AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of October 4, 1996 to the SECOND AMENDED AND
RESTATED CREDIT AGREEMENT dated as of October 11, 1990, amended and restated as
of April 18, 1995, among XXXXXXXX BEACH/XXXXXXX-SILEX, INC. (the "Company"),
XXXXXXX-SILEX CANADA INC. ("PSC"), XXXXXXX-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
(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 increase in
the Revolving Credit Commitments (as defined in the Credit Agreement) and
modifications to certain covenants.
WHEREAS, the Company, PSC and PSM have informed the Agents that the Company
has formed a new subsidiary, Xxxxxxxx Beach/Xxxxxxx-Silex de Mexico S.A. de
C.V., a Mexican corporation ("HBPS Mexico"), to build and operate a
manufacturing facility in Mexico. By definition, HBPS Mexico will be a Material
Subsidiary for purposes of the Credit Agreement. Pursuant to Section 9.27(a) of
the Agreement, the Company must pledge to the U.S. Agent, for the benefit of the
Banks, 66% of its interest in HBPS Mexico, and pursuant to Section 9.27(b) of
the Credit Agreement, HBPS Mexico must grant to the U.S. Agent, a Lien upon all
of its assets.
WHEREAS, the Company, PSC and PSM have requested that the Agents and the
Banks waive the requirements of Section 9.27(b) solely with respect to the grant
by HBPS Mexico to the U.S. Agent of a Lien upon its assets.
WHEREAS, the Banks and the Agents are agreeable to such amendments and such
waiver 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. Waiver.
The Agents and the Banks hereby waive the requirements of Section 9.27(b)
solely with respect to the grant by HBPS Mexico to the U.S. Agent of a Lien upon
its assets.
3. Amendments to the Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended (i) by deleting
the definition of the terms "Clean-Down Limit," "Clean-Down Parent Advances,"
"Clean-Down Period" and "Initial Clean-Down Period" and (ii) by adding the
following definitions (to the extent not already included in said Section 1.01)
and inserting the same in the appropriate alphabetical location and by amending
the following definitions (to the extent already included in said Section 1.01),
as follows:
"'Holdings Dividend' shall mean the greater of (i) $15,000,000 and (ii) the
purchase price of the shares of Holdings owned by Xxxx Dimplex and its
affiliates not to exceed $38,000,000."
"'Xxxx Dimplex Transaction' shall mean any one of the following: (i) a loan
of money by the Company to Holdings to lend or to dividend to Housewares to
finance the purchase by Housewares of all the shares of Holdings owned by Xxxx
Dimplex and its affiliates, (ii) a cash dividend by the Company to Holdings to
lend or to dividend to Housewares to finance the purchase by Housewares of all
the shares of Holdings owned by Xxxx Dimplex and its affiliates, or (iii) the
purchase by the Company of all the shares of Holdings owned by Xxxx Dimplex and
its affiliates."
(b) Section 1.01 of the Credit Agreement is hereby amended by replacing the
amount "U.S. $135,000,000" in the definition of "Revolving Credit Commitment"
with the amount "U.S. $160,000,000."
(c) Clause (C) of the first sentence of Section 2.01(I)(b)(i) of the Credit
Agreement is hereby deleted.
(d) Clause (D) of the first sentence of Section 2.01(I)(b)(ii) of the
Credit Agreement is hereby deleted.
(e) The first sentence of the second paragraph of Section 2.01(I)(b)(ii) of
the Credit Agreement is amended by deleting the following:
"(but, in the case of borrowings or reborrowings, provided that the
aggregate amount of all Revolving Credit Loans of all the Banks shall not exceed
the Clean-Down Limit during a Clean-Down Period after giving effect to such
borrowing or reborrowing)"
(f) Section 3.03(c)(vi) of the Credit Agreement is hereby deleted.
(g) The first sentence of Section 8.06 of the Credit Agreement is amended
by adding the following at the end thereof:
"and to effect a Xxxx Dimplex Transaction"
(h) The clause (1)(A)(ii) of the last sentence of Section 9.01 of the
Credit Agreement is amended by deleting the following:
"and, in the case of the certificate accompanying financial statements
delivered pursuant to paragraph (b) above, setting forth in reasonable
detail the computations necessary to determine the Clean-Down Limit for
the related fiscal year of the Company"
(i) Clause (2) of the last sentence of Section 9.01 of the Credit Agreement
is hereby deleted.
(j) Section 9.08 of the Credit Agreement shall be amended to read in its
entirety as follows:
"9.08 Leverage Ratio. The Company shall not, at any time
during any period set forth below, permit the Leverage Ratio to exceed
the ratio set forth opposite such period:
Period Leverage Ratio
During the third and fourth .59 to 1
fiscal quarter of each of
fiscal years 1996 and 1997
During the first and second .56 to 1
fiscal quarter of each of
fiscal years 1997 and 1998
During the third and fourth .56 to 1
fiscal quarter of each
fiscal year after 1997
During the first and second .53 to 1"
fiscal quarter of each
fiscal year after 1998
(k) Section 9.09 of the Credit Agreement shall be amended to read in its
entirety as follows:
"9.09 Net Worth. The Company shall not, at any time during any
period set forth below, permit its Net Worth to be less than the amount
set forth opposite such period less the amount of the Holdings
Dividend:
Period Amount
From September 1, 1996 though $130,000,000
April 30, 1998
From May 1, 1998 and at all $137,500,000"
times thereafter
(l) Section 9.12 is amended by adding the following at the end thereof:
"Notwithstanding the foregoing, the Company may effect a Xxxx Dimplex
Transaction."
(m) Section 9.15 of the Credit Agreement is amended by adding the following
at the end thereof:
"and (ix) the Company may effect a Xxxx Dimplex Transaction"
(n) The last sentence of Section 9.16 of the Credit Agreement is hereby
deleted.
(o) Section 9.17(l) of the Credit Agreement is amended to read in its
entirety as follows:
"(l) a Xxxx Dimplex Transaction."
(p) Section 9.18(k) of the Credit Agreement is amended to read in its
entirety as follows:
"(k) lines of credit (inclusive of Bank Line Loans)
and letters of credit (inclusive of Bank Letters of Credit) an
aggregate principal (or face) amount not to exceed U.S.
$30,000,000;"
(q) Section 9.18(o)(ii) of the Credit Agreement is hereby deleted.
(r) Schedule I to the Credit Agreement is amended to read in its entirety
as Schedule I hereto.
(s) Exhibit A-2 to the Credit Agreement is amended to read in its entirety
as Exhibit A hereto.
(t) Exhibit M to the Credit Agreement is hereby deleted.
4. 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. 2, 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. 2 and the Credit Agreement as amended hereby,
constitutes the legal, valid and binding obligation of the Obligors,
and the Notes constitute the legal, valid and binding obligation of the
Company, in each case enforceable against the Obligor, a party thereto,
in accordance with their respective terms;
(b) on and as of the date hereof (after giving effect to the
amendments set forth in Section 3 hereof and the exchange of Series A
R/C Notes contemplated by Section 5(b) 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 3 hereof and the exchange of Series A
R/C Notes contemplated by Section 5(b) 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 except that the amounts secured by such Mortgages or such
Canadian Security Documents may be limited to $135,000,000; and
(d) on and as of the date hereof (after giving effect to the
amendments set forth in Section 3 hereof and the exchange of Series A
R/C Notes contemplated by Section 5(b) hereof), neither (i) any of
Housewares Holding Company, Precis [521] Ltd., HB-PS Holding Company,
Inc., NACCO Industries, Inc., Xxxx Dimplex or Xxxx 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 Xxxx 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. 2, or in any certificate or other writing
furnished to any Bank or the Agent pursuant to this Amendment No. 2, shall prove
to have been false or misleading as of the time made or furnished in any
material respect.
5. Conditions Precedent. This Amendment No. 2 shall become effective on the
date (the "Effective Date") on which all of the following conditions shall have
been satisfied:
(a) Amendment No. 2. The Agent shall have received this
Amendment No. 2, duly executed and delivered by each of the parties hereto.
(b) Notes. The Agent shall have received a Series A R/C Note
substantially in the form of Exhibit A hereto for each U.S. Dollar Bank duly
executed by the Company payable to the order of such U.S. Dollar Bank in a
principal amount equal to such U.S. Dollar Bank's Revolving Credit Commitment as
in effect on the Effective Date and otherwise duly completed in exchange for the
Series A R/C Note held by such U.S. Dollar Bank.
(c) Authorization. The Agent shall have received certified
copies of the charter and by-laws (or equivalent documents) of each of the
Obligors and of all corporate authority for each of the Obligors (including
without limitation, board of director resolutions and evidence of the incumbency
of officers for the Company) with respect to the authorization, execution,
delivery and performance of this Amendment No. 2 and the Credit Agreement as
amended hereby, the Notes and each other document to be delivered by the Company
from time to time in connection with the Credit Agreement as amended hereby (and
the Agent and each Bank may conclusively rely on such certificate until it
receives notice in writing from the Company to the contrary).
(d) Opinions. (i) Opinion of counsel to the Company dated the
Effective Date substantially in the form of Exhibit B hereto, (ii) an opinion of
Milbank, Tweed, Xxxxxx and XxXxxx, counsel to Chase, dated the Effective Date
substantially in the form of Exhibit C hereof.
(e) Other Documents. The Agent shall have received such other
documents as the Agent or any Bank may reasonably request.
6. 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.
7. Counterparts. This Amendment No. 2 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. 2 by signing any such counterpart.
8. Binding Effect. This Amendment No. 2 shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
9. Governing Law. This Amendment No. 2 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. 2 to be duly executed and delivered as of the day and year first
above written.
OBLIGORS
XXXXXXXX BEACH/XXXXXXX-SILEX, INC.
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President-Treasurer
XXXXXXX-SILEX CANADA INC.
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President-Treasurer
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Treasurer
XXXXXXX-SILEX S.A. de C.V.
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Sole Administrator
BANKS
THE CHASE MANHATTAN BANK
By /s/ Xxxxxxxx Xxxxxxx, Xx.
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
Attorney-in-fact
THE CHASE MANHATTAN BANK OF CANADA
By /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: As Authorized Agent
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. Xxxxx
Name: F.C.H. Xxxxx
Title: Manager Loan Operations
BANK OF AMERICA ILLINOIS
By /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
CRESTAR BANK
By /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
KEY BANK
By /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President
AGENTS
THE CHASE MANHATTAN BANK
as U.S. Agent
By /s/ Xxxxxxxx Xxxxxxx, Xx.
Name: X. Xxxxxxx
Title: Vice President
Attorney-in-fact
THE CHASE MANHATTAN BANK
OF CANADA, as Canadian Agent
By /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Vice President