EXHIBIT 10(cxxvi)
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of December 19, 2001 to the SECOND AMENDED AND
RESTATED CREDIT AGREEMENT dated as of October 11, 1990 and amended and restated
as of April 18, 1995 among Xxxxxxxx Beach/Xxxxxxx-Silex, Inc. (the "Company"),
Xxxxxxx-Silex Canada Inc. ("PSC") and Xxxxxxx-Silex S.A. de C.V. ("PSM", and
together with the Company and PSC, the "Obligors"); each of the Banks signatory
thereto; and KeyBank National Association, as U.S. Agent (in such capacity, the
"U.S. Agent") and The Bank of Nova Scotia, as Canadian Agent (in such capacity,
the "Canadian Agent", and together with the U.S. Agent, the "Agents").
The Obligors, the Banks and the Agents are parties to the Second
Amended and Restated Credit Agreement referred to above, as amended and modified
by (i) Amendment No. 1 dated as of Xxxxx 00, 0000, (xx) Amendment No. 2 dated as
of October 4, 1996, (iii) Amendment No. 3 dated as of April 14, 1997, (iv)
Amendment No. 4 dated as of April 22, 1998, (v) Amendment No. 5 dated as of June
10, 1998, and (vi) Amendment No. 6 dated as of December 8, 1998 (as so amended
and modified and in effect on the date hereof, the "Credit Agreement"). The
Obligors, the Banks and the Agents wish to amend the Credit Agreement in certain
respects and, accordingly, the parties hereto agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment
No. 7, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
2.01 Definitions. Section 1.01 of the Credit Agreement shall be amended
by adding (to the extent not already included in said Section 1.01) or amending
(to the extent already included in said Section 1.01) the following definitions
to read in their entirety as follows:
"Applicable Margin" shall mean, with respect to each type of Loan,
letter of credit fees and facility fees, for the fiscal quarter commencing
immediately following the delivery of a Compliance Certificate pursuant to the
last sentence of Section 9.01 hereof, the percentage per annum set forth in the
schedule immediately below opposite the EBITDA to Interest Expense Ratio as at
the last day of the Computation Period of the Company covered by such Compliance
Certificate.
I. Loans
Applicable Margin
EBITDA to Canadian Canadian
Interest Base Rate Floating Eurodollar Discount
Expense Ratio Loans Rate Loans Loans Rate Loans
------------- --------- ---------- ---------- ----------
Level I Period
Level II Period
Level III Period Intentionally Omitted
Level IV Period
Level V Period
Level VI Period
Level VII Period
II. Fees
Applicable Margin
EBITDA to
Interest Letter of
Expense Ratio Credit Fees Facility Fees
------------- ----------- -------------
Level I Period
Level II Period
Level III Period
Level IV Period Intentionally Omitted
Level V Period
Level VI Period
Level VII Period
provided that, if the Company shall fail to deliver the financial statements and
the accompanying Compliance Certificate within the time periods specified in
Section 9.01 hereof, the Applicable Margin shall be at the numerical Level one
higher than the current Level (or, if the current Level is the Level VII Period,
the Applicable Margin shall remain at the Level VII margin) for the fiscal
quarter commencing immediately following the date by which such Compliance
Certificate should have been so delivered. Notwithstanding anything in the
foregoing to the contrary, for the fiscal quarters of the Company ending on
March 31, 2002 and June 30, 2002, the Level for purposes of determining the
Applicable Margin shall be not less than the Level IV Period.
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"Cash Charges" shall mean, with respect to any period, cash charges for
such period relating to Non-Cash Charges included in the computation of "Cash
Flow" or "EBITDA," as the case may be, for any previous period.
"Cash Flow" shall mean, for any period, the sum of the following for
any Person and its Subsidiaries (if any) determined on a consolidated basis in
accordance with GAAP: (i) income before taxes for such period minus (ii) equity
earnings of unconsolidated Subsidiaries and Affiliates for such period (or plus
equity losses of unconsolidated Subsidiaries and Affiliates for such period, as
the case may be) plus (iii) Net Non-Cash Charges for such period plus (iv)
Interest Expense for such period plus (v) depreciation and amortization for such
period.
"EBITDA" shall mean, for any period, the sum of the following for any
Person and its Subsidiaries (if any) determined on a consolidated basis in
accordance with GAAP: (a) the sum of (i) net income for such period, plus (ii)
the aggregate amounts deducted in determining such net income in respect of (A)
income taxes for such period, (B) Interest Expense for such period, (C)
depreciation and amortization for such period, (D) Special Charges for such
period, (E) Net Non-Cash Charges for such period, plus (iii) any contribution of
capital made in accordance with clause (e) of Section 10 hereof, minus (b) any
cash benefit received by the Company in any quarter of fiscal year 2002 arising
as a result of actions or charges taken by the Company in the fourth quarter of
fiscal year 2001 and included in the computation of Special Charges.
Notwithstanding anything in the foregoing to the contrary, contributions of
capital made in accordance with clause (e) of Section 10 hereof shall be
included in EBITDA only for purposes of determining compliance with Section 9.07
hereof and for no other purpose in this Agreement, including, without
limitation, for purposes of determining the Applicable Margin.
"EBITDA to Interest Expense Ratio " shall mean, at any time, for the
Company and its Subsidiaries, the ratio of (i) EBITDA for the current
Computation Period to (ii) Interest Expense for the current Computation Period.
"Interest Expense" shall mean, for any period, for the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum
of (i) all interest accrued during such period on Indebtedness of the Company
and its Subsidiaries (whether or not paid during such period) plus (ii) the net
amounts payable by the Company and its Subsidiaries (or minus the net amounts
receivable by the Company and its Subsidiaries) under Interest Rate Protection
Agreements (whether or not actually paid or received in such period); provided
that "Interest Expenses" shall exclude to the extent otherwise included (a)
accrued facility fees payable under Section 2.04(a) hereof and accrued letter of
credit fees payable under Section 2.01(II)(a)(4) hereof, in each case for the
period of determination, (b) all interest accrued during such period on Loans
made hereunder to the extent the proceeds of such Loans are used to fund Kitchen
Advances permitted under Section 9.17(h) hereof, and (c) the fees and expenses
of the U.S. Agent and the Company paid during such period in connection with
Amendment No. 7 to the Credit Agreement.
"Level" shall mean any of the Level I Period, Level II Period, Level
III Period, Level IV Period, Level V Period, Level VI Period or Level VII
Period, as the case may be.
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"Level I Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is greater than or equal to 4.0 to 1.
"Level II Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 4.0 to 1 but greater than or equal to 3.5 to
1.
"Level III Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 3.5 to 1 but greater than or equal to 3.25
to 1.
"Level IV Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 3.25 to 1 but greater than or equal to 3.0
to 1.
"Level V Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 3.0 to 1 but greater than or equal to 2.75
to 1.
"Level VI Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 2.75 to 1 but greater than or equal to 2.50
to 1.
"Level VII Period" shall mean any period during which the EBITDA to
Interest Expense Ratio is less than 2.50 to 1.
"Net Non-Cash Charges" shall mean, with respect to any period, the
amount (expressed as either a positive or negative number) obtained by
subtracting Cash Charges for such period from Non-Cash Charges for such period.
"Non-Cash Charges" shall mean, with respect to any period, non-cash
charges in connection with transactions involving charges to income of
$1,000,000 or more in any individual transaction for such period.
"Special Charges" shall mean the nonrecurring charges and losses
identified on Schedule XII hereto to be taken by the Company in accordance with
GAAP in connection with the Company's restructuring and other corporate actions
taken during the fiscal quarters of the Company ending December 31, 2001 and
March 31, 2002, provided, however, that the aggregate amount of all such charges
shall not exceed [ Intentionally Omitted].
2.02 EBITDA to Interest Expense Ratio . Section 9.07 of the Credit
Agreement shall be amended in its entirety as follows:
9.07 EBITDA to Interest Expense Ratio . The Company shall not
permit the EBITDA to Interest Expense Ratio to be less than (a) for the
fiscal quarter of the Company ending December 31, 2001, 2.75 to 1.00,
(b) for the fiscal quarter of the Company ending March 31, 2002, 2.25
to 1.00, (c) for the fiscal quarter of the Company ending June 30,
2002, 2.25 to 1.00, (d) for the fiscal quarter of the Company ending
September 30, 2002, 2.75 to 1.00, (e) for the fiscal quarter of the
Company ending December 31, 2002, 4.00 to 1.00, and (f) for the fiscal
quarter of the Company ending March 31, 2003 and each fiscal quarter of
the Company thereafter, [intentionally omitted].
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2.03 Restricted Payments. The following sentence is hereby added to
clause (b) of Section 9.12 of the Credit Agreement:
"Notwithstanding the foregoing, (1) during the fourth quarter
of the fiscal year of the Company ending December 31, 2002, the Company
may pay Management Fees to NACCO for services actually rendered during
such fiscal year in an aggregate amount not to exceed U.S.$2,400,000
provided that (I) such Management Fees shall not be paid until the
Compliance Certificate for the third quarter of such fiscal year has
been delivered, (II) the EBITDA to Interest Expense Ratio for the third
quarter of such fiscal year is not less than 2.75 to 1.00, and (III)
such Management Fees shall be included in the aggregate amount of all
Restricted Payments that are authorized to be made during such fiscal
year, and (2) the aggregate amount of Restricted Payments of the type
described in clause (a) of the definition of "Restricted Payments" that
may be made in any fiscal year of the Company in accordance with this
clause (b) shall not exceed fifty percent (50%) of the amount that
would otherwise be permitted by this clause (b) but for this sub-clause
(2)."
2.04 Transactions with Affiliates. The following clause (x) is hereby
added to Section 9.15 of the Credit Agreement:
"and (x) the Company may pay Management Fees permitted by the
last sentence of Section 9.12(b) hereof."
2.04 Events of Default. Clause (e) of Section 10 of the Credit
Agreement shall be amended in its entirety as follows:
(e) Any Obligor shall default in the performance of any of
their respective obligations under Sections 9.01(h) or 9.07, 9.08,
9.09, 9.12, 9.13 or 9.14 (other than with respect to non-consensual
Liens of the generic type described in Sections 9.14(b), (c), (d), (e),
(f) and (g) hereof (the "Non-Consensual Liens")), 9.15 through 9.18
(inclusive), 9.21, 9.24 or 9.27 hereof and, with respect only to a
default by the Company of its obligations under Sections 9.07, 9.08 or
9.09, neither NACCO nor any other Majority Interest Party shall have
made a contribution of equity capital to the Company within 30 days
after the Compliance Certificate for the Computation Period of the
Company with respect to which default has occurred should have been
delivered in accordance with Section 9.01 hereof in an amount
sufficient to cure such default (which capital contribution shall not
be returned to NACCO or such Majority Interest Party until the
Revolving Credit Termination Date and shall not be included in the
calculation of any financial covenant for any purpose hereunder other
than for purposes of determining compliance with Sections 9.07, 9.08 or
9.09 and specifically shall be excluded from the determination of the
EBITDA to Interest Expense Ratio for purposes of determining the
Applicable Margin); or any Obligor shall default in the performance of
any of their respective obligations under Section 9.14 (with respect to
Non-Consensual Liens) hereof and such default in performance shall
continue unremedied for a period of 10 days after the occurrence
thereof or any Obligor shall default in the performance of any of its
other covenants or agreements in this Agreement and such default shall
continue unremedied for a period of 30 days after the occurrence
thereof; or
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2.05 Schedule XII. There is hereby added to the Credit Agreement the
schedule identified as Schedule XII "Special Charges" attached to this Amendment
No. 7.
Section 3. Representations and Warranties. The Company represents and
warrants to the Banks that on and as of the date hereof:
(a) (i) the execution and delivery by the Obligors of this Amendment
No. 7, and the performance by the Obligors of their obligations under the Credit
Agreement, as amended hereby, have been duly authorized by all necessary
corporate action of the Obligors, and will not violate any provision of law, or
any Obligor's charter or by-laws, or result in a 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. 7 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 its terms;
(b) no Default or Event of Default has occurred and is continuing, and
the representations and warranties set forth in Section 8 of the Credit
Agreement are true and complete on the date hereof (or if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
It shall be an Event of Default for all purposes under the Credit Agreement, as
amended hereby, if any representation or warranty made by the Company in this
Amendment No. 7 shall prove to have been false or misleading as of the time made
or furnished in any material respect.
Section 4. Conditions Precedent. The amendments to the Credit Agreement
set forth in said Section 2 shall become effective as of the date hereof,
subject to the next succeeding sentence, upon the receipt by the Agents of this
Amendment No. 7, duly executed and delivered by the Obligors, the Majority Banks
and the Agents and payment by the Obligors to each of the Banks signing this
Amendment No. 7 a fee equal to .20% of its Revolving Credit Commitment.
Notwithstanding anything in the foregoing to the contrary, but subject to the
conditions precedent set forth above, the amendment to the defined term
"Applicable Margin" set forth in Section 2.01 hereof shall not be effective
until the close of business on December 31, 2001.
Section 5. Miscellaneous. The Obligors shall pay all of the fees and
expenses of the U.S. Agent, including its reasonable legal fees and expenses, in
connection with this Amendment No. 7. Except as amended by this Amendment No. 7,
the Credit Agreement shall remain unchanged and in full force and effect.
Reference in the Credit Agreement to "this Agreement" or words of similar import
shall be deemed to be references to the Credit Agreement as amended hereby. This
Amendment No. 7 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. 7 by signing any such
counterpart. This Amendment No. 7 shall be governed by, and construed in
accordance with, the law of the State of New York. This Amendment No. 7 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 7 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
---------------------------------
Title: Vice President and
Treasurer
XXXXXXX-SILEX CANADA INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Treasurer
XXXXXXX-SILEX S.A. de C.V.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President and
Treasurer
BANKS
KEYBANK NATIONAL ASSOCIATION,
Individually and as U.S. Agent
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA,
Individually and as Canadian Agent
By: /s/ Xxxxxx Xxxx
--------------------------------
Title: Assistant Agent
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BANK ONE, N.A.
(formerly First Chicago NBD)
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Director
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA - INSTITUTO MOBILARE
ITALIANO SPA
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: General Manager
and /s/ Xxxx Xxxxxx
---------------------------------
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By:
---------------------------------
Title:
and
---------------------------------
Title:
SUNTRUST BANK
(formerly Crestar Bank)
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Title: Director
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X.X. Xxxxxxxx
---------------------------------
Title: Vice President
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