WAIVER NO. 3
This WAIVER NO. 3 ("Waiver No. 3") is made as of June 30, 1999
among MMH HOLDINGS, INC., a Delaware corporation ("Holdings"), its subsidiaries
named on the signature pages hereto, and the Agents and the lending institutions
named on the signature pages hereto. This Waiver No. 3 is made with reference to
that certain Waiver dated as of March 2, 1999 (the "March Waiver") and that
certain Waiver dated as of June 14, 1999 (the "June Waiver" and, together with
the March Waiver, the "Waivers") relating 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, the 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, the Agents and the Banks entered
into the Credit Agreement; and
WHEREAS, the Borrowers have been granted the Waivers relating
to certain outstanding Defaults through June 30, 1999 and have requested an
extension of the Waivers through August 2, 1999, and the Required Banks are
willing to grant such waiver extension 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
The definition of Waiver Period set forth in the Waivers is
hereby amended to extend the period through August 2, 1999 and all references in
the Waivers to the Waiver Period shall be deemed to be references to the Waiver
Period as extended hereby; provided, that during the Waiver Period, as extended,
the conditions set forth in Section 2 of the March Waiver are complied with and
provided, further, that an Event of Default shall be deemed to have occurred as
of August 3, 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. RATIFICATION
2.1 To induce the Required Banks to enter into this Waiver No.
3, the Borrowers and the Guarantors jointly and severally represent and warrant
that after giving effect to this Waiver No. 3 no violation of the terms of the
Credit Agreement exists 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 Waiver No. 3 and the
Waivers, 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 No. 3, together with the Waivers, and the
Credit Agreement, the terms of this Waiver No. 3, together with the Waivers,
shall govern.
2.3 Each Borrower 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.
SECTION 3. CONSENT TO AGREEMENT IN PRINCIPLE TO AMEND
Holdings, the Borrowers, the Agents and the Required Banks
hereby agree to enter into an amendment to the Credit Agreement on substantially
the terms and conditions set forth on Exhibit A hereto subject to, among other
things, the satisfaction of conditions precedent thereto and the preparation,
execution and delivery of satisfactory legal documentation.
SECTION 4. COUNTERPARTS; EFFECTIVENESS
This Waiver No. 3 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 No. 3 shall become
effective as of the date hereof upon the execution of the counterparts hereof by
Holdings, the Borrowers, the Guarantors and the Required Banks. Delivery of an
executed counterpart of a signature page of this Waiver No. 3 by telecopy shall
be effective as delivery of a manually executed counterpart of this Waiver No.
3.
SECTION 5. GOVERNING LAW
THIS WAIVER NO. 3 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
6.1 Each Guarantor hereby acknowledges that it has read this
Waiver No. 3 and consents to the terms hereof and further confirms and agrees
that, notwithstanding the effectiveness of this Waiver No. 3, 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.
6.2 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.
[SIGNATURE PAGES FOLLOW]
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: Vice Pres./Treasurer
XXXXXX MATERIAL HANDLING, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX MATERIAL HANDLING, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Manager
XXXXXX MATERIAL HANDLING
EQUIPMENT 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
MHE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
PHMH HOLDING COMPANY
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
MATERIAL HANDLING EQUIPMENT NEVADA CORPORATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
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
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, 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: Vice Pres./Treasurer
MPH CRANE, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
NPH MATERIAL HANDLING, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
PHME SERVICE, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
SPH CRANE & HOIST, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
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
BUTTERS ENGINEERING SERVICES LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
INVERCOE ENGINEERING LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
LOWFILE LIMITED
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
RED CROWN ULC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
MMH (HOLDINGS) LIMITED
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
XXXXXX MATERIAL HANDLING LIMITED
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
MMH INTERNATIONAL LIMITED
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
XXXXXX MATERIAL HANDLING MEXICO
S.A. DE C.V.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
BIRMINGHAM CRANE & HOIST, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
ARIZONA MOTOR AND CONTROL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
DAJU HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
OVERHEAD CRANE SERVICE & SUPPLY COMPANY LTD.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
OVERHEAD CRANE SERVICE AND SUPPLY COMPANY (SUDBURY) LTD.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pres./Treasurer
CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative
Agent and Collateral Agent And as a Bank
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Executive Director
CIBC Inc., as a Bank
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Executive Director
CREDIT AGRICOLE INDOSUEZ,
as Syndication Agent and as a Bank
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
as Documentation Agent and as a Bank
By: /s/ Xxxxx X.X. Alto o
Name: Xxxxx E.C. Alto
Title: Vice President
ABN-AMRO BANK N.V., as a Bank
By:
Name:
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, Inc., as a
Bank
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/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Agent
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:
Name:
Title:
ARCHIMEDES FUNDING, L.L.C., As a Bank
By: ING Capital Advisors, Inc.
As Collateral Manager
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: Managing Director
XXXXX BANK N.A., as a Bank
By:
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION, As a Bank
By:
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P., as a Bank
By: TCW Asset Management
Company, Its Investment Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as a Bank
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD., as a Bank
By: Pilgrim America
Investments, Inc., as its Investment Manager
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Asst. Vice President
SENIOR DEBT PORTFOLIO, as a Bank
By: Boston Management and
Research, as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
Name: Payson X. Xxxxxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT
PARTNERS II, LTD., as a Bank
By: CypressTree Investment
Management Company, Inc.,
as Portfolio Manager.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Principal
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED, as a Bank
By: Indosuez Capital, as
Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
