Exhibit 10.37
FOURTH AMENDMENT
TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment")
dated as of June 30, 2004, relates to that certain Credit Agreement dated as of
May 9, 2002 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among NMHG Holding Co., a Delaware corporation ("NMHG
Holding"), NACCO Materials Handling Group, Inc., a Delaware corporation,
individually and as successor by merger to NMHG Distribution Co., a Delaware
corporation ("NMHG"), NACCO Materials Handling Limited (company number
02636775), incorporated under the laws of England and Wales (the "UK Borrower"),
NACCO Materials Handling B.V., a private company with limited liability
incorporated under the laws of the Netherlands having its corporate seat in
Nijmegen (together with NMHG Holding, NMHG and the UK Borrower, the
"Borrowers"), the financial institutions from time to time a party thereto as
Lenders, whether by execution of the Credit Agreement or an Assignment and
Acceptance (as defined therein), the financial institutions from time to time
party thereto as Issuing Bank, whether by execution of the Credit Agreement or
an Assignment and Acceptance or otherwise, Citicorp North America, Inc., a
Delaware corporation, in its capacity as administrative agent for the Lenders
and the Issuing Bank thereunder (with its successors and permitted assigns in
such capacity, the "Administrative Agent"), Citigroup Global Markets Inc. (as
successor in interest to Salomon Smith Barney Inc.) and Credit Suisse First
Boston ("CSFB") as joint arrangers and joint bookrunners, and CSFB as
syndication agent.
1. DEFINITIONS. Capitalized terms defined in the Credit Agreement
and not otherwise defined or redefined herein have the meanings assigned to them
in the Credit Agreement.
2. FOURTH AMENDMENT EFFECTIVE DATE AMENDMENTS TO CREDIT
AGREEMENT. Upon the "Fourth Amendment Effective Date" (as defined in Section 6
below), the Credit Agreement is hereby amended as follows:
2.1 AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit
Agreement is hereby amended as follows:
(a) by amending the definition of "Adjusted EBITDA" to
delete in its entirety the reference therein to "$10,000,000" and to
substitute "$25,000,000" in lieu thereof;
(b) by adding the following definition of "Anti-Money
Laundering Laws" in proper alphabetical order:
"Anti-Money Laundering Laws" means the BSA and all
applicable Requirements of Law and government guidance on BSA
compliance and on the prevention and detection of money
laundering violations under 18
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U.S.C. Sections 1956 and 1957.
(c) by adding the following definition of
"Anti-Terrorism Laws" in proper alphabetical order:
"Anti-Terrorism Laws" means the OFAC Laws and
Regulations, the Executive Orders and the USA Patriot Act.
(d) by amending the definitions of "Applicable Fixed
Rate Margin", "Applicable Floating Rate Margin", "Applicable Letter
of Credit Fee Rate", "Applicable Overdraft Rate Margin", and
"Applicable Unused Commitment Fee Rate" to delete in their entirety
the references therein to "set forth above" and to substitute "set
forth on Exhibit A" in lieu thereof;
(e) by amending the definition of "Availability
Reserves" to delete in its entirety the text of clause (d) thereof
and to substitute "[intentionally omitted]" in lieu thereof;
(f) by adding the following definition of "BSA" in
proper alphabetical order:
"BSA" means the Bank Secrecy Act, 31 U.S.C. Sections
5311 et seq.
(g) by amending and restating the definition of
"Capital Expenditures" in its entirety to read as follows:
"Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether payable in cash or
other Property or accrued as a liability (but without
duplication)) during such period that, in conformity with
GAAP, are required to be classified as capital expenditures
but excluding (a) interest capitalized relating to and during
construction of Property, (b) expenditures made in connection
with the replacement or restoration of Property to the extent
reimbursed or financed from insurance or condemnation proceeds
not constituting net cash proceeds of sale of such Property,
(c) expenditures made with the proceeds from the sales of
similar Property to the extent such sales and reinvestments
are otherwise permitted under this Agreement, and (d)
expenditures in an amount not to exceed $22,000,000 in such
period made in connection with the Global Design and Product
Development Program.
(h) by adding the following definition of "CIP
Regulations" in proper alphabetical order:
"CIP Regulations" is defined in Section 12.10.
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(i) by amending and restating the definition of
"Commitments" in its entirety to read as follows:
"Commitments" means, collectively, the Domestic
Commitments and the Multicurrency Commitments (it being
understood and agreed that the maximum aggregate principal
amount of the Commitments shall not exceed $135,000,000, as
reduced from time to time pursuant to the terms hereof).
(j) by adding the following definition of "Designated
Person" in proper alphabetical order:
"Designated Person" is defined in Section 6.01(ff).
(k) by amending and restating the definition of
"Domestic Borrowers" in its entirety to read as follows:
"Domestic Borrowers" means, collectively, NMHG Holding
and NMHG.
(l) by amending and restating the definition of
"Domestic Commitment" in its entirety to read as follows:
"Domestic Commitment" means the commitment of each
Domestic Lender to make Domestic Loans (including Domestic
Loans required to be made pursuant to Section 2.01(g) and
2.02(e)(ii) to the Domestic Borrowers), to participate in
Letters of Credit Issued for the account of the Domestic
Borrowers, and to participate in Multicurrency Loans and fund
such participations, in each case pursuant to Section 2.03, in
an aggregate principal amount (after giving effect to all
participations purchased by and from such Domestic Lender)
outstanding not to exceed the amount on the Fourth Amendment
Effective Date set forth opposite such Domestic Lender's name
on Schedule 1.01.1 under the caption "Domestic Commitment", as
such amount may be reduced or modified pursuant to this
Agreement; provided, however, at no time shall the aggregate
Domestic Commitments of all Domestic Lenders exceed
$105,000,000 less any permanent reduction made pursuant to
Section 3.01; provided, further, as of the Fourth Amendment
Effective Date the aggregate Domestic Commitments of all
Domestic Lenders shall equal $90,000,000; provided, further,
at no time shall the aggregate Domestic Commitments and the
aggregate Multicurrency Commitments exceed $135,000,000.
(m) by adding the following definition of "Excess
Borrowing Base Capacity" in proper alphabetical order:
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"Excess Borrowing Base Capacity" means, with respect to
the Credit Facilities at any particular time, an amount equal
to (a) the sum of the Domestic Borrowing Base and the
Multicurrency Borrowing Base at such time, minus (b) the
aggregate amount of any Availability Reserves applicable to
the Credit Facilities in effect at such time, minus (c) the
aggregate amount of the Excess Currency Agreement Exposure or,
at any time when an Event of Default has occurred and is
continuing, the Currency Agreement Exposure, in each case, of
all Borrowers at such time, minus (d) the aggregate amount of
the Interest Rate Contract Exposure of all Borrowers at such
time, minus (e) the aggregate Credit Facility Outstandings at
such time.
(n) by adding the following definition of "Excess
Currency Agreement Exposure" in proper alphabetical order:
"Excess Currency Agreement Exposure" means, at any
particular time, an amount equal to the excess, if any, of (a)
the aggregate Currency Agreement Exposure at such time for all
Borrowers, over (b) $5,000,000. Excess Currency Agreement
Exposure shall be allocated to the Domestic Borrowers and the
Multicurrency Borrowers ratably in accordance with their
respective shares of the aggregate Currency Agreement Exposure
at such time.
(o) by adding the following definition of "Executive
Orders" in proper alphabetical order:
"Executive Orders" is defined in Section 6.01(ff).
(p) by amending and restating the definition of
"Financial Institution" in its entirety to read as follows:
"Financial Institution" means (a) any Financing
Affiliate, (b) any financial institution listed on Schedule
1.01.9, (c) solely with respect to Lease Finance Transactions
to which the Australian Subsidiaries are a party, any
financial institution and (d) in all other cases, any
financial institution from time to time approved by the
Administrative Agent.
(q) by amending and restating the definition of
"Financing Agreement" in its entirety to read as follows:
"Financing Agreement" means (a) the International
Operating Agreement, dated April 15, 1998, between NMHG and
General Electric Capital Corporation, (b) the Restated and
Amended Joint Venture and Shareholders Agreement, dated April
15, 1998, between NMHG and General Electric Capital
Corporation and (c) any agreement or program entered into with
a Financial Institution on substantially the same terms as
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the International Operating Agreement referred to in clause
(a) above or otherwise as consented to by the Administrative
Agent, such consent not to be unreasonably withheld, as any of
the same may be (x) renewed, amended or restated from time to
time on substantially the same terms or otherwise as consented
to by the Administrative Agent, such consent not to be
unreasonably withheld or (y) replaced from time to time as
consented to by the Administrative Agent, such consent not to
be unreasonably withheld.
(r) by adding the following definition of "Fourth
Amendment Effective Date" in proper alphabetical order:
"Fourth Amendment Effective Date" is defined in the
Fourth Amendment to Credit Agreement dated as of June 30, 2004
among the Borrowers, the Lenders, the Issuing Bank and the
Administrative Agent.
(s) by adding the following definition of "Original
Fee Letter" in proper alphabetical order:
"Fourth Amendment Fee Letter" means the proposal and fee
letter dated as of June 3, 2004, from CNAI and accepted by the
Borrowers.
(t) by adding the following definition of "Fourth
Amendment Schedule Delivery Date" in proper alphabetical order:
"Fourth Amendment Schedule Delivery Date" is defined in
the Section 8.14.
(u) by adding the following definition of "Global
Design and Product Development Program" in proper alphabetical
order:
"Global Design and Product Development Program" means
the proposed program of the Borrowers and Borrower
Subsidiaries involving the design, development and launch of a
new range of internal combustion powered fork lift trucks and
the restructuring of fabrication, manufacturing and assembly
operations of the Borrowers and Borrower Subsidiaries to
accommodate the production of such new fork lift trucks.
(v) by amending and restating the definition of
"Letter Agreement" in its entirety to read as follows:
"Letter Agreement" means, collectively, the Original Fee
Letter and the Fourth Amendment Fee Letter.
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(w) by amending and restating the definition of
"Leverage Ratio" in its entirety to read as follows:
"Leverage Ratio" means, as of the last day of each
fiscal quarter ending on or after the Fourth Amendment
Effective Date, the ratio of (a) an amount equal to (i)
Financial Covenant Debt at such date, minus (ii) Unrestricted
Cash On Hand at such date to (b) Adjusted EBITDA for the
four-fiscal-quarter period then ending.
(x) by adding the following definition of "Lists" in
proper alphabetical order:
"Lists" is defined in Section 6.01(ff).
(y) by amending the definition of "Maximum Credit
Amount" to delete in their entirety the references to "the Currency
Agreement Exposure" in clauses (i)(C) and (ii)(C) thereof and to
substitute "the Excess Currency Agreement Exposure or, at any time
when an Event of Default has occurred and is continuing, the
Currency Agreement Exposure, in each case" in lieu thereof.
(z) by adding the following definition of "Monthly
Borrowing Base Delivery Date" in proper alphabetical order:
"Monthly Borrowing Base Delivery Date" is defined
in Section 7.05(a).
(aa) by amending and restating the definition of
"Multicurrency Commitment" in its entirety to read as follows:
"Multicurrency Commitment" means, as to each
Multicurrency Lender, the commitment to make Multicurrency
Loans (including Multicurrency Loans required to be made
pursuant to Section 2.01(h) and 2.02(e)(ii) to the
Multicurrency Borrowers), to participate in Letters of Credit
Issued for the account of the Multicurrency Borrowers, and to
participate in Domestic Loans and fund such participations, in
each case pursuant to Section 2.03, in an aggregate principal
amount (after giving effect to all participations purchased by
and from such Multicurrency Lender) outstanding not to exceed
the amount on the Fourth Amendment Effective Date set forth
opposite such Multicurrency Lender's name on Schedule 1.01.1
under the caption "Multicurrency Commitment," as such amount
may be reduced or modified pursuant to this Agreement;
provided, however, at no time shall the aggregate
Multicurrency Commitments of all Multicurrency Lenders exceed
$70,000,000 less any permanent reduction made pursuant to
Section 3.01; provided, further, as of the Fourth Amendment
Effective Date the aggregate
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Multicurrency Commitments shall equal $45,000,000; provided,
further, at no time shall the aggregate Multicurrency
Commitments and the aggregate Domestic Commitments exceed
$135,000,000.
(bb) by amending the definition of "Net Cash Proceeds
of Issuance of Equity Securities or Indebtedness" to add the
following proviso immediately preceding the period (".") at the end
of such definition:
; provided, however, that Net Cash Proceeds of Issuance of
Equity Securities or Indebtedness shall not include net
proceeds of up to $25,000,000 in any four fiscal quarter
period resulting from (x) the issuance by NMHG Holding of
equity Securities to the Parent or (y) capital contributions
made by the Parent (directly or indirectly) to NMHG Holding or
any of the other Borrowers.
(cc) by adding the following definition of "OFAC" in
proper alphabetical order:
"OFAC" is defined in Section 6.01(ff).
(dd) by adding the following definition of "OFAC Laws
and Regulations" in proper alphabetical order:
"OFAC Laws and Regulations" is defined in Section
6.01(ff).
(ee) by adding the following definition of "Original
Fee Letter" in proper alphabetical order:
"Original Fee Letter" means the fee letter dated as of
April 3, 2002, from CNAI, SSB and CSFB and accepted by the
Domestic Borrowers.
(ff) by adding the following definition of "Parent
Subordinated Indebtedness" in proper alphabetical order:
"Parent Subordinated Indebtedness" means unsecured
Indebtedness owing by any Borrower or Borrower Subsidiary to
the Parent and unsecured guaranties thereof by any other
Borrower or Borrower Subsidiary; provided that any such
Indebtedness or guaranty issued by a Credit Party shall be
subordinated in right of payment to the Obligations and
otherwise on terms and conditions satisfactory to the
Administrative Agent; provided, further, that, in the event
that any Borrower Subsidiary which is not a Credit Party
guaranties or becomes jointly and severally liable for any
Parent Subordinated Indebtedness issued by any Credit Party,
such Borrower Subsidiary, as a condition of issuing such
guaranty or becoming jointly and severally liable for such
Indebtedness, shall become a Guarantor with respect to (i) if
such Credit Party is a Domestic
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Credit Party, all Obligations guaranteed by the Domestic
Guarantors, (ii) if such Credit Party is a Multicurrency
Borrower, all Obligations of such Multicurrency Borrower or
(iii) if such Credit Party is a Foreign Guarantor, all
Obligations guaranteed by such Foreign Guarantor.
(gg) by adding the following definition of "Required
Evidence of Insurance" in proper alphabetical order:
"Required Evidence of Insurance" is defined in Section
8.05.
(hh) by amending the definition of "Restricted Payment"
to insert "including, without limitation, Parent Subordinated
Indebtedness," immediately following the reference to "Obligations,"
in clause (d) thereof.
(ii) by amending the definition of "Semi-Monthly
Borrowing Base Delivery Date" to delete in its entirety the
reference therein to "Section 7.05(a)" and to substitute "Section
7.05(b)" in lieu thereof.
(jj) by amending the definition of "Termination Date"
to delete in its entirety the reference therein to "the third
anniversary of the Closing Date" and to substitute "May 9, 2007" in
lieu thereof.
(kk) by adding the following definition of
"Unrestricted Cash On Hand" in proper alphabetical order:
"Unrestricted Cash On Hand" means, as of any date of
determination, an amount equal to (a) the amount of
immediately available cash and Cash Equivalents on deposit in
Bank Accounts reported on the most recently delivered monthly
Financial Statement, minus (b) all such cash and Cash
Equivalents which is the subject of any Lien or right of
setoff, whether directly, as proceeds of other property
subject to a Lien or right of setoff, or otherwise (other than
a Lien in favor of the Administrative Agent or a right of
setoff with respect to Bank Accounts with respect to which the
Administrative Agent has control (as defined in the Uniform
Commercial Code)), minus (c) all such cash or Cash Equivalents
which is held in any deposit or securities account which is
subject to any Lien in favor of any Person other than the
Administrative Agent.
(ll) by adding the following definition of "USA Patriot
Act" in proper alphabetical order:
"USA Patriot Act" means the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 (2001), as amended.
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(mm) by amending the definition of "Weekly Borrowing
Base Delivery Date" to delete in its entirety the reference therein
to "Section 7.05(b)" and to substitute "Section 7.05(c)" in lieu
thereof.
2.2 AMENDMENTS TO ARTICLE VI. Article VI of the Credit
Agreement is hereby amended as follows:
(a) Sections 6.01(f) and 6.01(aa) of the Credit
Agreement are hereby amended to delete in their entirety each
reference therein to "as of the Closing Date" and to substitute "as
of the Fourth Amendment Effective Date" in lieu thereof; and
(b) The following Sections 6.01(ff) and 6.01(gg) are
added at the end thereof:
(ff) Anti-Terrorism Laws and Anti-Money
Laundering Laws. None of the Borrowers and Borrower
Subsidiaries are, and after making due inquiry no Person who
owns a controlling interest in or otherwise controls any
Borrower or Borrower Subsidiary is or shall be, (i) listed on
the Specially Designated Nationals and Blocked Persons List
maintained by the Office of Foreign Assets Control ("OFAC"),
Department of the Treasury, and/or on any other similar list
(collectively, the "Lists") maintained by the OFAC pursuant to
any authorizing statute, Executive Order or regulation
(collectively, "OFAC Laws and Regulations"); or (ii) a Person
(a "Designated Person") either (A) included within the term
"designated national" as defined in the Cuban Assets Control
Regulations, 31 C.F.R. Part 515, or (B) designated under
Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No.
13224, 66 Fed. Reg. 49079 (published September 25, 2001) or
similarly designated under any related enabling legislation or
any other similar Executive Orders (collectively, the
"Executive Orders"). None of the Borrowers and Borrower
Subsidiaries (x) is a Person or entity with which any Lender
is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law or (y) is a Person or
entity that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Orders or (z)
is affiliated or associated with a Person or entity listed in
the preceding clause (x) or clause (y). To the Knowledge of
the Borrowers, no Borrower, Borrower Subsidiary, any of their
Affiliates, nor any brokers or other agents acting in any
capacity in connection with the Loans hereunder (I) deals in,
or otherwise engages in any transaction relating to, any
property or interests in property blocked pursuant to the
Executive Orders or (II) engages in or conspires to engage in
any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
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(gg) No Violation of Anti-Money Laundering Laws.
To each Borrower's Knowledge no Borrower, Borrower Subsidiary
nor any holder of a direct or indirect interest in any
Borrower or Borrower Subsidiary (i) is under investigation by
any governmental authority for, or has been charged with, or
convicted of, money laundering under 18 U.S.C. Sections 1956
and 1957, drug trafficking, terrorist-related activities or
other money laundering predicate crimes, or any violation of
the BSA, (ii) has been assessed civil penalties under any
Anti-Money Laundering Laws, or (iii) has had any of its funds
seized or forfeited in an action under any Anti-Money
Laundering Laws.
2.3 AMENDMENT TO SECTION 7.04. Section 7.04 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
7.04. Insurance. The Borrowers shall deliver to the
Administrative Agent as soon as practicable and in any event (a) no
later than April 1 in each calendar year, a report in the form of
Schedule 6.01-W or otherwise in form and substance reasonably
satisfactory to the Administrative Agent outlining all material
insurance coverage (including any self insurance provided by any
Borrower, Parent or Borrower Subsidiary but excluding health,
medical, dental and life insurance (other than key man life
insurance)) maintained as of the date of such report by any Person
on their behalf or on behalf of any Borrower Subsidiary and the
duration of such coverage, (b) no later than 60 days after the
Fourth Amendment Effective Date with respect to each policy in
effect on the Fourth Amendment Effective Date for which Required
Evidence of Insurance is required under Section 8.05, the Required
Evidence of Insurance, (c) no later than 10 Business Days after the
renewal date of each policy (or the effective date of any policy not
in effect on the Fourth Amendment Effective Date) for which Required
Evidence of Insurance is required under Section 8.05, evidence
satisfactory to the Administrative Agent that such policies are in
effect and showing the insurable interests of the Administrative
Agent required by Section 8.05 and (d) no later than 60 days after
the renewal date of each policy for which Required Evidence of
Insurance is required under Section 8.05, the Required Evidence of
Insurance for such policy. The Borrowers shall notify the
Administrative Agent of, and shall give the Administrative Agent and
its representatives access to copies of, any new, updated, renewed
or otherwise modified material insurance policies (excluding health,
medical, dental and life insurance (other than key man life
insurance)). The Borrowers shall promptly notify the Administrative
Agent of the nonpayment of any premiums of any policy, cancellation
of any policy or alterations of any policy that are adverse to the
interests of the Holders, in each case, with respect to policies of
insurance for which Required Evidence of Insurance is required
hereunder.
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2.4 AMENDMENT TO SECTION 7.05. Section 7.05 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
7.05. Borrowing Base Certificates.
(a) Monthly Delivery. At all times that (x) Excess
Borrowing Base Capacity is greater than an amount equal to forty
percent (40%) of the Commitments then in effect (as determined by
the Administrative Agent based on the then most recent set of
Borrowing Base Certificates delivered by the Borrowers or, during
the period from June 30 to October 31 in any Fiscal Year, based on
the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers) and (y) addenda to
Schedules 7.05-A and 7.05-B for the then current calendar year are
in effect pursuant to this Section 7.05(a), on each Business Day set
forth on Schedule 7.05-A with respect to the Domestic Borrowers and
Schedule 7.05-B with respect to the Multicurrency Borrowers (each, a
"Monthly Borrowing Base Delivery Date"), the Domestic Borrowers and
the Multicurrency Borrowers shall each provide the Administrative
Agent with a Borrowing Base Certificate (which the Administrative
Agent shall promptly deliver to each Domestic Lender and each
Multicurrency Lender, respectively), reporting Eligible Receivables
and Eligible Inventory as of the Business Day set forth on Schedule
7.05-A or Schedule 7.05-B, as applicable, for such Collateral and
corresponding to the applicable Monthly Borrowing Base Delivery
Date, or, in each case, as of any other date requested by the
Administrative Agent in its sole discretion, together with such
supporting documents as the Administrative Agent requests, all with
respect to the Domestic Facility certified as being true, accurate
and complete by a Financial Officer of the Domestic Borrowers, and
all with respect to the Multicurrency Facility certified as being
true, accurate and complete by a Financial Officer of the
Multicurrency Borrowers. Not later than December 10 (or if such day
is not a Business Day, on the next succeeding Business Day) in each
calendar year commencing with 2004, the Borrowers shall deliver to
the Administrative Agent an addendum to each of Schedule 7.05-A and
Schedule 7.05-B showing the Monthly Borrowing Base Delivery Dates
and reporting dates as to Eligible Receivables and Eligible
Inventory for the immediately following calendar year which addenda
shall become effective for such following calendar year upon the
Administrative Agent's approval thereof. Upon approval of any such
addenda the Administrative Agent shall promptly deliver such addenda
to each Lender.
(b) Semi-Monthly Delivery. At all times that (x)
Excess Borrowing Base Capacity is greater than or equal to an amount
equal to twenty percent (20%) of the Commitments then in effect (as
determined by the Administrative Agent based on the then most recent
set of Borrowing Base Certificates delivered by the Borrowers or,
during the period from June 30 to October 31 in any Fiscal Year,
based on the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers), (y) addenda to Schedules
7.05-C and 7.05-D for the then current calendar year are in effect
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pursuant to this Section 7.05(b) and (z) the conditions for monthly
reporting in Section 7.05(a) are not satisfied at such time, on each
Business Day set forth on Schedule 7.05-C with respect to the
Domestic Borrowers and Schedule 7.05-D with respect to the
Multicurrency Borrowers (each, a "Semi-Monthly Borrowing Base
Delivery Date"), the Domestic Borrowers and the Multicurrency
Borrowers shall each provide the Administrative Agent with a
Borrowing Base Certificate (which the Administrative Agent shall
promptly deliver to each Domestic Lender and each Multicurrency
Lender, respectively), reporting Eligible Receivables and Eligible
Inventory as of the Business Day set forth on Schedule 7.05-C or
Schedule 7.05-D, as applicable, for such Collateral and
corresponding to the applicable Semi-Monthly Borrowing Base Delivery
Date, or, in each case, as of any other date requested by the
Administrative Agent in its sole discretion, together with such
supporting documents as the Administrative Agent requests, all with
respect to the Domestic Facility certified as being true, accurate
and complete by a Financial Officer of the Domestic Borrowers, and
all with respect to the Multicurrency Facility certified as being
true, accurate and complete by a Financial Officer of the
Multicurrency Borrowers. Not later than December 10 (or if such day
is not a Business Day, on the next succeeding Business Day) in each
calendar year commencing with 2004, the Borrowers shall deliver to
the Administrative Agent an addendum to each of Schedule 7.05-C and
Schedule 7.05-D showing the Semi-Monthly Borrowing Base Delivery
Dates and reporting dates as to Eligible Receivables and Eligible
Inventory for the immediately following calendar year which addenda
shall become effective for such following calendar year upon the
Administrative Agent's approval thereof. Upon approval of any such
addenda the Administrative Agent shall promptly deliver such addenda
to each Lender.
(c) Weekly Delivery. At all times that (x) Excess
Borrowing Base Capacity is less than an amount equal to twenty
percent (20%) of the Commitments then in effect (as determined by
the Administrative Agent based on the then most recent set of
Borrowing Base Certificates delivered by the Borrowers or, during
the period from June 30 to October 31 in any Fiscal Year, based on
the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers) or (y) the conditions for
monthly and semi-monthly reporting in Sections 7.05(a) and 7.05(b),
respectively, are not satisfied at such time, on each Wednesday (or
if such day is not a Business Day, on the next succeeding Business
Day) or more frequently if requested by the Administrative Agent in
its sole discretion (each, a "Weekly Borrowing Base Delivery Date"),
the Domestic Borrowers and the Multicurrency Borrowers shall each
provide the Administrative Agent with a Borrowing Base Certificate
(which the Administrative Agent shall promptly deliver to each
Domestic Lender and each Multicurrency Lender, respectively)
reporting (i) Eligible Receivables as of the last Business Day of
the immediately preceding calendar week and (ii) Eligible Inventory
as of (A) the last Business Day of the second preceding calendar
month on any Weekly Borrowing Base Delivery Date on or prior to the
fifteenth day of the calendar month and (B) as of the last Business
Day of the immediately
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preceding calendar month on any Weekly Borrowing Base Delivery Date
after the fifteenth day of the calendar month, or, in any case of
clauses (i) or (ii) above, as of any other date requested by the
Administrative Agent in its sole discretion, together with such
supporting documents as the Administrative Agent requests, all with
respect to the Domestic Facility certified as being true, accurate
and complete by a Financial Officer of the Domestic Borrowers, and
all with respect to the Multicurrency Facility certified as being
true, accurate and complete by a Financial Officer of the
Multicurrency Borrowers.
2.5 ADDITION OF NEW SECTION 7.15. The following is added as
Section 7.15 of the Credit Agreement:
7.15. Anti-Terrorism and Anti-Money Laundering Law
Notices. Each Borrower shall immediately notify the Administrative
Agent if such Person obtains Knowledge that any holder of a direct
or indirect interest in any Borrower or Borrower Subsidiary, or any
director, manager or officer of any of such holder, (a) has been
listed on any of the Lists, (b) has become a Designated Person, (c)
is under investigation by any governmental authority for, or has
been charged with or convicted of, money laundering drug
trafficking, terrorist-related activities or other money laundering
predicate crimes, or any violation of the BSA, (d) has been assessed
civil penalties under any Anti-Money Laundering Laws, or (e) has had
funds seized or forfeited in an action under any Anti-Money
Laundering Laws.
2.6 AMENDMENT TO SECTION 8.05. Section 8.05 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
8.05. Insurance. Each Borrower shall maintain for itself
and its Subsidiaries, or shall cause each of its Subsidiaries to
maintain in full force and effect the insurance policies and
programs listed on Schedule 6.01-W or substantially similar policies
and programs or other policies and programs as are acceptable to the
Administrative Agent; provided, that at any time but no more than
once in any Fiscal Year unless an Event of Default has occurred and
is continuing, the Administrative Agent may engage (at the
Borrowers' expense) a third-party insurance consultant to examine,
review and appraise the insurance policies and programs maintained
by the Borrowers and their Subsidiaries, and to the extent deemed
reasonably necessary by the Administrative Agent (taking into
account, among other things, the cost of such additional coverage
and the risks insured against by such additional coverage), require
the Borrowers to modify the insurance policies and programs
currently in place or, in the event that any insurer is rated less
than A-, VII by A.M. Best (or an equivalent rating by another
insurance rating company reasonably satisfactory to the
Administrative Agent), replace the insurance policies and programs
provided by such insurer. Each policy relating to (a) the Collateral
and/or business interruption coverage for any Credit Party shall be
properly endorsed to the Administrative Agent, in form and substance
acceptable to the Administrative Agent, showing loss payable to the
NACCO Fourth Amendment
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Administrative Agent, for the benefit of the Holders and (b)
coverage for any Credit Party other than the foregoing, unless
otherwise permitted by the Administrative Agent, shall contain an
endorsement naming the Administrative Agent as an additional insured
under such policy, in each case in form and substance acceptable to
the Administrative Agent (collectively, the "Required Evidence of
Insurance") and delivered to the Administrative Agent in accordance
with Section 7.04. Such Required Evidence of Insurance furnished to
the Administrative Agent shall provide, unless otherwise permitted
by the Administrative Agent in its sole discretion, that the
insurance companies will give the Administrative Agent at least ten
(10) days' prior written notice of any cancellation due to
nonpayment of premiums thereunder and at least thirty (30) days'
prior written notice before any such policy or policies of insurance
shall be altered adversely to the interests of the Holders or
otherwise cancelled and that no act, whether willful or negligent,
or default of any Borrower, Borrower Subsidiary or other Person
shall affect the right of the Administrative Agent to recover under
such policy or policies of insurance in case of loss or damage. In
the event any Borrower or Borrower Subsidiary, at any time or times
hereafter shall fail to obtain or maintain any of the policies or
insurance required herein or to pay any premium in whole or in part
relating thereto, then the Administrative Agent, without waiving or
releasing any obligations or resulting Event of Default hereunder,
may at any time or times thereafter (but shall be under no
obligation to do so) obtain and maintain such policies of insurance
and pay such premiums and take any other action with respect thereto
which the Administrative Agent deems advisable. All sums so
disbursed by the Administrative Agent shall constitute Protective
Advances hereunder and be part of the Obligations, payable as
provided in this Agreement.
2.7 AMENDMENT TO SECTION 8.06(a). Section 8.06(a) of the
Credit Agreement is hereby amended to add the following proviso
immediately before the period (".") at the end of the last sentence
thereof:
"provided, however, that Collateral field examinations at the
Borrowers' expense may be conducted no more frequently than (i)
quarterly, if Excess Borrowing Base Capacity is less than an amount
equal to twenty percent (20%) of the Commitments then in effect (as
determined by the Administrative Agent based on the then most recent
set of Borrowing Base Certificates delivered by the Borrowers or,
during the period from June 30 to October 31 in any Fiscal Year,
based on the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers); (ii) semi-annually, if
Excess Borrowing Base Capacity is greater than or equal to an amount
equal to twenty percent (20%), but less than or equal to forty
percent (40%), of the Commitments then in effect (as determined by
the Administrative Agent based on the then most recent set of
Borrowing Base Certificates delivered by the Borrowers or, during
the period from June 30 to October 31 in any Fiscal Year, based on
the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers); (iii) annually, if Excess
Borrowing Base Capacity is greater than an amount equal to
NACCO Fourth Amendment
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forty percent (40%) of the Commitments then in effect (as determined
by the Administrative Agent based on the then most recent set of
Borrowing Base Certificates delivered by the Borrowers or, during
the period from June 30 to October 31 in any Fiscal Year, based on
the better of the two most recent sets of Borrowing Base
Certificates delivered by the Borrowers); or (iv) at any time an
Event of Default has occurred and is continuing"
2.8 ADDITION OF NEW SECTION 8.14. The following is added as
Section 8.14 of the Credit Agreement:
8.14 Delivery of Updated Schedules to the Credit
Agreement. Not later than 45 days after the Fourth Amendment
Effective Date, the Borrowers shall prepare and deliver to the
Administrative Agent updated Schedules to this Agreement (other than
Schedules 1.01.1, 1.01.4, 1.01.5, 1.01.6, 1.01.9, 7.05-A, 7.05-B,
7.05-C and 7.05-D), each in form and substance reasonably
satisfactory to the Administrative Agent (the date of such delivery
being the "Fourth Amendment Schedule Delivery Date"). As soon as
practicable after the Fourth Amendment Schedule Delivery Date, the
Agent shall deliver such updated Schedules to the Lenders.
2.9 ADDITION OF NEW SECTION 8.15. The following is added as
Section 8.15 of the Credit Agreement:
8.15. Compliance with Anti-Money Laundering Laws and
Anti-Terrorism Laws. Each Borrower and Borrower Subsidiary has
taken, and agrees that it shall continue to take, reasonable
measures (including, without limitation, the adoption of adequate
policies, procedures and internal controls) appropriate to the
circumstances (in any event as required by applicable Requirements
of Law), to ensure that such Person is and shall be in compliance
with all current and future Anti-Money Laundering Laws and
Anti-Terrorism Laws and applicable Requirements of Law and
governmental guidance for the prevention of terrorism, terrorist
financing and drug trafficking.
2.10 AMENDMENTS TO SECTION 9.01. Section 9.01 of the Credit
Agreement is hereby amended as follows:
(a) to insert "after the Fourth Amendment Effective
Date" immediately before the semi-colon (";") at the end of clause
(g)(v) thereof;
(b) to delete in its entirety the word "and" at the
end of clause (p) thereof;
(c) to redesignate clause (q) thereof as clause (r)
and delete in its entirety the reference to "(p)" in such clause and
substitute "(q)" in lieu thereof;
NACCO Fourth Amendment
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(d) to add a new clause (q) as follows:
"(q) Parent Subordinated Indebtedness; and"; and
(e) to delete in its entirety the reference to
"clauses (d) and (g)" in the proviso to such Section and to
substitute "clauses (d), (g) and (q)" in lieu thereof.
2.11 AMENDMENTS TO SECTION 9.02. Section 9.02 of the Credit
Agreement is hereby amended as follows:
(a) to amend and restate clause (b)(iv) thereof in its
entirety to read as follows:
"(iv) such sale is of the assets or Capital Stock of (i) any
Subsidiary that was a Subsidiary of NMHG Distribution as of
the Closing Date (a "Distribution Subsidiary") or (ii) a
Borrower Subsidiary created after the Closing Date whose only
assets at the time of formation consisted of assets acquired
from a Distribution Subsidiary ("Distribution Property") and
whose only assets at the time of sale consist of Distribution
Property and assets acquired or originated in the ordinary
course of business;"
(b) to delete in its entirety the reference to "Net
Cash Proceeds" in clause (g) thereof and substitute "Net Cash
Proceeds of Sale" in lieu thereof.
2.12 AMENDMENTS TO SECTION 9.04. Section 9.04 of the Credit
Agreement is hereby amended as follows:
(a) to insert "after the Fourth Amendment Effective
Date" immediately before the semi-colon (";") at the end of clause
(e)(v) thereof;
(b) to delete the word "and" at the end of clause (g)
thereof;
(c) to replace the period (".") at the end of clause
(h) thereof with "; and"; and
(d) to add a new clause (i) as follows:
"(i) Investments consisting of purchases of
Senior Notes permitted by Section 9.06(b)(i)(B)."
2.13 AMENDMENTS TO SECTION 9.05. Section 9.05 of the Credit
Agreement is hereby amended as follows:
(a) to amend and restate clause (b) thereof in its
entirety to read as follows:
NACCO Fourth Amendment
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"(b) (i) Permitted Existing Accommodation
Obligations and any extensions, renewals or replacements
thereof, provided that the aggregate Indebtedness under any
such extension, renewal or replacement is not greater than the
Indebtedness under, and shall be on terms no less favorable to
the Borrower or such Subsidiary than the terms of, the
Permitted Existing Accommodation Obligation so extended,
renewed or replaced; and (ii) Accommodation Obligations
evidenced by Financing Agreements of the type described in
clause (c) of the definition thereof, and any renewal,
amendment, restatement or replacement thereof permitted by the
definition thereof;"
(b) to insert "after the Fourth Amendment Effective
Date" immediately before the semi-colon (";") at the end of clause
(f)(v) thereof;
(c) to delete the word "and" at the end of clause (f)
thereof;
(d) to redesignate clause (g) thereof as clause (h)
and delete in its entirety the reference to "(f)" in such clause and
substitute "(g)" in lieu thereof; and;
(e) to add a new clause (g) as follows:
"(g) Parent Subordinated Indebtedness; and"; and
2.14 AMENDMENTS TO SECTION 9.06(b). Section 9.06(b) of the
Credit Agreement is hereby amended as follows:
(a) to amend and restate clause (i) thereof in its
entirety to read as follows:
(i) (A) regularly scheduled payments of principal
and interest by NMHG on the Senior Notes and (B) prepayments,
redemptions and/or purchases of all or any portion of the
Senior Notes so long as after giving effect to any such
prepayment, redemption or purchase, Availability under all
Credit Facilities is greater than or equal to $40,000,000;
(b) to delete the word "and" at the end of clause (vi)
thereof;
(c) to insert the word "and" at the end of clause
(vii) thereof; and
(d) to add a new clause (viii) as follows:
(viii) payments of principal and interest by the
Borrowers and Borrower Subsidiaries with respect to Parent
Subordinated Indebtedness so long as after giving effect to
any such payment,
NACCO Fourth Amendment
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Availability under all Credit Facilities is greater than or
equal to $10,000,000;
(e) to amend the proviso at the end thereof to delete
in its entirety the reference therein to "clauses (iii)(B), (vi)(C)
and (vii)" and to substitute "clauses (i)(B), (iii)(B), (vi)(C),
(vii) and (viii)" in lieu thereof
2.15 ADDITION OF NEW SECTION 9.19. The following is added as
Section 9.19 of the Credit Agreement:
9.19. No Violation of Anti-Terrorism Laws. The Borrowers
and Borrower Subsidiaries shall not: (a) violate any of the
prohibitions set forth in the Anti-Terrorism Laws applicable to any
of them or the business that they conduct, or (b) require the
Administrative Agent, the Issuing Bank or the Lenders to take any
action that would cause the Administrative Agent or the Lenders to
be in violation of the prohibitions set forth in the Anti-Terrorism
Laws, it being understood that the Administrative Agent, the Issuing
Bank or any Lender can refuse to honor any such request or demand
otherwise validly made by any Borrower under this Agreement or any
Loan Document.
2.16 ADDITION OF NEW SECTION 9.20. The following is added as
Section 9.20 of the Credit Agreement:
9.20 Anti-Terrorism Laws. The Borrowers shall not, and
shall not permit any Borrower Subsidiary to, directly or indirectly,
(a) Knowingly conduct any business or engage in making or receiving
any contribution of funds, goods or services to or for the benefit
of any Designated Person or any other Person identified in any List,
(b) Knowingly deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant
to any Anti-Terrorism Law, (c) repay the Loans with any funds
derived from any unlawful activity with the result that the making
of the Loans would be in violation of law, or (d) Knowingly engage
in or conspire to engage in any transaction that evades or avoids,
or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in any Anti-Terrorism Law (and the
Borrowers shall deliver to the Administrative Agent any
certification or other evidence requested from time to time by the
Administrative Agent in its reasonable discretion, confirming
compliance with this Section 9.20).
2.17 AMENDMENT TO SECTION 10.01. Section 10.01 of the Credit
Agreement is hereby amended to delete in its entirety the reference
therein to "$15,000,000" and to substitute "$10,000,000" in lieu thereof.
2.18 AMENDMENT TO SECTION 10.02. Section 10.02 of the Credit
Agreement is hereby amended to amend and restate in its entirety the table
of periods and ratios therein to read as follows:
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Period Ratio
- ------ -----
June 30, 2002 6.60x
September 30, 2002 6.25x
December 31, 2002 5.25x
March 31, 2003 4.25x
June 30, 2003 3.50x
September 30, 2003 3.50x
December 31, 2003 3.50x
March 31, 2004 3.25x
June 30, 2004 3.75x
September 30, 2004 3.75x
December 31, 2004 and every
fiscal quarter thereafter 3.25x
2.19 AMENDMENT TO SECTION 10.04. Section 10.04 of the Credit
Agreement is hereby amended to amend and restate in its entirety the table
of periods and Capital Expenditures therein to read as follows:
Period Capital Expenditures
- ------ --------------------
FYE December 31, 2002 $30,000,000
FYE December 31, 2003 $65,000,000
FYE December 31, 2004 $80,000,000
FYE December 31, 2005 $80,000,000
FYE December 31, 2006 $80,000,000
Through June 30, 2007 $80,000,000
NACCO Fourth Amendment
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2.20 ADDITION OF NEW SECTION 12.10. The following is added as
Section 12.10 of the Credit Agreement:
12.10. No Reliance on Administrative Agent's Customer
Identification Program. Each Lender acknowledges and agrees that
neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on the Administrative Agent to carry out such
Lender's, Affiliate's, participant's or assignee's customer
identification program, or other obligations required or imposed
under or pursuant to the USA Patriot Act or the regulations
thereunder, including the regulations contained in 31 C.F.R. 103.121
(as hereafter amended or replaced, the "CIP Regulations"), or any
other Anti-Terrorism Law, including any programs involving any of
the following items relating to or in connection with any of the
Borrowers, Borrower Subsidiaries, their Affiliates or their agents,
the Loan Documents or the transactions hereunder or contemplated
hereby: (a) any identity verification procedures, (b) any
recordkeeping, (c) comparisons with government lists, (d) customer
notices or (e) other procedures required under the CIP Regulations
or such other Anti-Terrorism Laws.
2.21 ADDITION OF NEW SECTION 12.11. The following is added as
Section 12.11 of the Credit Agreement:
12.11. USA Patriot Act. Within 10 days after the Fourth
Amendment Effective Date and at such other times as are required
under the USA Patriot Act, each Lender and each of its assignees and
participants that is not incorporated under the laws of the United
States of America or a state thereof (and is not excepted from the
certification requirement contained in Section 313 of the USA
Patriot Act and the applicable regulations because it is both (a) an
affiliate of a depository institution or foreign bank that maintains
a physical presence in the United States or foreign country, and (b)
subject to supervision by a banking authority regulating such
affiliated depository institution or foreign bank) shall deliver to
the Administrative Agent the certification, or, if applicable,
recertification, certifying that such Lender is not a "shell" and
certifying to other matters as required by Section 313 of the USA
Patriot Act and the applicable regulations.
2.22 AMENDMENT TO EXHIBIT A. Exhibit A to the Credit
Agreement is hereby amended and restated in its entirety in the form
attached hereto as Annex A.
2.23 AMENDMENTS TO CERTAIN SCHEDULES. Schedules 1.01.1,
1.01.4, 1.01.5, 1.01.6, 7.05-A and 7.05-B to the Credit Agreement are
hereby amended and restated in their entirety and new Schedules 1.01.9,
7.05-C and 7.05-D are hereby added as Schedules to the Credit Agreement,
each of which is attached hereto as Annex B.
3. POST EFFECTIVE DATE AMENDMENTS. Upon the "Fourth Amendment
Schedule Delivery Date" (as defined in Section 2.1(t) above), the Credit
Agreement is hereby amended as follows:
NACCO Fourth Amendment
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3.1 AMENDMENTS TO ARTICLE VI. Sections 6.01(c), 6.01(r),
6.01(u), 6.01(v), 6.01(w), 6.01(y) and 6.01(z) of the Credit Agreement are
hereby amended to delete in their entirety each reference therein to "as
of the Closing Date" and to substitute "as of the Fourth Amendment
Schedule Delivery Date" in lieu thereof; and
3.2 AMENDMENTS TO CERTAIN SCHEDULES. All Schedules to the
Credit Agreement (other than Schedules 1.01.1, 1.01.4, 1.01.5, 1.01.6,
1.01.9, 7.05-A, 7.05-B, 7.05-C and 7.05-D) are amended and restated in
their entirety with the Schedules delivered pursuant to Section 8.14 of
the Credit Agreement.
4. EFFECT OF CERTAIN AMENDMENTS. Each of the parties hereto
acknowledges and agrees that, after giving effect to the amendments set forth in
Sections 2.1(e) and 2.11, the Availability Reserve put in place at the time of
the sale of certain assets of NMHG Distribution to MH Equipment Ohio, LLC in
January 2003 (as required by Section 9.02(b)(iv) of the Credit Agreement as in
effect immediately prior to this Amendment) shall be eliminated and that no
future Availability Reserves based solely on the sale of other assets permitted
to be sold pursuant to Section 9.02(b)(iv) of the Credit Agreement shall be
required to be put in place.
5. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent
and warrant to each Lender, each Issuing Bank and the Administrative Agent that
(a) all of the representations and warranties of the Borrowers and the Borrower
Subsidiaries in the Credit Agreement and in any other Loan Document are true and
correct in all material respects on and as of the Fourth Amendment Effective
Date as though made to each Lender, each Issuing Bank and the Administrative
Agent on and as of such date (other than representations and warranties which
expressly speak as of a different date, which representations shall be made only
on such date) and (b) as of the Fourth Amendment Effective Date, no Event of
Default or Default has occurred and is continuing.
6. FOURTH AMENDMENT EFFECTIVE DATE. This Fourth Amendment shall
become effective as of the date first above written (the "Fourth Amendment
Effective Date") upon the satisfaction of the following conditions:
6.1 The Administrative Agent shall have received each of the
following documents:
(a) counterparts hereof executed by the Borrowers, the
Administrative Agent and each Lender;
(b) reaffirmations of the Obligations and the grant of
Liens executed by the Borrowers and Guarantors, each on terms and
conditions satisfactory to the Administrative Agent;
(c) written confirmation from local counsel to the
Administrative Agent in England, The Netherlands, Scotland, Northern
Ireland and Italy that no further action is required to be taken as
a result of this Fourth Amendment in connection with the Loan
Documents governed by the laws of
NACCO Fourth Amendment
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such countries or describing the documentation which is reasonably
required (such documentation being the "Additional Foreign Law
Documentation");
(d) all Additional Foreign Law Documentation, if any,
executed by the applicable Credit Parties, together with legal
opinions with respect thereto, each in form and substance reasonably
satisfactory to the Administrative Agent; provided, however, that
the Administrative Agent may, in its sole discretion, waive this
requirement solely as a condition to the effectiveness of this
Fourth Amendment and grant additional time for the delivery of such
Additional Foreign Law Documentation and related legal opinions;
(e) a Certificate from the Secretary, Assistant
Secretary or Director of each Borrower and each Guarantor with
respect to corporate resolutions authorizing the execution, delivery
and performance of this Fourth Amendment and the agreements and
documents executed and delivered in connection herewith and the
incumbency of the officers of the Borrowers and Guarantors executing
and delivering the same, and good standing certificates for the
Borrower and Guarantors from the states identified on Annex C
attached hereto and made a part hereof;
(f) a Certificate of a Financial Officer of the
Borrowers dated as of the Fourth Amendment Effective Date, executed
and delivered on behalf of the Borrowers, certifying that (i) no
Material Adverse Effect has occurred since December 31, 2001, (ii)
all conditions precedent set forth in this Fourth Amendment which
are required to be satisfied have been satisfied and (iii) after
giving effect to this Fourth Amendment, all representations and
warranties in the Credit Agreement, as amended by this Fourth
Amendment, and the other Loan Documents are true and correct in all
material respects, no Default or Event of Default has occurred and
is continuing and no event that is reasonably likely to have a
Material Adverse Effect has occurred and is continuing; and
(g) amended and restated Notes reflecting the
amendments to the Domestic Commitments and Multicurrency Commitments
pursuant to this Fourth Amendment.
6.2 Each of the representations and warranties contained in
this Fourth Amendment shall be true and correct in all material respects
on and as of the Fourth Amendment Effective Date.
6.3 As of the Fourth Amendment Effective Date, no Event of
Default or Default shall have occurred and be continuing.
6.4 No event shall exist or shall have occurred which is
reasonably likely to have a Material Adverse Effect.
NACCO Fourth Amendment
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6.5 The Borrowers shall have reimbursed the Administrative
Agent for the reasonable fees, costs and expenses incurred by or owing to
it in connection with this Fourth Amendment, and all other outstanding
fees and expenses incurred prior to the Fourth Amendment Effective Date,
in each case which are payable under Section 14.02 of the Credit
Agreement.
6.6 The Borrowers shall have remitted to the Administrative
Agent: (a) for the ratable account of the Lenders party to this Fourth
Amendment, an amendment fee in the amount of 0.25% of the aggregate
Commitments of the Lenders which are in effect as of the Fourth Amendment
Effective Date and (b) for the account of CNAI, the fees set forth in the
Fourth Amendment Fee Letter which are payable on the Fourth Amendment
Effective Date, all such fees shall be fully earned, non-refundable, and
payable on the Fourth Amendment Effective Date.
7. MISCELLANEOUS.
7.1 This Fourth Amendment is a Loan Document. The headings
herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
7.2 On and after the Fourth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import, and each reference in the other Loan
Documents to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby. Except to the extent specifically
amended or modified hereby, all of the terms of the Credit Agreement and
the other Loan Documents shall remain unchanged and in full force and
effect and are hereby ratified and confirmed in all respects.
7.3 The execution, delivery and effectiveness of this Fourth
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender, the Issuing Bank or
the Administrative Agent under the Credit Agreement or any of the Loan
Documents, nor obligate any Lender, the Issuing Bank or the Administrative
Agent to agree to similar amendments in the future.
7.4 The Indebtedness evidenced by the Credit Agreement, as
in effect prior to the Fourth Amendment Effective Date (the "Existing
Credit Agreement"), and the Notes delivered to the Lenders prior to the
Fourth Amendment Effective Date (the "Existing Notes") constitutes the
same Indebtedness evidenced by the Credit Agreement as amended hereby and
the amended and restated Notes delivered pursuant to Section 6.1(g) above
(the "Amended and Restated Notes"), and neither this Fourth Amendment nor
the Amended and Restated Notes are in any way intended to constitute a
novation of such Indebtedness, the Existing Credit Agreement, the Existing
Notes, any of the other Loan Documents or the Obligations outstanding
under any of the foregoing.
NACCO Fourth Amendment
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8. COUNTERPARTS; FACSIMILE DELIVERY. This Fourth Amendment may be
executed in counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. Delivery of an executed counterpart of this Fourth
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
9. GOVERNING LAW. THIS FOURTH AMENDMENT, AND ALL ISSUES RELATING
TO THIS FOURTH AMENDMENT, INCLUDING THE VALIDITY, ENFORCEABILITY, INTERPRETATION
OR CONSTRUCTION OF THIS FOURTH AMENDMENT OR ANY PROVISION HEREOF, SHALL BE
GOVERNED BY, AND SHALL BE DETERMINED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
[Signature pages and Annexes A, B and C follow]
NACCO Fourth Amendment
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IN WITNESS WHEREOF, the Administrative Agent, the Lenders and the
Borrowers have caused this Fourth Amendment to be executed by their respective
officers thereunto duly authorized as of the date first above written.
NMHG HOLDING CO.
By: /s/ Geoffrey D. Lewis
---------------------------------
Name: Geoffrey D. Lewis
Title: Vice President
NACCO MATERIALS HANDLING GROUP,
INC., individually and as successor
by merger to NMHG Distribution Co.
By: /s/ Geoffrey D. Lewis
---------------------------------
Name: Geoffrey D. Lewis
Title: Vice President
NACCO MATERIALS HANDLING LIMITED
By: /s/ Geoffrey D. Lewis
---------------------------------
Name: Geoffrey D. Lewis
Title: Director
NACCO MATERIALS HANDLING B.V.
By: NACCO MATERIALS HANDLING GROUP,
LTD., its Managing Director
By: /s/ Geoffrey D. Lewis
---------------------------------
Name: Geoffrey D. Lewis
Title: Director
NACCO Fourth Amendment
Signature Page
CITICORP NORTH AMERICA, INC., as
Administrative Agent and as a
Domestic Lender
By: /s/ Miles D. McManus
---------------------------------
Miles D. McManus
Vice President and Director
CITIBANK INTERNATIONAL PLC, as a
Multicurrency Lender
By: /s/ Miles D. McManus
---------------------------------
Miles D. McManus
Authorized Signatory
NACCO Fourth Amendment
Signature Page
CREDIT SUISSE FIRST BOSTON, as a
Domestic Lender and as a
Multicurrency Lender
By: /s/ Phillip Ho
---------------------------------
Name: Phillip Ho
Title: Director
By: /s/ Cassandra Droogan
---------------------------------
Name: Cassandra Droogan
Title: Associate
NACCO Fourth Amendment
Signature Page
WELLS FARGO FOOTHILL, INC. (f/k/a
Foothill Capital Corporation), as a
Domestic Lender
By: /s/ Michael P. Baranowski
---------------------------------
Name: Michael P. Baranowski
Title: Vice President
NACCO Fourth Amendment
Signature Page
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Domestic Lender
By: /s/ Brian Schwinn
---------------------------------
Name: Brian Schwinn
Title: Duly Authorized Signatory
NACCO Fourth Amendment
Signature Page
GMAC COMMERCIAL FINANCE LLC (f/k/a
GMAC Business Credit, LLC), as a
Domestic Lender and as a
Multicurrency Lender
By: /s/ Christopher Gauch
---------------------------------
Name: Christopher Gauch
Title: Vice President
NACCO Fourth Amendment
Signature Page
KEY CORPORATE CAPITAL INC., as a
Domestic Lender and as a
Multicurrency Lender
By: /s/ Timothy W. Kenealy
---------------------------------
Name: Timothy W. Kenealy
Title: Assistant Vice President
NACCO Fourth Amendment
Signature Page
NATIONAL CITY COMMERCIAL FINANCE
INC., as a Domestic Lender
By: /s/ Tom Buda
---------------------------------
Name: Tom Buda
Title: Vice President
NACCO Fourth Amendment
Signature Page
STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM, as a
Domestic Lender
By: /s/ Curtis D. Ishii
---------------------------------
Name: Curtis D. Ishii
Title: Senior Investment Officer
NACCO Fourth Amendment
Signature Page
U.S. BANK NATIONAL ASSOCIATION, as a
Domestic Lender and as a
Multicurrency Lender
By: /s/ Dale Parshall
---------------------------------
Name: Dale Parshall
Title: Vice President
NACCO Fourth Amendment
Signature Page
ANNEX A
to
FOURTH AMENDMENT TO CREDIT AGREEMENT
dated as of June 30, 2004
AMENDED AND RESTATED EXHIBIT A
APPLICABLE APPLICABLE
APPLICABLE APPLICABLE APPLICABLE LETTER OF UNUSED
Leverage FIXED RATE FLOATING OVERDRAFT CREDIT FEE COMMITMENT
Level Ratio MARGIN RATE MARGIN RATE MARGIN RATE FEE RATE
- ----- ----- ------ ----------- ----------- ---- --------
1 Less than 2.50x 2.000% 1.000% 2.250% 1.750% 0.375%
2 Greater than or equal to
2.50x and less than 3.00x 2.250% 1.250% 2.500% 2.000% 0.375%
3 Greater than or equal to
3.00x 2.500% 1.500% 2.750% 2.250% 0.375%
NACCO Fourth Amendment
ANNEX B
to
FOURTH AMENDMENT TO CREDIT AGREEMENT
dated as of June 30, 2004
SCHEDULES TO CREDIT AGREEMENT
Attached.
NACCO Fourth Amendment
SCHEDULE 1.01.1
COMMITMENTS
Aggregate Domestic Multicurrency
Lender Commitment Commitment Commitment
- ------ ---------- ---------- ----------
Citicorp North America, Inc. $22,100,000, 16.34% $ 7,900,000, 8.76%
Citibank International plc $14,200,000, 31.52%
Credit Suisse First Boston $18,000,000, 13.35% $ 6,4000,000, 7.15% $11,600,000, 25.74%
U.S. Bank National Association $16,600,000, 12.29% $ 8,400,000, 9.38% $ 8,100,000, 18.10%
Key Corporate Capital Inc. $16,200,000, 12.02% $10,700,000, 11.87% $ 5,500,000, 12.32%
Wells Fargo Foothill, Inc. $15,800,000, 11.70% $15,800,000, 17.54% N/A
National City Commercial
Finance Inc. $15,800,000, 11.70% $15,800,000, 17.54% N/A
GMAC Commercial Finance LLC $16,200,000, 12.02% $10,700,000, 11.87% $ 5,500,000, 12.32%
State of California Public
Employees' Retirement System $ 7,200,000, 5.30% $ 7,200,000, 7.95% N/A
General Electric Capital
Corporation $ 7,200,000, 5.30% $ 7,200,000, 7.95% N/A
NACCO Fourth Amendment
SCHEDULE 7.05-A
MONTHLY DOMESTIC BORROWING BASE DELIVERY DATES (3Q/4Q 2004)
Monthly Borrowing Base Eligible Receivables Reported Eligible Inventory Reported
Delivery Date As Of: As Of:
------------- ------ ------
July 7, 2004 June 30, 2004 May 31, 2004
August 11, 2004 July 31, 2004 June 30, 2004
September 8, 2004 August 31, 2004 July 31, 2004
October 6, 2004 September 30, 2004 August 31, 2004
November 10, 2004 October 31, 2004 September 30, 2004
December 8, 2004 November 30, 2004 October 31, 2004
NACCO Fourth Amendment
SCHEDULE 7.05-B
MONTHLY MULTICURRENCY BORROWING BASE DELIVERY DATES (3Q/4Q 2004)
Monthly Borrowing Base Eligible Receivables Reported Eligible Inventory Reported
Delivery Date As Of: As Of:
------------- ------ ------
July 7, 2004 June 29, 2004 May 31, 2004
August 11, 2004 July 29, 2004 June 30, 2004
September 8, 2004 August 30, 2004 July 31, 2004
October 6, 2004 September 29, 2004 August 31, 2004
November 10, 2004 October 28, 2004 September 30, 2004
December 8, 2004 November 29, 2004 October 31, 2004
NACCO Fourth Amendment
SCHEDULE 7.05-C
SEMI-MONTHLY DOMESTIC BORROWING BASE DELIVERY DATES (3Q/4Q 2004)
Semi-Monthly Borrowing Eligible Receivables Reported Eligible Inventory Reported
Base Delivery Date As Of: As Of:
------------------ ------ ------
July 7, 2004 June 30, 2004 May 31, 2004
July 21, 2004 July 16, 2004 June 30, 2004
August 11, 2004 July 31, 2004 June 30, 2004
August 25, 2004 August 20, 2004 July 31, 2004
September 8, 2004 August 31, 2004 July 31, 2004
September 22, 2004 September 17, 2004 August 31, 2004
October 6, 2004 September 30, 2004 August 31, 2004
October 20, 2004 October 15, 2004 September 30, 2004
November 3, 2004 October 31, 2004 September 30, 2004
November 17, 2004 November 12, 2004 October 31, 2004
December 8, 2004 November 30, 2004 October 31, 2004
December 22, 2004 December 17, 2004 November 30, 2004
NACCO Fourth Amendment
SCHEDULE 7.05-D
SEMI-MONTHLY MULTICURRENCY BORROWING BASE DELIVERY DATES (3Q/4Q 2004)
Semi-Monthly Borrowing Eligible Receivables Reported Eligible Inventory Reported
Base Delivery Date As Of: As Of:
------------------ ------ ------
July 7, 2004 June 29, 2004 May 31, 2004
July 21, 2004 July 16, 2004 June 30, 2004
August 11, 2004 July 29, 2004 June 30, 2004
August 25, 2004 August 20, 2004 July 31, 2004
September 8, 2004 August 30, 2004 July 31, 2004
September 22, 2004 September 17, 2004 August 31, 2004
October 6, 2004 September 29, 2004 August 31, 2004
October 20, 2004 October 15, 2004 September 30, 2004
November 3, 2004 October 28, 2004 September 30, 2004
November 17, 2004 November 12, 2004 October 31, 2004
December 8, 2004 November 29, 2004 October 31, 2004
December 22, 2004 December 17, 2004 November 30, 2004
NACCO Fourth Amendment
ANNEX C
to
FOURTH AMENDMENT TO CREDIT AGREEMENT
dated as of June 30, 2004
GOOD STANDING JURISDICTIONS
JURISDICTION(S) IN WHICH QUALIFIED AND/OR
NAME OF ENTITY: INCORPORATED:
- --------------- -----------------------------------------
NMHG Holding Co. Delaware
NACCO Materials Handling Group, Inc. Alabama New Jersey
California New York
Delaware North Carolina
Florida North Dakota
Georgia Ohio
Illinois Oregon
Indiana Pennsylvania
Kentucky Tennessee
Michigan Texas
Minnesota Virginia
Hyster Overseas Capital Corporation, LLC Delaware
NMHG Oregon, Inc. Oregon
Hyster-Yale Materials Handling, Inc. Delaware
California
Oregon
NACCO Fourth Amendment