Exhibit 4.14
WAIVER
This WAIVER ("Waiver") is made as of March 2, 1999, by and
among MMH HOLDINGS, INC., a Delaware corporation ("Holdings"), MORRIS MATERIAL
HANDLING, INC., a Delaware corporation, as a U.S. Borrower, MORRIS MATERIAL
HANDLING, LLC, a Delaware limited liability company (formerly Material Handling,
LLC), 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, as amended as of
August 28, 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 Borrowers have requested a waiver of certain
outstanding Defaults through June 14, 1999, and the Required Banks are willing
to grant such waiver on the terms and conditions set forth herein;
NOW, therefore, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. WAIVERS TO THE CREDIT AGREEMENT
Compliance with (i) each of Sections 7.12(a) (Total Leverage
Ratio), 7.12(b) (Credit Agreement Leverage Ratio) and 7.13 (Minimum Consolidated
EBITDA) for the Test Period ending
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January 31, 1999 and (ii) each of Sections 7.10 (Total Interest Coverage Ratio),
7.11 (Fixed Charge Coverage Ratio), 7.12(a) (Total Leverage Ratio), 7.12(b)
(Credit Agreement Leverage Ratio) and 7.13 (Minimum Consolidated EBITDA) for the
Test Period ending April 30, 1999 is hereby waived through June 14, 1999 (the
period from the effective date hereof through such date, the "Waiver Period");
PROVIDED, that during the Waiver Period the conditions set forth in Section 2
hereof are complied with and PROVIDED, FURTHER, that an Event of Default shall
be deemed to have occurred as of June 15, 1999 if the Borrowers are not in
compliance with any of the financial covenants set forth in the Credit Agreement
as of that date.
SECTION 2. CONDITIONS TO WAIVER
2.1 To induce the Required Banks to enter into this Waiver,
the Borrowers and the Guarantors jointly and severally agree as follows:
(a) No Borrower shall give a Notice of Borrowing or otherwise
seek to obtain a Borrowing under the Acquisition Term Loan, the Revolving Loan
or any Swingline Loan or request the issuance of a Letter of Credit, bid bond or
performance bond during the Waiver Period without the prior written consent of
the Administrative Agent and the Required Banks; PROVIDED, that (i) a Borrower
may give a Notice of Borrowing for a Revolving Loan or a Swingline Loan in an
aggregate amount not to exceed the aggregate amount of Revolving Loans and
Swingline Loans repaid during the Waiver Period (including pursuant to clause
(b) of Section 2.1 hereof); and (ii) a Borrower may request the issuance of one
or more Letters of Credit, bid bonds or performance bonds in an aggregate amount
not exceeding $5,000,000 (or the Dollar Equivalent thereof), after giving effect
to such issuance and the issuance of all other requested Letters of Credit, bid
bonds or performance bonds during the Waiver Period; PROVIDED, FURTHER, that
nothing herein shall be construed to impair the operation of Section 1.01(e) of
the Credit Agreement.
(b) The Borrowers shall have made a prepayment of Revolving
Loans in the amount of $18,000,000 on or before March 31, 1999.
(c) The Company shall deliver to the Banks as promptly as
possible (and in no event later than May 25, 1999) a revised business plan, in
form reasonably satisfactory to the Administrative Agent and the Required Banks.
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(d) During the Waiver Period, the Borrower shall not request
an Interest Period with respect to Reserve Adjusted Eurodollar Loans that are in
excess of one month; PROVIDED that an Interest Period with respect to Term Loans
may be a one, two or three month period.
(e) During the Waiver Period, Interest on all Loans shall be
payable monthly in arrears on the last Business Day of each month, beginning
March 31, 1999.
(f) No later than March 31, 1999, the Borrowers shall enter
into cash management arrangements on terms and conditions satisfactory to the
Administrative Agent.
SECTION 3. RATIFICATION OF AGREEMENT
3.1 To induce the Required Banks to enter into this Waiver,
the Borrowers and the Guarantors jointly and severally represent and warrant
that after giving effect to this Waiver 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 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.
3.2 Except as expressly set forth in this Waiver, 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. In the event of inconsistencies
between this Waiver and the Credit Agreement, the terms of this Waiver shall
govern.
SECTION 4. COUNTERPARTS; EFFECTIVENESS
This Waiver 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 Waiver shall become
effective as of the date hereof upon (i) the execution of the counterparts
hereof by the Borrowers, the Guarantors and the Required Banks and (ii) the
payment by the Borrowers to the Administrative Agent, for the benefit of each
Bank which executes this Waiver, a waiver fee equal to 1/4% of such Bank's
Commitment.
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SECTION 5. GOVERNING LAW
THIS WAIVER 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 6. ACKNOWLEDGEMENT AND CONSENT
BY THE GUARANTORS
Each Guarantor hereby acknowledges that it has read this
Waiver and consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Waiver, 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.
* * * * *
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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: Vice Pres./Treasurer
MORRIS MATERIAL HANDLING, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice President
MORRIS 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
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KAVERIT STEEL AND CRANE ULC
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: President
MHE TECHNOLOGIES, INC.
By: /s/ Richard F. Klumpp
------------------------------
Name: Richard F. Klumpp
Title: Vice President
PHMH HOLDING COMPANY
By: /s/ Richard F. Klumpp
------------------------------
Name: Richard F. Klumpp
Title: Vice President
MATERIAL HANDLING EQUIPMENT NEVADA
CORPORATION
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Treasurer
CMH MATERIAL HANDLING, LLC
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Manager
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EPH MATERIAL HANDLING, LLC
By: /s/ David D. Smith
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Name: David D. Smith
Title: Manager
HARNISCHFEGER 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
MERWIN, 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: Vice Pres./Treasurer
MPH CRANE, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
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NPH MATERIAL HANDLING, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
PHME SERVICE, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
SPH CRANE & HOIST, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
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
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BUTTERS ENGINEERING SERVICES
LIMITED
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Director
INVERCOE 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
MORRIS MATERIAL HANDLING S.A. DE C.V.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Director
BIRMINGHAM CRANE & HOIST, INC.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
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DAJU HOLDINGS LIMITED
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
OVERHEAD CRANE & SERVICE COMPANY LTD.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
OVERHEAD CRANE & SERVICE COMPANY
(SUDBURY) LTD.
By: /s/ David D. Smith
------------------------------
Name: David D. Smith
Title: Vice Pres./Treasurer
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CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative
Agent and Collateral Agent
And as a Bank
By: /s/ E. Lindsay Gordon
------------------------------
Name: E. Lindsay Gordon
Title: Executive Director
CIBC Inc., as a Bank
By: /s/ E. Lindsay Gordon
------------------------------
Name: E. Lindsay Gordon
Title: Executive Director
CREDIT AGRICOLE INDOSUEZ,
as Syndication Agent and
as a Bank
By: /s/
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Name:
Title:
By: /s/
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Name:
Title: Vice President
BANKBOSTON, N.A.
as Documentation Agent and
as a Bank
By: /s/ Cheryl J. Carangelo
------------------------------
Name: Cheryl J. Carangelo
Title: Vice President
ABN-AMRO BANK N.V., as a Bank
By: /s/ Thomas Comfort
------------------------------
Name: Thomas Comfort
Title: Group Vice President
By: /s/ Joann L. Holman
------------------------------
Name: Joann L. Holman
Title: Vice President
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, Inc., as a
Bank
By: /s/ Patrick J. Rounds
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Name: Patrick J. Rounds
Title: Vice President
By: /s/ James F. McCann
------------------------------
Name: James F. McCann
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as a Bank
By: /s/ Deborah Stevens
------------------------------
Name: Deborah Stevens
Title: Authorized Agent
FIRST UNION NATIONAL BANK, as a
Bank
By: /s/ Scott Santa Cruz
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Name: Scott Santa Cruz
Title: Vice President
FLEET NATIONAL BANK, as a Bank
By:
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Name:
Title:
ARCHIMEDES FUNDING, L.L.C.,
As a Bank
By: ING Capital Advisors, Inc.
As Collateral Manager
By: /s/ Jane M. Nelson
------------------------------
Name: Jane M. Nelson
Title: Senior Vice President
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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: /s/ Justin L. Driscoll
------------------------------
Name: Justin L. Driscoll
Title: Senior Vice President
WELLS FARGO BANK, N.A., as a Bank
By: /s/ Dana D. Cagle
------------------------------
Name: Dana D. Cagle
Title: Vice President
ML CLO XV PILGRAIM AMERICA
(CAYMAN) LTD., as Assignee
By: Pilgrim America
Investments, Inc., as its Investment
Manager
By: /s/ Jason T. Groom
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Name: Jason T. Groom
Title: Asst. Vice President
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SENIOR DEBT PORTFOLIO, as a Bank
By: Boston Management and
Research, as Investment Advisor
By: /s/ Scott H. Page
------------------------------
Name: Scott H. Page
Title: Vice President
CYPRESSTREE INVESTMENT
PARTNERS II, LTD.
By: CypressTree Investment
Management Company, Inc.,
as Portfolio Manager.
By: /s/ Philip C. Robbins
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Name: Philip C. Robbins
Title: Principal
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED, as a Bank
By: Indosuez Capital, as
Portfolio Advisor
By: /s/
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Name:
Title: