EXHIBIT 10(xci)
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First
Amendment") dated as of June 28, 2002, relates to that certain Credit Agreement
dated as of May 9, 2002 (the "Credit Agreement"), among NMHG Holding Co., a
Delaware corporation ("NMHG Holding"), NACCO Materials Handling Group, Inc., a
Delaware corporation ("NMHG"), NMHG Distribution Co., a Delaware corporation and
direct wholly-owned Subsidiary of NMHG Holding ("NMHG Distribution"), 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 (the "Netherlands Borrower";
and together with NMHG Holding, NMHG, NMHG Distribution, 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 (as defined in the Credit Agreement) or otherwise,
Citicorp North America, Inc., a Delaware corporation ("CNAI"), 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"), Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB") and Credit Suisse First Boston
("CSFB") as joint arrangers ("Joint Arrangers") and joint bookrunners ("Joint
Bookrunners"), and CSFB as syndication agent ("Syndication Agent").
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. FIRST AMENDMENT EFFECTIVE DATE AMENDMENTS TO CREDIT
AGREEMENT. Upon the "First Amendment Effective Date" (as defined in Section 4
below), the Credit Agreement is hereby amended as follows:
2.1 AMENDMENTS TO SECTION 1.01. Section 1.01 of
the Credit Agreement is hereby amended as follows:
(a) by amending the definition of
"Eligible Foreign Receivables" by amending and restating
subsection (iv) of such definition in its entirety:
(iv) (A) With respect to Receivables purchased by the UK
Borrower pursuant to the Receivables Sale Agreements or
reconveyed to the UK Borrower by Bank of Scotland, all
actions required by Section 5.01(m)
have been taken, true sale opinions with respect to
such transfers have been delivered to the
satisfaction of the Administrative Agent and the
representations and warranties set forth in
Section 6.01(dd) are true and correct in all
respects, and (B) with respect to the Receivables
purchased by the UK Borrower from the Italian
Receivables Seller pursuant to a Receivables Sale
Agreement, all the relevant notices to the account
debtors, complying with all requirements of Italian
law, have been submitted to a court bailiff for the
purposes of the notification process according to
Italian law, provided that any such Receivable shall
no longer be an Eligible Foreign Receivable if the
notice delivered by the court bailiff has not been
served on the relevant account debtor (as evidenced
in the original notice returned to the Italian
Receivables Seller by the court bailiff), but such
Receivable shall have satisfied this requirement for
eligibility if and when the Italian Receivables
Seller receives notice that a subsequent notice
delivered by the court bailiff has been received by
the relevant account debtor;
(b) by adding the following definition
of "Italian Pledges" in proper alphabetical order:
"Italian Pledges" means any and all Pledge
Agreements, Foreign Security Agreements or other
Security Documents creating a Lien under the laws of
Italy.
(c) by adding the following definition
of "Italian Receivables Seller" in proper alphabetical order:
"Italian Receivables Seller" means NACCO
Materials Handling S.p.A. (f/k/a NACCO Materials
Handling S.R.L.), a joint stock company incorporated
under the laws of Italy, registered with the
Register of Enterprises of Modena under No. 14801.
(d) by adding the following definition
of "NACCO Materials Handling S.R.L." in proper alphabetical
order:
"NACCO Materials Handling S.R.L." means
the Italian Receivables Seller.
2.2 AMENDMENT TO SECTION 6.01. Section 6.01(t)
of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
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(t) Solvency.
(i) After giving effect to (A) the issuance of any
Indebtedness on any date, (B) the making of any Restricted Payment or
payment on any Senior Note on any date, (C) the sale of assets on any
date and (D) the transactions contemplated by the Loan Documents and
the Loans to be made on any date that Loans are requested hereunder and
the disbursement of the proceeds of such Loans pursuant to the
applicable Borrower's instructions, each Borrower and NMHG Holding
together with its Subsidiaries is Solvent.
(ii) To the best knowledge of the UK Borrower, on each
date on which Receivables will be assigned by the Italian Receivables
Seller to the UK Borrower under the terms of the Receivables Sale
Agreement between the Italian Receivables Seller and the UK Borrower,
the Italian Receivables Seller is generally able to pay its liabilities
and has sufficient assets to continue to carry on its business as
conducted or proposed to be conducted and the Italian Receivables
Seller has not been declared bankrupt nor is the subject of any other
insolvency proceedings nor has any application for the commencement of
any such proceedings been filed against it. Notwithstanding Section
14.14, this Section 6.01(t)(ii) will be construed in accordance with
the laws of the Republic of Italy.
2.3 ADDITION OF SECTION 7.14. The following new Section
7.14 of the Credit Agreement is hereby added to Article VII of the Credit
Agreement:
7.14 Solvency of Italian Receivables Seller. Each Borrower
shall notify the Administrative Agent and the Lenders in writing
promptly upon such Borrower's learning that any representation and
warranty given by the UK Borrower in Section 6.01(t)(ii) is false or
misleading in any respect.
2.4 ADDITION OF SECTION 12.09(f). The following new
Section 12.09(f) of the Credit Agreement is hereby added to Article XII of
the Credit Agreement:
(f) Italian Pledges. For the purpose of the Italian
Pledges only, in connection with the Obligations of each Borrower
towards any Obligee, each of the parties to this Agreement agrees that
CNAI shall, to the extent CNAI is not a creditor itself in respect of
such Obligations, be a "joint and several co-creditor" with such
Obligee in respect of such Obligations. Accordingly, CNAI shall be
entitled to demand as a creditor performance in full of such
Obligations by the relevant Borrower owing the same, whereby
satisfaction of such Obligations owed to one creditor (either CNAI or
the relevant Obligee) shall release such Borrower from its obligations
to the other creditor.
3. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent
and warrant to each Lender, each Issuing Bank and the Administrative Agent that
(a) each of the statements set forth in Section 6.01 of the Credit Agreement are
true, correct and complete on and as of the First Amendment Effective Date as
though made to each Lender, each Issuing Bank
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and the Administrative Agent on and as of such date and (b) as of the First
Amendment Effective Date, no Event of Default or Default has occurred and is
continuing.
4. FIRST AMENDMENT EFFECTIVE DATE. This First Amendment shall
become effective as of the date first above written (the "First Amendment
Effective Date") upon the satisfaction of the following conditions:
4.1 The Administrative Agent shall have received
counterparts hereof (with sufficient copies for each Lender), executed by
the Borrowers, the Administrative Agent and the Requisite Lenders; and
4.2 The Administrative Agent shall have received a legal
opinion from Xxxxx, Day, Xxxxxx & Xxxxx, counsel to the Borrowers, in form
and substance satisfactory to the Administrative Agent, as to corporate
matters, non-contravention and as to enforceability of this First Amendment
and the Credit Agreement as amended by this First Amendment.
5. MISCELLANEOUS. This First Amendment is a Loan Document. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof. Except to the extent specifically amended
or modified hereby, the provisions of the Credit Agreement shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or Issuing Bank under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents. The Credit Agreement, as
specifically amended by this First Amendment, is and shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed.
6. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts which together shall constitute one instrument.
7. GOVERNING LAW. THIS FIRST AMENDMENT, AND ALL ISSUES RELATING
TO THIS FIRST AMENDMENT, INCLUDING THE VALIDITY, ENFORCEABILITY, INTERPRETATION
OR CONSTRUCTION OF THIS FIRST 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 Requisite
Lenders and the Borrowers have caused this First 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
NMHG DISTRIBUTION CO.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
NACCO MATERIALS HANDLING LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
CITICORP USA, INC., as a Domestic Lender
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
CITIBANK, N.A., as a Multicurrency Lender
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
FOOTHILL CAPITAL CORPORATION, as a Domestic
Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE INC., as a
Domestic Lender
By: /s/ Xxxxxx X. Xxx
-------------------------------
Name: Xxxxxx X. Xxx
Title: President/Chief Executive Officer
CREDIT SUISSE FIRST BOSTON, as a
Domestic Lender
By: /s/ Xxxxxxx Xxxxx /s/ Xxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx Xxx Xxxxx
Title: Associate Director
CREDIT SUISSE FIRST BOSTON, as a
Multicurrency Lender
By: /s/ Xxxxxxx Xxxxx /s/ Xxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx Xxx Xxxxx
Title: Associate Director
U.S. BANK NATIONAL ASSOCIATION, as a
Domestic Lender
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Multicurrency Lender
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
KEY CORPORATE CAPITAL INC., as a
Domestic Lender
By: /s/ J. Xxxx Xxxxxxxx
---------------------------------
Name: J. Xxxx Xxxxxxxx
Title: Vice President
GMAC BUSINESS CREDIT, LLC, as a Domestic
Lender and a Multicurrency Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
KEY CORPORATE CAPITAL INC., as a
Multicurrency Lender
By: /s/ J. Xxxx Xxxxxxxx
----------------------------------
Name: J. Xxxx Xxxxxxxx
Title: Vice President
STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM, as a Domestic Lender
By: /s/ Xxxxxx XxXxxxxx
----------------------------------
Name: Xxxxxx XxXxxxxx
Title: Portfolio Manager
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Domestic Lender
By:______________________________
Name:
Title:
