AMENDMENT NO. 3 and Waiver (the
"Amendment") dated as of January 31, 2000 to
the Credit Agreement dated as of March 30,
1998 (as the same has been, or may hereafter
be, amended, amended and restated,
supplemented or otherwise modified, renewed
or replaced from time to time, the "Credit
Agreement"), among (i) MMH HOLDINGS, INC., a
Delaware corporation ("Holdings"), (ii)
XXXXXX MATERIAL HANDLING, INC., a Delaware
corporation (the "Company"), (iii) XXXXXX
MATERIAL HANDLING, LLC (formerly known as
Material Handling, LLC), a Delaware limited
liability company, (iv) XXXXXX MATERIAL
HANDLING EQUIPMENT LIMITED (formerly known
as Xxxxxx Material Handling, Ltd.), a
company organized under the laws of England
and Wales, (v) KAVERIT STEEL AND CRANE ULC,
an unlimited liability company organized
under the laws of Nova Scotia, (vi) the
Banks referred to therein, (vii) the New
York branch of CREDIT AGRICOLE INDOSUEZ, as
syndication agent for the Banks, (viii)
BANKBOSTON, N.A., as documentation agent for
the Banks and (ix) CANADIAN IMPERIAL BANK OF
COMMERCE, as administrative agent and
collateral agent for the Banks (in such
capacities, the "Administrative Agent").
INTRODUCTORY STATEMENT
WHEREAS, all capitalized terms not otherwise defined in this
Amendment are used herein as defined in the Credit Agreement;
WHEREAS, subject to the terms and conditions hereof, the
Credit Parties, the Banks and the Administrative Agent desire to amend certain
Sections of the Credit Agreement, and the Banks and the Administrative Agent
desire to waive compliance by the Credit Parties with certain Sections of the
Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Credit Agreement. Subject to the
provisions of Section 5 hereof, the Credit Agreement is hereby amended effective
as of the Effective Date (such term being used herein as defined in Section 5
hereof) as follows:
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(A) Section 8.05 of the Credit Agreement is hereby amended by
deleting the last clause thereof and replacing the same with the following
clause, "or any corporate action is taken by Holdings or any Credit Party or any
of its Subsidiaries to authorize any of the foregoing; or"
(B) Section 11.04(b)(A) of the Credit Agreement is hereby
amended by deleting the phrase "and the Company" appearing in the first sentence
thereof.
(C) The Credit Agreement is hereby amended by adding the following section
immediately after Section 11.18 thereof:
11.19 Treatment of Non-Public Information; Voting.
Notwithstanding anything to the contrary contained in this
Credit Agreement, any Bank which has requested that it not
receive material, non-public information concerning the
Borrowers or any of the other Credit Parties and which is
therefore unable or unwilling to vote with respect to an issue
arising under this Credit Agreement will agree to vote and
will be deemed to have voted its Commitment under this Credit
Agreement pro rata in accordance with the percentage of the
Commitments voted in favor of, and the percentage of the
Commitments voted against, any such issue under this Credit
Agreement.
SECTION 2. Waiver. Compliance with the below listed provisions of the
Credit Agreement are hereby waived for the period commencing January 31, 2000 to
and including 5:00 p.m. on March [29], 2000 (the "Waiver Termination Date"):
(i) Section 4.02(c) and the last sentence of
Section 5.11(b) solely in respect of any
Material Adverse Effect pertaining to the
operations, business, financial condition or
prospects of the Company and its Subsidiary
taken as a whole as reflected in the Bank
Group Meeting Presentation, dated January
14, 2000 and the covenant calculations
furnished to the Agent on January 27, 2000;
(ii) the last sentence of Section 5.11(a);
(iii) Section 6.01(a);
(iv) Section 7.10; and
(v) Section 7.13.
; provided, that prior to the Waiver Termination Date, the aggregate outstanding
amount of Revolving Loans, Swingline Loans (including UK Swingline Letters of
Credit) and Letters of Credit shall not exceed the lesser of (x) the Borrowing
Base or (y) an amount equal to $12,000,000 plus the aggregate outstanding amount
of Revolving Loans, Swingline Loans (including UK Swingline Letters of Credit)
and Letters of Credit as of January 28, 2000.
As used herein, the term "Waiver Termination Date" shall mean
5:00 p.m. on March [29], 2000, or such later date as may be agreed upon in
writing by the Administrative Agent and the requisite Banks. Upon the occurrence
of any Event of Default, the Administrative Agent and the Banks shall have all
rights and remedies available to them under the Credit Documents, at law or
otherwise with respect to each Event of Default, which rights and remedies are
hereby expressly reserved. Upon the occurrence of the Waiver Termination Date,
the Borrowers shall be obligated to comply with the covenants set forth in
Sections 6.01(a), 7.10 and 7.13 at the levels set forth in the Credit Agreement
for such date and thereafter as provided in the Credit Agreement.
SECTION 3. Confirmation and Acknowledgment of the Obligations;
Release. Each of the Borrowers and the other Credit Parties hereby confirms and
acknowledges to the Agents and the Banks that it is validly and justly indebted
to the Agents and the Banks for the payment of all Obligations without offset,
defense, cause of action or counterclaim of any kind or nature whatsoever. Each
of the Credit Parties, on its own behalf and on behalf of its successors and
assigns, hereby waives, releases and discharges the Agents and each Bank and all
of the affiliates of the Agents and each Bank, and all of the directors,
officers, employees, attorneys and agents of the Agents, each Bank and such
affiliates, from any and all claims, demands, actions or causes of action (known
and unknown) arising out of or in any way relating to the Credit Documents and
any documents, agreements, dealings or other matters connected with any of the
Credit Documents, in each case to the extent arising (x) on or prior to the date
hereof or (y) out of, or relating to, actions, dealings or matters occurring on
or prior to the date hereof. The waivers, releases, and discharges in this
Section 3 shall be effective regardless of whether the conditions to this
Amendment are satisfied and regardless of any other event that may occur or not
occur after the date hereof.
SECTION 4. Agreement by the Borrowers. The Borrowers hereby
agree to pay all out-of-pocket costs and expenses of each of the Agents and each
of the Banks as contemplated by Section 11.01 of the Credit Agreement.
SECTION 5. Conditions to Effectiveness. The effectiveness of
this Amendment is subject to the satisfaction in full of the following
conditions precedent on or before January 31, 2000 (the first date on whic h all
such conditions have been satisfied being herein referred to as the "Effective
Date"):
(A) the Administrative Agent shall have received executed
counterparts of this Amendment, which, when taken together, bear the signatures
of Holdings, each of the Credit Parties and those Banks required by Section
11.12 of the Credit Agreement; and
(B) the Administrative Agent (for the benefit of each of the
Banks which has executed and delivered counterparts of this Amendment by 5:00 pm
eastern time on January 31, 2000 (each such Bank, an "Executing Bank") shall
have received the following:
(i) an amendment fee in an amount equal to one-tenth of one
percent (1/10%) of each Executing Bank's Commitment;
and
(ii) the payment of all invoiced amounts owing to any of the
Agents and any Bank pursuant to Section 11.01 of the
Credit Agreement after giving effect to Section 4 of
this Amendment; and
(C) the Borrowers shall have complied with all requirements of
Section 6.20(d) and (e) of the Credit Agreement except as such compliance may be
extended by the Agent; and
(D) the Borrowers shall have obtained all consents and waivers
from any Governmental Authority or other Person necessary for the execution,
delivery and performance of this Amendment and any other document or transaction
contemplated by this Amendment; and
(E) no Event of Default (which has not been properly waived in
writing) shall have occurred and then be continuing and no Default or Event of
Default shall occur or be continuing upon the effectiveness of this Amendment
and the Administrative Agent shall have received a certificate of the Borrowers
with respect to the foregoing and the matters set forth in subsection (D) above;
and
(F) all legal matters in connection with this Amendment, the
Credit Documents and/or the Collateral shall be reasonably satisfactory to
Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Administrative Agent.
SECTION 6. Representations and Warranties. Holdings and the
Credit Parties hereby represent and warrant to the Administrative Agent and
Banks that after giving effect to this Amendment (including the waivers
contained in Section 2 hereof):
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are true and correct in all material
respects on and as of the date hereof as if such representations and warranties
had been made on and as of the date hereof (except to the extent such
representations and warranties expressly relate to an earlier date); and
(B) Holdings and the Credit Parties are in compliance with all
the terms and provisions set forth in the Credit Agreement and the other Credit
Documents and no Default or Event of Default has occurred or is continuing under
the Credit Agreement or will occur upon the effectiveness of this Amendment.
SECTION 7. Full Force and Effect. Except as expressly set
forth herein, this Amendment does not constitute a waiver or modification of any
provision of the Credit Agreement or a waiver of any Default or Event of Default
under the Credit Agreement, in either case whether or not known to any of the
Agents or the Banks. Except as expressly amended hereby, the Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof and the Credit Agreement as heretofore amended and as
amended by this Amendment are hereby ratified and confirmed. As used in the
Credit Agreement, the terms "Credit Agreement," "this Agreement," "herein,"
"hereafter," "hereto," "hereof," and words of similar import, shall, unless the
context otherwise requires, mean the Credit Agreement as amended by this
Amendment. References to the terms "Agreement" or "Credit Agreement" appearing
in the Exhibits or Schedules to the Credit Agreement shall, unless the context
otherwise requires, mean the Credit Agreement as amended by this Amendment.
SECTION 8. Miscellaneous.
(A) Should there be a need for further amendments or waivers
with respect to the matters addressed herein or any other matters, requests for
such amendments or waivers shall be evaluated by the Banks when formally
requested, in writing, by the Borrower, and the Banks may deny any such requests
for any reason in their sole discretion.
(B) This Amendment shall constitute a Credit Document.
SECTION 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH
ARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK.
SECTION 10. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one instrument. Signature pages
may be detached from counterpart documents and reassembled to form duplicate
executed originals. Delivery of an executed counterpart of a signature page of
this Amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 11. Expenses. Whether or not this Amendment becomes effective or
the transactions contemplated hereby are consummated, each of the Borrowers
agrees, on a joint and several basis, to pay all out-of-pocket expenses incurred
by the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment and any other documentation contemplated hereby,
including, but not limited to, the fees and disbursements of counsel for the
Administrative Agent.
SECTION 12. Headings. The headings of this Amendment are for the purposes
of reference only and shall not affect the construction of, or be taken into
consideration in interpreting, this Amendment.
SECTION 13. Acknowledgments and Consent
(A) Each Credit Party hereby acknowledges that Mondel ULC has been sold and
is no longer a party to the Credit Agreement.
(B) 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, (i) its obligations under
its Guarantee shall not be impaired or affected and (ii) such Guarantee is, and
shall continue to be, in full force and effect and is hereby confirmed and
ratified in all respects.
(C) Each Guarantor hereby confirms and acknowledges that it is validly and
justly indebted to the Agents and the Banks for the payment of all of the
Obligations which it has guaranteed, without offset, defense, cause of action or
counterclaim of any kind or nature whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first written above.
[signature pages follow]
