AMENDMENT NO. 1
Exhibit 4.13
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"),
XXXXXX MATERIAL HANDLING, INC., a Delaware corporation, as a U.S. Borrower,
MATERIAL HANDLING, LLC, a Delaware limited liability company, as a U.S.
Borrower, XXXXXX 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"), 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 Document 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:
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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."
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"'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."
"'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
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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 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.
* * * * *
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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/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
XXXXXX MATERIAL HANDLING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
MATERIAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
XXXXXX MATERIAL HANDLING LTD.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
MONDEL ULC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
KAVERIT STEEL AND CRANE ULC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
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MHE TECHNOLOGIES, INC.,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PHMH HOLDING COMPANY,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MATERIAL HANDLING EQUIPMENT NEVADA
CORPORATION,
as a Guarantor
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President
CMH MATERIAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
EPH MATERIAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
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HARNISCHFEGER DISTRIBUTION &
SERVICE LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
HPH MATERIAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
XXXXXX MATEIRAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
XXXXXX MECHANICAL HANDLING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
MPH CRANE, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
NPH MATERIAL HANDLING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
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PHME SERVICE, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
SPH CRANE & HOIST, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: VP/Treasurer
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MHE CANADA ULC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
3016117 NOVA SCOTIA ULC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
XXXXXXXXX ULC
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
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BUTTERS ENGINEERING SERVICES
LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
IVERCOE ENGINEERING LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
LOWFILE LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
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HERCULES S.A. DE C.V.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
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CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative
Agent and Collateral Agent
and as a Bank
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
CIBC Inc., as a Bank
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
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/ Xxxxx X. Xxxxxxxx XX
---------------------------
Name: Xxxxx X. Xxxxxxxx XX
Title: Vice President
CREDITANSTALT CORPORATE FINANCE,
Inc., as a Bank
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By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, as a Bank
By: /s/ Xxxxxx St. Xxxxxxxx
---------------------------
Name: Xxxxxx St. Xxxxxxxx
Title: Asst. Vice President
FIRST UNION NATIONAL BANK, as a
Bank
By: /s/ Xxxxx Santa Xxxx
---------------------------
Name: Xxxxx Santa Xxxx
Title: Vice President
FLEET NATIONAL BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Asst. Vice President
ARCHIMEDES FUNDING, L.L.C.,
As a Bank
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President
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XXXXX BANK N.A., as a Bank
By: /s/ Xxx X. Xxxxxxx
---------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION,
as a Bank
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.,
as a Bank
By: TCW Asset Management
Company, Its Investment Mgr.
By:
---------------------------
Name:
Title:
XXXXX FARGO BANK, N.A., as a Bank
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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ML CLO XV PILGRIM AMERICA
(CAYMAN) LTD., as Assignee
By: Pilgrim America Invest-
ments, Inc., as its
Investment Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
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:
