Exhibit 10 (cxxii)
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5 dated as of June 10, 1998 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 The Chase Manhattan Bank (successor by merger of The Chase
Manhattan Bank (National Association)), as U.S. Agent (in such capacity, the
"U.S. Agent") and The Chase Manhattan Bank of Canada, 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 and (iv)
Amendment No. 4 dated as of April 22, 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.
5, 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:
"Kitchen Advances" shall mean advances made to Kitchen Collection, Inc. by
the Company.
"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 Expense" 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, and (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.
"Total Debt" shall mean, as to any Person, Indebtedness that, in accordance
with GAAP, is required to be reflected as a liability on the balance sheet of
such Person; provided that, for the purposes of calculating the Leverage Ratio,
Indebtedness of the Company incurred pursuant to Loans made hereunder shall not
be included in "Total Debt" to the extent the proceeds of such Loans are used to
fund Kitchen Advances permitted under Section 9.17(h) hereof.
2.02 Reconciliation Statement.
(a) Section 1.02(a) of the Credit Agreement shall be amended by deleting in
its entirety the proviso contained in the second sentence thereof.
(b) Section 9.01 of the Credit Agreement shall be amended by (i) deleting
the parenthetical contained in clause (1)(ii) of the paragraph immediately
following clause (l) thereof, and (ii) amending Clause (1)(B) of such paragraph
to read in its entirety as follows:
"[Intentionally Omitted]".
2.03 Kitchen Advances. Section 9.17 of the Credit Agreement shall be
amended by amending clause (h) thereof to read in its entirety as follows:
"(h) so long as Kitchen Collection, Inc. is an Affiliate of the Company,
the Company may make Kitchen Advances in an aggregate amount of up to but not
exceeding $10,000,000 at any one time outstanding;"
2.04 Schedules and Exhibits. Schedule L of the Credit Agreement
shall be deleted in its entirety and the reference to Schedule L in
the Schedules and Exhibits shall be amended to read in its entirety as follows:
"Schedule L - [Intentionally Omitted]".
Section 3. Representations and Warranties. The Company represents and
warrants to the Banks that on and as of the date hereof (and, in the case of
clauses (b), (c) and (d) of this Section 3, upon giving effect to the amendments
set forth in Section 2 hereof):
(a) (i) the execution and delivery by the Obligors of this Amendment No. 5,
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. 5 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 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);
(c) no Property encumbered by any of the Mortgages or any of
the Canadian Security Documents will be released from any provision of such
Mortgage or Canadian Security Document, and no Mortgage or Canadian Security
Document will be invalidated or otherwise impaired; and
(d) none 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, and no Supplemental Agreement or
Supplemental Security Agreement will be invalidated or otherwise impaired.
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. 5 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, upon the
receipt by the Agents of this Amendment No. 5, duly executed and delivered by
the Obligors, the Majority Banks and the Agents.
Section 5. Miscellaneous. Except as amended by this Amendment No. 5, 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. 5 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. 5 by signing any such
counterpart. This Amendment No. 5 shall be governed by, and construed in
accordance with, the law of the State of New York. This Amendment No. 5 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 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 - Treasurer
XXXXXXX-SILEX CANADA INC.
By /s/Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
XXXXXXX-SILEX S.A. de C.V.
By /s/Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
BANKS
THE CHASE MANHATTAN BANK,
individually and as U.S. Agent
By /s/Xxxxxx Xxxxxx
Title: Managing Director
THE CHASE MANHATTAN BANK OF CANADA,
individually and as Canadian Agent
By /s/Xxxxxxxxx Xxxx
Title: Vice President
By /s/Xx Xxxxxx
Title: Vice President - Treasurer
FIRST CHICAGO NBD
By /s/Xxxxxxx X. XxXxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/M.D. Xxxxx
Title: Agent
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By /s/Xxxx Xxxxxx
Title: Vice President
By /s/Xxxxx Xxxxxxx
Title: Vice President - Treasurer
CREDIT AGRICOLE INDOSUEZ
By /s/Xxxxx Xxxxx
Title: First Vice President
By /s/Xxxx Xxxxxx
Title: Senior Vice President
CRESTAR BANK
By /s/Xxxxxxxxxxx Xxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/Xxxxxxxx Xxxx
Title: Vice President
