another Person in connection with a Permitted Asset
Securitization,
SECTION 3. Negative Pledge. Section 5.9 of the Credit Agreement is
amended by moving the word "and" at the end of clause (g) to the end of clause
(h) and adding the following new clause (i) immediately after clause (h):
(i) any Lien on accounts and/or notes receivable, cash or cash
equivalents created pursuant to a Permitted Asset Securitization.
SECTION 4. Outstanding Obligations. The following new Section 5.20 is
added immediately after Section 5.19:
SECTION 5.20. Outstanding Obligations. The Borrower will not permit the
aggregate outstanding principal amount of (i) all notes, trust certificates and
similar securities issued pursuant to Permitted Asset Securitizations by the
Borrower and/or its Subsidiaries in the United States and held by parties other
than the Borrower and its Subsidiaries and (ii) all Loans under this Agreement
to exceed $350,000,000 at any time.
SECTION 5. Waiver. The undersigned parties waive the requirements of
Section 2.2 of the Credit Agreement to the extent (and only to the extent)
required to permit the Borrower to send an Extension Request to each Bank more
than 60 days before June 30, 1997, requesting that such Bank's Termination Date
be extended from June 4, 2001 to June 4, 2002.
SECTION 6. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of the Credit Agreement will be true on and as of the Amendment
Effective Date (as defined in Section 9 below) and (ii) no Default will have
occurred and be continuing on such Amendment 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 the
date (the "Amendment Effective Date") when the Agent shall have received from
each of the Borrower and the Required 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.
IN WITNESS WHEREOF, the undersigned parties hereto have caused this
Amendment to be duly executed as of the date first above written.
NACCO MATERIALS HANDLING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: VP
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: S.V.P. & Joint Gen. Mgr.
ROYAL BANK OF CANADA
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx XxXxxxx
Name: Xxxxx XxXxxxx
Title: Vice Prsident
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
Name: Xxxxx Xxxx Tat
Title: Vice President
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank)
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: SVP/Branch Manager
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: AVP
THE SUMITOMO BANK, LTD.
By: /s/ X. Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.P.A.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxx Xxxxxxx Xxxxxxx X.XxXxxxxx
Title:Deputy General FVP
Manager
