Exhibit 4.9
AMENDMENT NO. 1
This AMENDMENT NO. 1 ("Amendment") is made as of August 28, 1998 by
and among MMH HOLDINGS, INC., a Delaware corporation ("Holdings"), MORRIS
MATERIAL HANDLING, INC., a Delaware corporation, as a U.S. Borrower, MATERIAL
HANDLING, LLC, a Delaware limited liability company, as a U.S. Borrower, MORRIS
MATERIAL HANDLING, LTD., a company organized under the laws of England and
Wales, as the U.K. Borrower, MONDEL ULC, an unlimited liability company
organized under the laws of Nova Scotia, as a Canadian Borrower, and KAVERIT
STEEL AND CRANE ULC, an unlimited liability company organized under the laws of
Nova Scotia, as a Canadian Borrower, the lending institutions listed on the
signature pages hereto (each, a "Bank" and, collectively, the "Banks") and the
New York branch of CREDIT AGRICOLE INDOSUEZ, as syndication agent for the Banks
(in such capacity, the "Syndication Agent"), BANKBOSTON, N.A., as documentation
agent for the Banks (in such capacity, the "Documentation Agent"), and CANADIAN
IMPERIAL BANK OF COMMERCE, as administrative agent and as collateral agent for
the Banks (in such capacities, the "Administrative Agent" and, together with the
Syndication Agent and the Documentation Agent, the "Agents"). This Agreement is
made with reference to that certain Credit Agreement dated as of March 30, 1998,
by and among Holdings, the U.S. Borrowers, the U.K. Borrower, the Canadian
Borrowers, Agents and the Banks (the "Credit Agreement"). All capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
WHEREAS, Holdings, the Borrowers, Agents and the Banks entered into
the Credit Agreement; and
WHEREAS, the U.K. Borrower desires the ability to obtain letters of
credit and guarantees, including bid bonds and performance bonds, under the
limits of the U.K. Swingline Loan from the U.K. Swingline Bank; and
WHEREAS, the Required Banks desire to amend the Credit Agreement to
permit the U.K. Borrower to obtain such back-up obligations and to amend certain
other provisions of the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
2
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT
1.1 Section 6.14 of the Credit Agreement (Pledge of Additional
Collateral) is hereby amended by deleting clause (i) of the first sentence
thereof and inserting the following:
"(i) Real Property in the United States or the United Kingdom;
provided that for purposes of this Section 6.14, leased Real Property
shall only be included if manufacturing operations take place on such
leased Real Property,"
1.2 Section 7.06 (p) of the Credit Agreement (Advances, Investments
and Loans) is hereby amended by deleting the proviso contained therein.
1.3 Section 7.09 (viii) of the Credit Agreement (Transaction with
Affiliates) is hereby amended by deleting such clause and inserting the
following:
"(viii) loans or advances to employees and officers of the Company or
its Subsidiaries on or within 30 days after the Closing Date the
proceeds of which are used to acquire Management Stock."
1.4 Section 7.20 of the Credit Agreement (Sale and Lease-Backs) is
hereby amended by adding the following on the second line thereof after the word
"hereof" and before the comma:
"or the Exempt Sale and Lease-Back Transaction"
1.5 Section 9 of the Credit Agreement (Definitions) is hereby amended
by deleting the definitions of Designated Acquisition, U.K. Swingline Loan and
U.K. Swingline Loan Commitment and inserting the following:
"'Designated Acquisition' means such acquisition as shall be effected
by the U.S. Borrowers in compliance with Section 4.03 (or, in the case
of a Designated Acquisition paid for with funds other than the
proceeds of an Acquisition Term Loan, in compliance with the
informational requirements of Sections 4.03(b) and (d) - (h) as if
proceeds of an Acquisition Term Loan were used) and Section 6.18;
provided that the Designated Acquisition entity engages in the MHE
Business, and businesses or activities similar or reasonably related
thereto."
3
"'U.K. Swingline Loan' means any Swingline Loan, documentary letter of
credit or guarantee, including any bid bond or performance bond made
or issued by a U.K. Swingline Bank to or for the benefit of the U.K.
Swingline Borrower; provided that the terms and conditions of any
documentary letter of credit or guarantee, including any bid bond or
performance bond shall be as agreed between the U.K. Swingline Bank
and the U.K. Swingline Borrower."
"'U.K. Swingline Loan Commitment' means, with respect to each Bank,
the amount set forth below such Bank's name on the signature pages
hereto directly across from the entry entitled "U.K. Swingline Loan
Commitment," as such amount may be reduced from time to time pursuant
to Sections 2.01, 2.02, 3.02 and/or 8; provided that the U.K.
Swingline Loan Commitment of ABN AMRO Bank shall be reduced in an
amount equal to twelve and one-half percent (12.5%) of the notional
amount of, and for the time during which there exists, any outstanding
forward foreign exchange contract with the U.K. Borrower."
1.6 Section 11.12 of the Credit Agreement (Amendment or Waiver) is
hereby amended by adding the following sentence to the end thereof:
"No provision of Sections 3.02(A)(f) through (l) may be amended
without the written consent of (a) Banks holding 51% of the Total A
Term Loan Commitment, the Total Acquisition Term Loan Commitment and
the Total Revolving Loan Commitment (or, if the Total A Term Loan
Commitment, the Total Acquisition Term Loan Commitment and the Total
Revolving Loan Commitment shall have been terminated, at least 51% of
the outstanding A Term Loans, Acquisition Term Loans and Revolving
Loans) and (b) Banks holding 51% of the Total B Term Loan Commitment
(or, if the Total B Term Loan Commitment has been terminated, 51% of
the outstanding B Term Loans)."
SECTION 2. RATIFICATION OF AGREEMENT
2.1 To induce the Required Banks to enter into this Amendment, the
Borrowers and the Guarantors jointly and severally represent and warrant that
after giving effect to this Amendment no violation of the terms of the Credit
Agreement exist and all representations and warranties contained in the Credit
Agreement are true, correct and complete in all material
4
respects on and as of the date hereof except to the extent such representations
and warranties specifically relate to an earlier date in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
2.2 Except as expressly set forth in this Amendment, the terms,
provisions and conditions of the Credit Agreement and the Credit Documents are
unchanged, and said agreements, as amended, shall remain in full force and
effect and are hereby confirmed and ratified.
SECTION 3. COUNTERPARTS; EFFECTIVENESS
This Amendment may be executed in any number of counterparts, and all
such counterparts taken together shall be deemed to constitute one and the same
instrument. Signature pages may be detached from counterpart documents and
reassembled to form duplicate executed originals. This Amendment shall become
effective as of the date hereof upon the execution of the counterparts hereof by
the Borrowers, the Guarantors and the Required Banks.
SECTION 4. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 5. ACKNOWLEDGMENT AND CONSENT BY THE GUARANTORS
Each Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations under its
Guarantee shall not be impaired or affected and such Guarantee is, and shall
continue to be, in full force and effect and is hereby confirmed and ratified in
all respects.
* * * * *
5
Witness the execution hereof by the respective duly authorized
officers of the undersigned as of the date first above written.
MMH HOLDINGS, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
MORRIS MATERIAL HANDLING, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Vice President
MATERIAL HANDLING, LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
MORRIS MATERIAL HANDLING LTD.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Director
MONDEL ULC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: President
KAVERIT STEEL AND CRANE ULC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: President
6
MHE TECHNOLOGIES, INC.,
as a Guarantor
By: /s/ Richard F. Klumpp
----------------------------------
Name: Richard F. Klumpp
Title: Vice President
PHMH HOLDING COMPANY,
as a Guarantor
By: /s/ Richard F. Klumpp
----------------------------------
Name: Richard F. Klumpp
Title: Vice President
MATERIAL HANDLING EQUIPMENT NEVADA
CORPORATION,
as a Guarantor
By: /s/ Ivan Farris
----------------------------------
Name: Ivan Farris
Title: Vice President
CMH MATERIAL HANDLING, LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
EPH MATERIAL HANDLING, LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
7
HARNISHCHFEGER DISTRIBUTION &
SERVICE LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
HPH MATERIAL HANDLING, LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
MORRIS MATERIAL HANDLING, LLC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Manager
MORRIS MECHANICAL HANDLING, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
MPH CRANE, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
NPH MATERIAL HANDLING, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
8
PHME SERVICE, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
SPH CRANE & HOIST, INC.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: VP/Treasurer
9
MHE CANADA ULC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: President
3016117 NOVA SCOTIA ULC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: President
HYDRAMACH ULC
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: President
10
BUTTERS ENGINEERING SERVICES
LIMITED
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Director
IVERCOE ENGINEERING LIMITED
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Director
LOWFILE LIMITED
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Director
11
HERCULES S.A. DE C.V.
By: /s/ David D. Smith
----------------------------------
Name: David D. Smith
Title: Director
12
CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative
Agent and Collateral Agent
and as a Bank
By: /s/ Timothy Doyle
----------------------------------
Name: Timothy Doyle
Title: Managing Director
CIBC Inc., as a Bank
By: /s/ Timothy Doyle
----------------------------------
Name: Timothy Doyle
Title: Managing Director
CREDIT AGRICOLE INDOSUEZ,
As Syndication Agent and
As a Bank
By: /s/
----------------------------------
Name:
Title:
By: /s/
----------------------------------
Name:
Title:
BANKBOSTON, N.A.
As Documentation Agent and
As a Bank
By:
----------------------------------
Name:
Title:
ABN-AMRO BANK N.V., as a Bank
By: /s/ Denis J. Campbell IV
----------------------------------
Name: Denis J. Campbell IV
Title: Vice President
13
CREDITANSTALT CORPORATE FINANCE,
Inc., as a Bank
By: /s/ Patrick J. Rounds
----------------------------------
Name: Patrick J. Rounds
Title: Vice President
By: /s/ Jack R. Bentges
----------------------------------
Name: Jack R. Bentges
Title: Senior Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as a Bank
By: /s/ Noreen St. Lawrence
----------------------------------
Name: Noreen St. Lawrence
Title: Asst. Vice President
FIRST UNION NATIONAL BANK, as a
Bank
By: /s/ Scott Santa Cruz
----------------------------------
Name: Scott Santa Cruz
Title: Vice President
FLEET NATIONAL BANK, as a Bank
By: /s/ Howard J. Diamond
----------------------------------
Name: Howard J. Diamond
Title: Asst. Vice President
ARCHIMEDES FUNDING, L.L.C.,
as a Bank
By: ING Capital Advisors, Inc.,
as Collateral Manager
By:
----------------------------------
Name: Jane M. Nelson
Title: Senior Vice President
14
RIGGS BANK N.A., as a Bank
By: /s/ Ana G. Tejblum
----------------------------------
Name: Ana G. Tejblum
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION,
as a Bank
By: /s/ Peter L. Skavla
----------------------------------
Name: Peter L. Skavla
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.,
As a Bank
By: TCW Asset Management Company,
Its Investment Manager
By:
----------------------------------
Name:
Title:
WELLS FARGO BANK, N.A., as a Bank
By: /s/ Dana D. Cagle
----------------------------------
Name: Dana D. Cagle
Title: Vice President
15
ML CLO XV PILGRIM AMERICA
(CAYMAN) LTD., as Assignee
By: Pilgrim America Investments,
Inc., as its Investment
Manager
By: /s/ Robert L. Wilson
----------------------------------
Name: Robert L. Wilson
Title: Vice President
SENIOR DEBT PORTFOLIO, as a Bank
By: Boston Management and Re-
Search, as Investment Advisor
By:
----------------------------------
Name:
Title:
CYPRESS TREE INVESTMENT
MANAGEMENT CO. INC.,
as attorney-in-fact and on
behalf of First American
Financial Life Insurance
Company, Inc., as Portfolio
Manager
By:
----------------------------------
Name:
Title: