THIRD AMENDMENT TO AMENDED & RESTATED CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDMENT
TO
AMENDED & RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED & RESTATED CREDIT AGREEMENT (this “Third Amendment”)
dated as of December 15, 2006, relates to that certain Amended and Restated Credit Agreement dated
as of December 19, 2005 (as amended by that certain First Amendment, dated as of March 22, 2006,
that certain Second Amendment dated as of July 21, 2006 and as further 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 (“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”), and Citigroup Global Markets Inc. as sole lead arranger and sole
bookrunner.
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. Third Amendment Effective Date Amendments to Credit Agreement. Upon the “Third
Amendment Effective Date” (as defined in Section 4 below), the Credit Agreement is hereby
amended as follows:
2.1 Amendments to Section 6.01(p) (ERISA Matters). Section 6.01(p) of the Credit
Agreement is hereby amended as follows:
(a) By deleting the sixth sentence of Section 6.01(p) in its entirety and substituting
the following in its stead:
No Borrower or any ERISA Affiliate nor any fiduciary of any Plan
which is not a Multiemployer Plan (i) has engaged in a nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of
the Internal Revenue Code or (ii) has taken or failed to take any
action which would constitute or result in a Termination Event other
than (a) a merger permitted under Section 9.09(b)
(Restrictions on Fundamental Changes), (b) the Reportable Events
described on Schedule 6.01-P(A) attached hereto, (c) a
Reportable Event described in Section 4043(c)(3) of ERISA (decline
in number of participants); (d) a Reportable Event described in
Section 4039(c)(9) of ERISA (change in the members of the controlled
group) to the extent that the Reportable Event relates to an ERISA
Affiliate other than the Borrowers and their Subsidiaries; (e) a
Reportable Event described in Section 4043(c)(10) to the extent that
the Reportable Event result from a liquidation of an ERISA Affiliate
other than the Borrowers and their Subsidiaries; (f) a Reportable
Event described in Section 4043(c)(11) to the extent that the
Reportable Event results from the declaration of an extraordinary
dividend payable to, or an extraordinary stock redemption of, an
ERISA Affiliate other than the Borrowers and their Subsidiaries; or
(g) any other Reportable Event, in each case to the extent such
Reportable Events are not reasonably expected to result in a
liability in excess of $2,000,000 to any Borrower or any ERISA
Affiliate.
(b) By deleting the final sentence of Section 6.01(p) in its entirety and substituting
the following in its stead:
As of the Third Amendment Effective Date, each Borrower has given to
the Administrative Agent copies of all of the following: each
Benefit Plan and related trust agreement (including all amendments
to such Plan and trust) in existence or committed to as of the Third
Amendment Effective Date and in respect of which any Borrower or any
ERISA Affiliate is currently an “employer” as defined in section
3(5) of ERISA, and the most recent actuarial report, determination
letter issued by the IRS and Form 5500 filed in respect of each such
Benefit Plan in existence; a listing of all of the Multiemployer
Plans currently contributed to by any Borrower or any ERISA
Affiliate with the aggregate amount of the most recent annual
contributions required to be made by the Borrowers and all ERISA
Affiliates to each such Multiemployer Plan, any information which
has been provided to any Borrower or an ERISA Affiliate regarding
withdrawal liability under any Multiemployer Plan and the collective
bargaining agreement pursuant to which such contribution is required
to be made; and as to each employee welfare benefit plan within the
meaning of Section 3(1) of ERISA which provides benefits to
employees of any Borrower or any Borrower Subsidiary after
termination of employment other than as required by Section 601 of
ERISA, the plan document (or, if no plan document is available, a
written description of the benefits provided under such plan), the
actuarial report for such plan (if any), the aggregate amount of the
most recent annual payments made to, or on behalf of, terminated
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employees under each such plan, and any information about funding to
provide for such welfare benefits.
2.2 Amendments to Section 6.01(q) (Foreign Employee Benefit Plan Matters). Section
6.01(q) of the Credit Agreement is hereby amended by deleting the fourth sentence thereof and
substituting the following in its stead:
Contributions to such Foreign Pension Plan are being made at the
rate recommended by actuarial advice to eliminate any funding
deficits disclosed in such valuation over no more than a 14 year
period. No Borrower or Borrower Subsidiary, or trustee has taken nor
will take any action which would materially increase any such
deficit, unless compelled to do so in compliance with applicable
legislation.
2.3 Amendments to Section 7.06 (ERISA and Analogous Notices). Section 7.06 of the
Credit Agreement is hereby amended by adding the following new Subsections to the end thereof:
| (m) | within ten (10) Business Days after any Borrower or any Borrower Subsidiary knows or has reason to know of the adoption of any new employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA, a copy of such plan and a description of the projected benefit obligations thereunder; | ||
| (n) | within three (3) Business Days after receipt by any Borrower or Borrower Subsidiary of any valuation report for any Foreign Pension Plan with a defined benefit element not wholly covered by insurance maintained or contributed to by any Borrower or Borrower Subsidiary, a copy of such report; | ||
| (o) | within three (3) Business Days after the adoption of a new collective bargaining agreement covering any employees of any Borrower or Borrower Subsidiary, a copy thereof; | ||
| (p) | within three (3) Business Days after any Borrower or any Borrower Subsidiary knows or has reason to know of the adoption of any new agreement listed in Section 6.01(r)(ii), a copy thereof and a description of the projected liabilities thereunder.” |
2.4 Addition of Section 7.16. Article VII of the Credit Agreement is hereby amended
to add the following new Section 7.16 thereto:
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7.16. Update of Certain Schedules. If any of the
information or disclosures provided on any of Schedules 6.01-A,
6.01-C, 6.01-P, 6.01-R, 6.01-V, 6.01-W, 6.01-Y, 6.01-Z or
6.01-CC, attached hereto as of the Closing Date become outdated
or incorrect in any material respect, the Borrowers shall deliver to
the Administrative Agent and the Lenders as part of the Compliance
Certificate required pursuant to Section 7.01(e)(ii) (or
more frequently in the Borrowers’ reasonable judgment or upon the
request of the Administrative Agent) such revision or updates to
such Schedule(s) as may be necessary or appropriate to update or
correct such Schedule(s), which revisions shall be effective from
the date accepted in writing by the Administrative Agent, such
acceptance not to be unreasonably withheld; provided, that
(i) no such revisions or updates to any such Schedule(s) shall be
deemed to have cured any breach of warranty or misrepresentation
occurring prior to the delivery of such revision or update by reason
of the inaccuracy or incompleteness of any such Schedule(s) at the
time such warranty or representation previously was made or deemed
to be made and (ii) such Schedule(s) may only be updated to the
extent that such related actions disclosed are otherwise not
prohibited by the Credit Agreement and other Loan Documents prior to
such Schedule being revised or updated (for example, without
limitation, Schedule 6.01-A may only be modified to reflect
events not prohibited by Section 9.13, Schedule
6.01-Z may only be modified as permitted by Section
3.06).
3. 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 Third 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 Third Amendment
Effective Date, no Event of Default or Default has occurred and is continuing.
4. Third Amendment Effective Date. This Third Amendment shall become effective as of
the date first above written (the “Third Amendment Effective Date”) upon the satisfaction
of the following conditions:
4.1 The Administrative Agent shall have received counterparts hereof executed by the
Borrowers, the Administrative Agent and each Lender;
4.2 Each of the representations and warranties contained in this Third Amendment shall be true
and correct in all material respects on and as of the Third Amendment Effective Date;
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4.3 As of the Third Amendment Effective Date, no Event of Default or Default shall have
occurred and be continuing; and
4.4 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 Third Amendment, and all
other outstanding fees and expenses incurred prior to the Third Amendment Effective Date, in each
case which are payable under Section 14.02 of the Credit Agreement.
5. Miscellaneous.
5.1 This Third Amendment is a Loan Document. The headings herein are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.
5.2 On and after the Third 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.
5.3 The execution, delivery and effectiveness of this Third 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.
6. Counterparts; Facsimile Delivery. This Third 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 Third Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
7. GOVERNING LAW. THIS THIRD AMENDMENT, AND ALL ISSUES RELATING TO THIS THIRD
AMENDMENT, INCLUDING THE VALIDITY, ENFORCEABILITY, INTERPRETATION OR CONSTRUCTION OF THIS THIRD
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 follow]
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IN WITNESS WHEREOF, the Administrative Agent, the Issuing Bank, the Requisite Lenders and the
Borrowers have caused this Third Amendment to be executed by their respective officers thereunto
duly authorized as of the date first above written.
| NMHG HOLDING CO. | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Treasurer | ||||
| NACCO MATERIALS HANDLING GROUP, INC. | ||||
By: |
/s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Treasurer | ||||
| NACCO MATERIALS HANDLING LIMITED | ||||
By: |
/s/ Xxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxx | ||||
| Title: Vice President and Secretary | ||||
| NACCO MATERIALS HANDLING B.V. | ||||
| By: NACCO MATERIALS HANDLING GROUP, LTD., its Managing Director |
||||
By: |
/s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Director | ||||
| CITICORP NORTH AMERICA, INC., as Administrative Agent, as Issuing Bank, as Swing Loan Bank and as a Domestic Lender | ||||
By: |
/s/ Miles X. XxXxxxx | |||
| Name: Miles X. XxXxxxx | ||||
| Title: Vice President and Director | ||||
| CITIBANK INTERNATIONAL PLC, as Multicurrency Lender and as Overdraft Line Bank | ||||
By: |
/s/ Miles X. XxXxxxx | |||
| Name Miles X. XxXxxxx | ||||
| Title: Vice President and Director | ||||
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Domestic Lender |
||||
By: |
/s/ Xxxxxx X. Rzzo | |||
| Name: Xxxxxx X. Rzzo | ||||
| Title: Duly Authorized Signatory | ||||
| XXXXX FARGO FOOTHILL, INC., as a Domestic Lender | ||||
By: |
/s/ Xxx Futong | |||
| Name: Xxx Futong | ||||
| Title: AVP | ||||
| U.S. BANK NATIONAL ASSOCIATION, as a Domestic Lender | ||||
By: |
/s/ Xxxxx X. Xxxx | |||
| Name: Xxxxx X. Xxxx | ||||
| Title: Senior Vice President | ||||
| KEY CORPORATE CAPITAL INC., as a Domestic Lender | ||||
By: |
/s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
| Title: Vice President | ||||
| ING Capital LLC, as a Domestic Lender | ||||
By: |
/s/ W. C. Berging | |||
| Name: W. C. Berging | ||||
| Title: Managing Director | ||||
| BANK OF AMERICA, N.A., as a Domestic Lender | ||||
By: |
/s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx | ||||
| Title: Senior Vice President | ||||
