EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of MAY 9, 2002
among
NMHG HOLDING CO.
NMHG DISTRIBUTION CO.
NACCO MATERIALS HANDLING GROUP, INC.
NACCO MATERIALS HANDLING LIMITED
and
NACCO MATERIALS HANDLING B.V.
as Borrowers
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
THE FINANCIAL INSTITUTION FROM TIME TO TIME
PARTY HERETO AS AN ISSUING BANK
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
and
CREDIT SUISSE FIRST BOSTON
as Joint Arrangers and as Joint Bookrunners
and
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
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ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms...............................................................................1
1.02. Computation of Time Periods........................................................................52
1.03. Accounting Terms...................................................................................53
1.04. Other Definitional Provisions......................................................................53
1.05. Other Terms........................................................................................53
1.06. Payments by the Borrowers..........................................................................53
ARTICLE II
AMOUNTS AND TERMS OF LOANS AND LETTERS OF CREDIT
2.01. The Revolving Credit Facility......................................................................53
2.02. Letters of Credit..................................................................................60
2.03. Participations in Credit Facilities................................................................67
2.04. Evidence of Indebtedness...........................................................................69
2.05. Authorized Officers and Administrative Agents......................................................69
2.06. Booking of Loans and Letters of Credit.............................................................70
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in and Reallocations of Commitments........................................70
3.02. Payments...........................................................................................74
3.03. Pro Rata Shares Adjustment.........................................................................79
3.04. Taxes..............................................................................................80
3.05. Increased Capital..................................................................................83
3.06. Cash Management and Concentration Accounts.........................................................84
ARTICLE IV
INTEREST AND FEES
4.01. Interest on the Loans and Other Obligations........................................................88
4.02. Special Provisions Governing Fixed Rate Loans......................................................91
4.03. Fees...............................................................................................94
ARTICLE V
CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. Conditions Precedent to Effectiveness..............................................................95
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5.02. Conditions Precedent to Revolving Loans, Swing Loans, Overdraft Loans and
Letters of Credit..................................................................................99
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers...................................................100
ARTICLE VII
REPORTING COVENANTS
7.01. Financial Statements..............................................................................111
7.02. Events of Default.................................................................................114
7.03. Lawsuits..........................................................................................115
7.04. Insurance.........................................................................................115
7.05. Borrowing Base Certificate........................................................................115
7.06. ERISA and Analogous Notices.......................................................................116
7.07. Environmental Notices.............................................................................117
7.08. Labor Matters.....................................................................................118
7.09. Public Filings and Reports........................................................................119
7.10. Bank Account Information..........................................................................119
7.11. Senior Notes; Debt................................................................................119
7.12. Other Reports.....................................................................................119
7.13. Other Information.................................................................................119
ARTICLE VIII
AFFIRMATIVE COVENANTS
8.01. Corporate Existence, Etc..........................................................................120
8.02. Corporate Powers; Conduct of Business, Etc........................................................120
8.03. Compliance with Laws, Etc.........................................................................120
8.04. Payment of Taxes and Claims; Tax Consolidation....................................................120
8.05. Insurance.........................................................................................121
8.06. Inspection of Property; Books and Records; Discussions............................................121
8.07. ERISA Compliance..................................................................................122
8.08. Foreign Employee Benefit Plan Compliance..........................................................122
8.09. Maintenance of Property...........................................................................122
8.10. Further Assurances; Additional Collateral.........................................................123
8.11. Landlord and Bailee Waivers.......................................................................125
8.12. Environmental Compliance..........................................................................125
8.13. Insurance and Condemnation Proceeds...............................................................125
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ARTICLE IX
NEGATIVE COVENANTS
9.01. Indebtedness......................................................................................126
9.02. Sales of Assets...................................................................................129
9.03. Liens.............................................................................................130
9.04. Investments.......................................................................................131
9.05. Accommodation Obligations.........................................................................132
9.06. Restricted Payments...............................................................................133
9.07. Conduct of Business; Subsidiaries; Acquisitions...................................................134
9.08. Transactions with Shareholders and Affiliates.....................................................136
9.09. Restriction on Fundamental Changes................................................................137
9.10. Sale and Leaseback Transactions; Operating Leases.................................................137
9.11. Margin Regulations; Securities Laws...............................................................138
9.12. ERISA.............................................................................................138
9.13. Constituent Documents.............................................................................139
9.14. Fiscal Year.......................................................................................139
9.15. Cancellation of Debt; Prepayment of Indebtedness; Certain Amendments..............................139
9.16. Environmental Matters.............................................................................139
9.17. Cash Management...................................................................................139
9.18. No Restrictions on Subsidiary Dividends...........................................................140
ARTICLE X
FINANCIAL COVENANTS
10.01. Excess Availability...............................................................................140
10.02. Maximum Leverage Ratio............................................................................140
10.03. Minimum Fixed Charge Coverage Ratio...............................................................140
10.04. Maximum Capital Expenditures......................................................................141
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. Events of Default.................................................................................142
11.02. Rights and Remedies...............................................................................145
11.03. Cash Collateral...................................................................................146
11.04. License for Use of Software and Other Intellectual Property.......................................147
ARTICLE XII
THE ADMINISTRATIVE AGENT
12.01. Appointment.......................................................................................147
12.02. Nature of Duties..................................................................................148
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12.03. Rights, Exculpation, Etc..........................................................................149
12.04. Reliance..........................................................................................149
12.05. Indemnification...................................................................................150
12.06. CNAI Individually.................................................................................150
12.07. Successor Administrative Agents; Resignation of Administrative Agents.............................150
12.08. Relations Among Lenders...........................................................................151
12.09. Concerning the Collateral and the Loan Documents..................................................151
ARTICLE XIII
CO-BORROWER PROVISIONS
13.01. Domestic Borrowers................................................................................154
13.02. Multicurrency Borrowers...........................................................................154
13.03. Separate Actions..................................................................................154
13.04. Obligations Absolute and Unconditional............................................................155
13.05. Waivers and Acknowledgements......................................................................156
13.06. Contribution Among Borrowers......................................................................156
13.07. Subrogation.......................................................................................157
13.08. Subordination.....................................................................................157
ARTICLE XIV
MISCELLANEOUS
14.01. Lender Assignments and Participations.............................................................159
14.02. Expenses..........................................................................................162
14.03. Indemnity.........................................................................................163
14.04. Change in Accounting Principles...................................................................164
14.05. Setoff............................................................................................164
14.06. Ratable Sharing...................................................................................164
14.07. Amendments and Waivers............................................................................165
14.08. Notices...........................................................................................167
14.09. Survival of Warranties and Agreements.............................................................168
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative.............................................169
14.11. Marshaling; Payments Set Aside....................................................................169
14.12. Severability......................................................................................169
14.13. Headings..........................................................................................169
14.14. Governing Law.....................................................................................169
14.15. Limitation of Liability...........................................................................169
14.16. Successors and Assigns............................................................................170
14.17. Certain Consents and Waivers......................................................................170
14.18. Counterparts; Effectiveness; Inconsistencies......................................................172
14.19. Limitation on Agreements..........................................................................172
14.20. Confidentiality...................................................................................172
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14.21. Currency Conversions..............................................................................173
14.22. Entire Agreement..................................................................................173
14.23. Advice of Counsel.................................................................................174
14.24. Joint Arrangers, Joint Bookrunners and Syndication Agent..........................................174
14.25. Termination of the Multicurrency Facility.........................................................174
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EXHIBITS
Exhibit A -- Applicable Interest Rate Margins and Fee Rates
Exhibit B -- Form of Assignment and Acceptance
Exhibit C-1 -- Form of Borrowing Base Certificate (Domestic Facility)
Exhibit C-2 -- Form of Borrowing Base Certificate (Multicurrency Facility)
Exhibit D-1 -- Form of Collateral Access Agreement (Landlord)
Exhibit D-2 -- Form of Collateral Access Agreement (Bailee)
Exhibit E -- Form of Collection Account Agreement
Exhibit F -- Credit and Collection Policies
Exhibit G-1 -- Form of Domestic Borrower Guaranty
Exhibit G-2 -- Form of Multicurrency Borrower Guaranty
Exhibit G-3 -- Form of Foreign Guaranty (Multicurrency Obligations)
Exhibit H -- Form of Domestic Security Agreement
Exhibit I -- Form of Foreign Working Capital Guaranty
Exhibit J -- Initial Projections
Exhibit K-1 -- Form of Notice of Borrowing (Domestic Facility)
Exhibit K-2 -- Form of Notice of Borrowing (Multicurrency Facility)
Exhibit L -- Form of Notice of Continuation/Conversion
Exhibit M-1 -- Form of Notice of Letter of Credit Issuance (Domestic Facility)
Exhibit M-2 -- Form of Notice of Letter of Credit Issuance (Multicurrency
Facility)
Exhibit N -- Form of Officer's Certificate
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Exhibit O -- Form of Pledge Agreement (Domestic)
Exhibit P -- Pro Forma
Exhibit Q-1 -- Form of Domestic Loan Note
Exhibit Q-2 -- Form of Multicurrency Loan Note
Exhibit Q-3 -- Form of Swing Loan Note
Exhibit R -- Form of Trademark Security Agreement
Exhibit S -- List of Closing Documents
Exhibit T -- Form of Compliance Certificate
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SCHEDULES
Schedule 1.01.1 -- Commitments
Schedule 1.01.2 -- Guarantors
Schedule 1.01.3 -- Intentionally Omitted
Schedule 1.01.4 -- Permitted Existing Accommodation Obligations
Schedule 1.01.5 -- Permitted Existing Indebtedness
Schedule 1.01.6 -- Permitted Existing Investments
Schedule 1.01.7 -- Permitted Existing Liens
Schedule 1.01.8 -- Refinanced Indebtedness
Schedule 6.01-A -- Constituent Documents
Schedule 6.01-C -- Authorized, Issued and Outstanding Capital Stock; Subsidiaries
Schedule 6.01-I -- Litigation; Adverse Effects
Schedule 6.01-O -- Environmental Matters
Schedule 6.01-P -- ERISA Matters
Schedule 6.01-R -- Labor Matters
Schedule 6.01-U -- Intellectual Property & Permits
Schedule 6.01-V -- Assets and Properties
Schedule 6.01-W -- Insurance
Schedule 6.01-Y -- Transactions with Affiliates
Schedule 6.01-Z -- Collection Account Banks; Bank Accounts
Schedule 6.01-CC -- Compensation Increases
Schedule 9.02-B -- Sale of Assets
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Schedule 9.04 -- Investments in Disbursement Accounts
Schedule 9.10 -- Sale and Leaseback Transactions
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EXECUTION COPY
CREDIT AGREEMENT
This Credit Agreement dated as of May 9, 2002 (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
"AGREEMENT") is entered into 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 hereto as Lenders, whether by
execution of this Agreement or an Assignment and Acceptance, the financial
institutions from time to time party hereto as Issuing Bank, whether by
execution of this Agreement or an Assignment and Acceptance or otherwise,
Citicorp North America, Inc., a Delaware corporation ("CNAI"), in its capacity
as administrative agent for the Lenders and the Issuing Bank hereunder (with its
successors and permitted assigns in such capacity, the "ADMINISTRATIVE AGENT"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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").
ARTICLE I
DEFINITIONS
1.01. CERTAIN DEFINED TERMS. In addition to the terms defined
above, the following terms used in this Agreement shall have the following
meanings, applicable both to the singular and the plural forms of the terms
defined:
"ACCOMMODATION OBLIGATION" means any Contractual Obligation,
contingent or otherwise, of one Person with respect to any Indebtedness,
obligation or liability of another, if the primary purpose or intent thereof by
the Person incurring the Accommodation Obligation is to provide assurance to the
obligee of such Indebtedness, obligation or liability of another that such
Indebtedness, obligation or liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders thereof
will be protected (in whole or in part) against loss in respect thereof
including, without limitation, direct and indirect guarantees, endorsements
(except for collection or deposit in the ordinary course of business), notes
co-made or discounted, recourse agreements, take-or-pay agreements, keep-well
agreements, agreements to purchase or repurchase such Indebtedness, obligation
or liability or any security therefor or to provide funds for the payment or
discharge thereof, agreements to maintain solvency, assets, level of income, or
other financial condition, and agreements to make payment other than for value
received. The amount of any Accommodation Obligation shall be equal to the
lesser of (a) the principal amount payable under such Accommodation Obligation
(if quantifiable) and (b) the portion of the obligation so guaranteed or
otherwise supported.
"ACCOUNT" is defined in SECTION 2.01(c)(i).
"ACCOUNTING CHANGES" means, with respect to any Person,
changes in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion of the Financial Accounting Standards Board
or the American Institute of Certified Public Accountants (or any successor
thereto or any agency with similar functions).
"ACCOUNTING FIRM" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or such other firm of
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent.
"ACQUISITION" is defined in SECTION 9.04(f).
"ADDITIONAL ASSETS" means: (a) any property, plant or
equipment or other tangible assets used in or useful in the operation of a
Related Business, (b) the Capital Stock of a Person that becomes a Borrower
Subsidiary as a result of the acquisition of such Capital Stock by a Borrower or
a Borrower Subsidiary, or (c) Capital Stock constituting a minority interest in
any Person that at such time is a Borrower Subsidiary; provided, however, that
any such Subsidiary described in clause (b) or (c) above is primarily engaged in
a Related Business.
"ADJUSTED EBITDA" means, for any period, the sum, without
duplication, of (a) Consolidated EBITDA and (b) equity advances and capital
contributions to NMHG Holding or any of the other Borrowers made during such
period or within thirty days following the end of such period and specifically
designated for allocation to such period and not in the period in which made,
provided, that no greater than $10,000,000 of such equity advances and capital
contributions may be included in the determination of Adjusted EBITDA during any
four-quarter period.
"ADMINISTRATIVE AGENT" is defined in the preamble.
"ADMINISTRATIVE QUESTIONNAIRE" means an administrative
questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, as applied to any specified Person, any
other Person that, directly or indirectly, controls, is controlled by or is
under common control with, such specified Person and includes each officer or
director or general partner of such Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") as applied to any specified
Person means the possession, directly or indirectly, of the power to vote five
percent (5.0%) or more of the Voting Stock or otherwise to direct or cause the
direction of, the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise. "AFFILIATED" has a
correlative meaning to Affiliate.
"AGREEMENT" is defined in the preamble.
"APPLICABLE FIXED RATE MARGIN", "APPLICABLE FLOATING RATE
MARGIN", "APPLICABLE LETTER OF CREDIT FEE RATE", "APPLICABLE OVERDRAFT RATE
MARGIN", and "APPLICABLE UNUSED COMMITMENT FEE RATE" mean a per annum rate equal
to (a) for the period from the Closing Date until the Rate Change Date (as
defined below) occurring after the timely delivery
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of the Compliance Certificate for the period ending September 30, 2002, pursuant
to SECTION 7.01(c), the respective per annum rates in the row designated "Level
3" on the table set forth on EXHIBIT A attached hereto with respect to each of
the Applicable Fixed Rate Margin, the Applicable Floating Rate Margin, the
Applicable Overdraft Rate Margin, the Applicable Letter of Credit Fee Rate, and
the Applicable Unused Commitment Fee Rate and (b) from and after such Rate
Change Date, if the Leverage Ratio for the applicable period ending on the last
day of the then most recent fiscal quarter (as shown on the Compliance
Certificate delivered pursuant to SECTION 7.01(c)) is within the applicable
range set forth on EXHIBIT A attached hereto, the Applicable Fixed Rate Margin,
the Applicable Floating Rate Margin, the Applicable Letter of Credit Fee Rate,
the Applicable Overdraft Rate Margin and the Applicable Unused Commitment Fee
Rate shall be the respective per annum rates set forth opposite the applicable
range indicated on the table set forth on EXHIBIT A attached hereto. In the
event of the delivery of a Compliance Certificate after September 30, 2002,
showing an increase or decrease in the Leverage Ratio (for the twelve-month
period ending on the last day of a fiscal quarter) which requires a change in
the Applicable Fixed Rate Margin, the Applicable Floating Rate Margin, the
Applicable Letter of Credit Fee Rate, the Applicable Overdraft Rate Margin and
the Applicable Unused Commitment Fee Rate, such changes shall be effective from
the first day of the calendar month immediately following receipt of such
Compliance Certificate (provided that the Compliance Certificate is received by
the Administrative Agent no later than 12:00 p.m. (New York time) at least one
(1) Business Day prior to the first day of such calendar month) until the next
such date on which the Applicable Fixed Rate Margin, the Applicable Floating
Rate Margin, the Applicable Letter of Credit Fee Rate, the Applicable Overdraft
Rate Margin and the Applicable Unused Commitment Fee Rate are subject to change
following the delivery of (or failure to deliver) a Compliance Certificate
showing an increase or decrease in the Leverage Ratio which requires such
changes (any such date on which the Applicable Fixed Rate Margin, the Applicable
Floating Rate Margin, the Applicable Letter of Credit Fee Rate, the Applicable
Overdraft Rate Margin and the Applicable Unused Commitment Fee Rate are subject
to change being a "Rate Change Date"); provided, however, that failure to timely
deliver such Compliance Certificate following the end of any fiscal quarter
shall, in addition to any other remedy provided for in this Agreement, result in
an increase in the Applicable Fixed Rate Margin, the Applicable Floating Rate
Margin, the Applicable Letter of Credit Fee Rate, the Applicable Overdraft Rate
Margin and the Applicable Unused Commitment Fee Rate to the maximum per annum
rates for the applicable period set forth above until the first day of the first
calendar month following the delivery of such Compliance Certificate
demonstrating that such an increase is not required; provided further, however,
the occurrence and continuation of any Event of Default, in addition to any
other remedy provided for in this Agreement, shall result in an increase in the
Applicable Fixed Rate Margin, the Applicable Floating Rate Margin, the
Applicable Letter of Credit Fee Rate, the Applicable Overdraft Rate Margin and
the Applicable Unused Commitment Fee Rate to the maximum per annum rates for the
applicable period set forth above until the first day of the first calendar
month following the date on which such Event of Default is cured or waived in
accordance with SECTION 14.07.
"APPLICABLE LENDING OFFICE" means, with respect to a
particular Lender, its Fixed Rate Lending Office in respect of provisions
relating to Fixed Rate Loans, Overdraft Loans and Multicurrency Loans, and its
Domestic Lending Office in respect of provisions relating to Floating Rate
Loans.
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"APPROVED FUND" means any Fund that (a) is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender, and, (b) together
with all other Affiliated Approved Funds that are Lender assignees hereunder,
have total assets in excess of $200,000,000.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance
in substantially the form of EXHIBIT B attached hereto delivered to the
Administrative Agent in connection with an assignment of a Lender's interest
under this Agreement in accordance with the provisions of SECTION 14.01.
"AUSTRALIAN CREDIT FACILITY" means that certain Guaranteed
Multi Option Facility, dated August 15, 2000, among NACCO Materials Handling
Group Pty Ltd., Citibank and Citibank Limited, as amended, restated,
supplemented or otherwise modified from time to time or as the same may be
refinanced or replaced; provided that such refinancing or replacement, taken as
a whole, is on terms no less favorable to NACCO Materials Handling Group Pty
Ltd. than the terms of the existing Australian Credit Facility prior to such
replacement or refinancing; provided further that if such refinancing or
replacement is in an aggregate principal amount greater than the commitments
under the Australian Credit Facility on the Closing Date, any excess amounts
shall only be permitted as allowed in accordance with SECTION 9.01(q).
"AUSTRALIAN CREDIT FACILITY SUBLIMIT" means, (a) from the
Closing Date through May 31, 2002, the Dollar Equivalent (determined as of the
Closing Date) of the aggregate commitment under the Australian Credit Facility
and (b) after May 31, 2002, with respect to an Australian Credit Facility
provided by a CNAI Affiliate and with respect to any calendar month, an amount
equal to the lesser of (i) the Dollar Equivalent of the aggregate commitment
under such Australian Credit Facility and (ii) that amount equal to (A) the
Dollar Equivalent of the amount designated in writing by NACCO Materials
Handling Group Pty Ltd. to such CNAI Affiliate and the Administrative Agent as
the "Australian Credit Facility Sublimit" at least three (3) Business Days prior
to the first Business Day of such calendar month (as such Dollar Equivalent is
determined on the day of such notice) MULTIPLIED BY (B) one hundred five percent
(105%); provided, that such designated amount may not be less than the
outstanding obligations under such Australian Credit Facility; provided, further
that to the extent a notice is not given as herein provided, the Australian
Credit Facility Sublimit shall be the amount most recently designated in such a
written notice prior to the first Business Day of such calendar month.
"AUSTRALIAN REORGANIZATION" means a transaction or series of
transactions in which an Australian Subsidiary is consolidated or merged with,
or whose Capital Stock is contributed to, another Australian Subsidiary or any
other Subsidiary as agreed by the Administrative Agent and the Borrowers.
"AUSTRALIAN SUBSIDIARIES" means NACCO Materials Handling Group
Pty. Ltd, NMHG Superannuation Programme Pty. Limited, NMHG Employees Super. Fund
Pty Limited, National Fleet Network Pty Limited, NMHG Distribution Pty Limited,
KS ▇▇▇ & Sons Pty Limited, Yale-LTC Industrial Trucks Pty Limited, LTC Forklift
Rentals Pty Limited., and any other Foreign Subsidiaries (a) organized under the
laws of Australia from time to time in accordance with SECTION 9.07 of this
Agreement or (b) agreed to by the Administrative Agent
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and the Borrowers in connection with an Australian Reorganization and otherwise
organized in accordance with SECTION 9.07 of this Agreement.
"AVAILABILITY" means, (a) with respect to any Credit Facility
at any particular time, the amount by which the Maximum Credit Amount for such
Credit Facility exceeds the Credit Facility Outstandings under such Credit
Facility at such time; (b) with respect to any Subfacility at any particular
time, the amount by which the Maximum Credit Amount for such Subfacility exceeds
the Credit Facility Outstandings under such Subfacility at such time; or (c)
with respect to both Credit Facilities at any particular time, the aggregate
Availability under each Credit Facility.
"AVAILABILITY RESERVES" means (a) an amount equal to the
Australian Credit Facility Sublimit, (b) an amount equal to the aggregate
commitments of all CNAI Affiliates under any other foreign working capital
facility subject to the Foreign Working Capital Guaranty, (c) any other reserve
against the Availability under any Credit Facility established by the
Administrative Agent, (d) any reserve established pursuant to SECTION
9.02(b)(iv) and (e) such amounts as the Administrative Agent may from time to
time establish against Availability under any Credit Facility in order either
(i) to preserve the value of, or the Administrative Agent's Lien on, the
Collateral or (ii) to reflect future liabilities (including, without limitation,
liabilities in respect of cash management agreements and arrangements) of the
Borrowers to the Administrative Agent and its Affiliates.
"BAILEE" is defined in the Domestic Security Agreement.
"BANK ACCOUNTS" means the Cash Collateral Accounts, the
Collection Accounts, the Disbursement Accounts, the Lockboxes, and the
Concentration Accounts.
"BANK OF SCOTLAND OVERDRAFT LINE" means that certain working
capital facility in a principal amount not to exceed (pound)16,000,000, provided
by Bank of Scotland to the UK Borrower pursuant to that certain letter dated
October 15, 2001 between, inter alios, Bank of Scotland and the UK Borrower.
"BANKRUPTCY CODE" means Title 11 of the United States Code (11
U.S.C.ss.ss.101 ET seq.), as amended from time to time, and any successor
statute.
"BANKRUPTCY EVENT" means (a) any event that constitutes a
Default or an Event of Default under SECTION 11.01(f) or 11.01(g), and (b) as
used in SECTION 9.06(a)(ii)(E), any event of a type described under SECTION
11.01(f) or 11.01(g) with respect to the Parent (rather than a Borrower or
Borrower Subsidiary as set forth therein).
"BENEFIT PLAN" means a defined benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Employee
Benefit Plan) in respect of which any Borrower or any ERISA Affiliate is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"BOARD OF DIRECTORS" means, with respect to any Person, the
board of directors of such Person or any committee thereof duly authorized to
act on behalf of such Board.
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"BORROWER SUBSIDIARIES" means the Subsidiaries of each
Borrower and "BORROWER SUBSIDIARY" means any Subsidiary of any Borrower.
"BORROWERS" is defined in the preamble.
"BORROWING" means a borrowing consisting of Loans under the
same Credit Facility of the same type (i.e., Floating Rate Loans or Fixed Rate
Loans) and of the same Optional Currency made on the same day by the same
Borrower.
"BORROWING BASE" shall mean any of the Domestic Borrowing Base
or the Multicurrency Borrowing Base.
"BORROWING BASE CERTIFICATE" means a certificate, (a) with
respect to the Domestic Facility, in substantially the form of EXHIBIT C-1
attached hereto (with such modifications thereto as shall be agreed to by the
Administrative Agent in accordance with the terms of this Agreement), setting
forth the Domestic Borrowers' calculation of the Domestic Borrowing Base and (b)
with respect to the Multicurrency Facility, in substantially the form of EXHIBIT
C-2 attached hereto (with such modifications thereto as shall be agreed to by
the Administrative Agent in accordance with the terms of this Agreement),
setting forth the Multicurrency Borrowers' calculation of the Multicurrency
Borrowing Base.
"BORROWING BASE DELIVERY DATE" is defined in SECTION 7.05.
"BUSINESS ACTIVITY REPORT" means (a) a Notice of Business
Activities Report from the State of New Jersey Division of Taxation or (b) a
Minnesota Business Activity Report from the Minnesota Department of Revenue.
"BUSINESS DAY" means a day, in the applicable local time, (a)
which is not a Saturday or Sunday or a legal holiday, (b) on which banks are not
required or permitted by law or other governmental action to close (i) in New
York, New York, (ii) in the case of Fixed Rate Loans or Multicurrency Loans, in
London, England, or (iii) in the case of Letter of Credit transactions for a
particular Issuing Bank, in the place where its office for issuance or
administration of the pertinent Letter of Credit is located, and (c) in the case
of Euro Loans, on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) system is operating.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of
all expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be classified as capital expenditures but excluding (a)
interest capitalized relating to and during construction of Property, (b)
expenditures made in connection with the replacement or restoration of Property
to the extent reimbursed or financed from insurance or condemnation proceeds not
constituting net cash proceeds of sale of such Property, and (c) expenditures
made with the proceeds from the sales of similar Property to the extent such
sales and reinvestments are otherwise permitted under this Agreement.
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"CAPITAL LEASE" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"CAPITAL STOCK" means, with respect to any Person, any shares
of common or preferred stock, any other equity securities, any limited liability
company interests, any general or limited partnership interests or other
equivalents of such Person, regardless of class or designation, and all
warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.
"CASH COLLATERAL" means immediately available cash or Cash
Equivalents in any Concentration Account or Cash Collateral Account under the
"control" (within the meaning of Section 9-104 of the Uniform Commercial Code or
in the case of Cash Collateral of the Multicurrency Borrowers, within the
meaning of applicable law) of the Administrative Agent, as security for any of
the Obligations.
"CASH COLLATERAL ACCOUNTS" means, collectively, the Domestic
Cash Collateral Account and the Multicurrency Cash Collateral Accounts.
"CASH EQUIVALENTS" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States government and backed
by the full faith and credit of the United States government; (b) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations), which, at the time of acquisition, are rated A-1 (or
better) by Standard & Poor's Corporation (or its successors) or P-1 (or better)
by ▇▇▇▇▇'▇ Investors Service, Inc. (or its successors); (c) commercial paper of
United States and foreign banks and bank holding companies and their
subsidiaries and United States and foreign finance, commercial industrial or
utility companies which, at the time of acquisition, are rated A-1 (or better)
by Standard & Poor's Corporation (or its successors) or P-1 (or better) by
▇▇▇▇▇'▇ Investors Service, Inc. (or its successors); and (d) marketable direct
obligations of any state of the United States of America or any political
subdivision of any such state given on the date of such investment the highest
credit rating by ▇▇▇▇▇'▇ Investors Service, Inc. (or its successors) and
Standard & Poor's Corporation (or its successors); provided, that the maturities
of any such Cash Equivalents referred to in clauses (a) through (d) shall not
exceed 270 days.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ▇▇.▇▇. 9601 ET SEQ., any
amendments thereto, any successor statutes, and any regulations or legally
enforceable guidance promulgated thereunder.
"CERCLIS" is defined in SECTION 6.01(o).
"CHANGE OF CONTROL" means any of the following shall occur:
(a) any Person or group of Persons (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act) other than one or more
Permitted Holders, is or becomes the
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"beneficial owner" (as defined in Rules 13d-3 and 13d-5 promulgated by the
Commission under said Act) of twenty-five percent (25%) or more of the total
voting power of the outstanding Voting Stock of the Parent; provided, however,
that the Permitted Holders beneficially own (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the Voting Stock of Parent than
such other person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board of
Directors of Parent;
(b) individuals who on the Closing Date constituted the Board
of Directors of NMHG Holding or the Parent (together with any new directors
whose election by such Board of Directors of NMHG Holding or the Parent, as the
case may be, or whose nomination for election by the stockholders of NMHG
Holding or the Parent, as the case may be, was approved by a vote of a majority
of the directors of NMHG Holding or of the Parent, as the case may be, then
still in office who were either directors on the Closing Date or whose election
or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of NMHG Holding or the Parent,
as the case may be, then in office;
(c) the adoption of a plan relating to the liquidation or
dissolution of any Credit Party or the Parent other than to the extent permitted
in SECTION 9.09;
(d) the merger or consolidation of Parent or any Credit Party
with or into another Person or the merger of another Person with or into Parent
or any Credit Party, or the sale of all or substantially all the assets of
Parent (determined on a consolidated basis) or any Credit Party to another
Person, other than a transaction permitted by SECTION 9.09;
(e) the occurrence of a "Change of Control" under (and as
defined in) the Senior Note Indenture; or
(f) one hundred percent (100%) of the Capital Stock of any
Borrower ceasing to be owned (directly or indirectly) and controlled by the
Parent, other than to the extent permitted by SECTION 9.02(c).
"CITIBANK" means Citibank, NA, a national banking association.
"CLAIM" means any claim or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"CLOSING DATE" means May 9, 2002.
"CLOSING LIST" is defined in SECTION 5.01(a)(i).
"CNAI" is defined in the preamble.
"CNAI AFFILIATES" means all Affiliates of CNAI.
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"COLLATERAL" means all Property and interests in Property and
proceeds thereof (including, but not limited to, all accounts, Receivables,
deposit accounts, Bank Accounts, chattel paper, instruments, investment
property, Inventory, General Intangibles, documents, commercial tort claims, and
proceeds thereof) now owned or hereafter acquired by any Credit Party upon which
a Lien is granted under any of the Loan Documents, provided, that the Collateral
shall not include any Equipment, Real Property, fixtures or improvements
thereon.
"COLLATERAL ACCESS AGREEMENT" means (a) a landlord waiver
(with a copy of the relevant Lease attached) with respect to personal property
located at real property leased by any Credit Party, substantially in the form
of EXHIBIT D-1 attached hereto (with such modifications as the Administrative
Agent may approve in its sole discretion), (b) a bailee waiver with respect to
Property maintained by a Credit Party with a Bailee, substantially in the form
of EXHIBIT D-2 attached hereto (with such modifications as the Administrative
Agent may approve in its sole discretion), and (c) a waiver with respect to
Collateral that is the subject of a ▇▇▇▇ of lading executed by the issuer of
such ▇▇▇▇ of lading and the agent for the destination named in such ▇▇▇▇ of
lading, in form and substance satisfactory to the Administrative Agent.
"COLLATERAL VALUE" means (a) with respect to any Eligible
Receivable, the Dollar Equivalent of the unpaid face amount of such Receivable;
(b) with respect to any item of Eligible Inventory, the Dollar Equivalent of the
value (determined at the lower of cost, on a first-in, first-out, basis and
market value) of such Inventory.
"COLLECTION ACCOUNT AGREEMENT" means (a) with respect to
Collection Accounts located in the United States, a collection account agreement
executed by a Collection Account Bank, the applicable Borrower or Borrowers, and
the Administrative Agent substantially in the form of EXHIBIT E attached hereto
(with such changes thereto requested by the Collection Account Bank as may be
acceptable to the Administrative Agent and the applicable Borrower or Borrowers,
as the case may be), and (b) with respect to Collection Accounts located outside
of the United States, an agreement or security agreement between a Multicurrency
Borrower, the Administrative Agent (in its capacity as security holder or
otherwise), a Collection Account Bank and such other parties as may be
necessary, which agreement gives the Administrative Agent the control rights
specified therein and security with respect to the Collection Accounts
designated therein, in form and substance satisfactory to the Administrative
Agent, in each case, as the same may be amended, supplemented or otherwise
modified from time to time.
"COLLECTION ACCOUNT BANK" means each bank which has entered
into a Collection Account Agreement and which is identified as a Collection
Account Bank on SCHEDULE 6.01-Z, as such schedule may be modified from time to
time pursuant to SECTION 3.06.
"COLLECTION ACCOUNTS" means, collectively, the collection
accounts in which proceeds of Collateral are deposited, established at the
Collection Account Banks which are subject to a Collection Account Agreement.
"COLLECTIONS" is defined in SECTION 3.06(b).
"COMMERCIAL LETTER OF CREDIT" means any documentary letter of
credit Issued by an Issuing Bank pursuant to SECTION 2.02 for the account of a
Borrower, which is drawable upon
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presentation of documents evidencing the sale or shipment of goods purchased by
such Borrower in the ordinary course of its business.
"COMMITMENT LETTER" means the Commitment Letter dated April 3,
2002, from CNAI, CSFB and SSB and accepted by the Domestic Borrowers.
"COMMITMENT REALLOCATION REQUEST" is defined in SECTION
3.01(d).
"COMMITMENT REDUCTION AMOUNT" is defined in SECTION 3.01(d).
"COMMITMENTS" means, collectively, the Domestic Commitments
and the Multicurrency Commitments (it being understood and agreed that the
maximum aggregate principal amount of the Commitments shall not exceed
$175,000,000, as reduced from time to time pursuant to the terms hereof).
"COMPLIANCE CERTIFICATE" is defined in SECTION 7.01(e).
"CONCENTRATION ACCOUNT" means any Domestic Concentration
Account or Multicurrency Concentration Account, and "CONCENTRATION ACCOUNTS"
means, collectively, the Domestic Concentration Account and the Multicurrency
Concentration Accounts.
"CONSOLIDATED EBITDA" means, for any period, (a) Consolidated
Net Income for such period PLUS (b) to the extent deducted in determining
Consolidated Net Income for such period, but without duplication, the aggregate
amount of (i) depreciation and amortization expense, (ii) Consolidated Interest
Expense, (iii) foreign, federal, state and local income taxes, (iv)
extraordinary losses, (v) equity in losses of unconsolidated Subsidiaries and
Affiliates, (vi) accruals for long-term deferred compensation (net of cash
payments of deferred compensation accrued in prior periods), (vii) losses from
minority interests in affiliates, (viii) non-recurring non-cash charges and
expenses (including the cumulative effect of any Accounting Changes), (ix)
non-cash expenses relating to the ▇▇▇▇ to market provision for derivative
instruments, and (x) cash receipts related to the termination of any derivative
instrument that, as of the end of the prior period, had a net gain since the
inception of such derivative instrument, MINUS (c) to the extent included in
determining Consolidated Net Income for such period, but without duplication,
(i) extraordinary gains, (ii) equity in earnings of unconsolidated Subsidiaries
and Affiliates for such period, (iii) income from minority interests in
affiliates, (iv) non-recurring non-cash gains (including the cumulative effect
of any Accounting Changes), (v) non-cash income relating to the ▇▇▇▇ to market
provision for derivative instruments, and (vi) cash payments related to the
termination of any derivative instrument that, as of the end of the prior
period, had a net loss since the inception of such derivative instrument.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, all as
determined in conformity with GAAP, (a) total interest expense, whether paid or
accrued (without duplication) (including the interest component of Capital Lease
obligations), of NMHG Holding and its Subsidiaries on a consolidated basis,
including, without limitation, all recurring bank loan fees and commissions,
discounts and other fees and charges owed with respect to letters of credit, but
excluding, however, amortization of discount, interest paid in property other
than cash or any other interest expense not payable in cash, PLUS (b) any net
payments made during such period
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under Interest Rate Contracts minus (c) any net payments received during such
period under Interest Rate Contracts, PLUS (d) to the extent deducted in
determining Consolidated Interest Expense, any interest income.
"CONSOLIDATED NET INCOME" means, for any period, the net
earnings (or loss) after taxes of NMHG Holding and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP.
"CONSTITUENT DOCUMENT" means, (a) with respect to any
corporation, (i) the articles/certificate of incorporation (or the equivalent
organizational documents) of such entity, (ii) the bylaws (or the equivalent
governing documents) of such entity and (iii) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of any
class or series of such entity's Capital Stock or any unanimous shareholder
agreement pertaining to any Foreign Subsidiary; (b) with respect to any
partnership (whether limited or general), (i) the certificate of partnership (or
equivalent filings), (ii) the partnership agreement (or equivalent
organizational documents) of such partnership and (iii) any document setting
forth the designation, amount and/or rights, limitations and preferences of any
of such partnership's partnership interests; and (c) with respect to any limited
liability company, (i) the articles of organization (or the equivalent
organizational documents) of such entity, (ii) the operating agreement (or the
equivalent governing documents) of such entity and (iii) any document setting
forth the designation, amount and/or rights, limitations and preferences of any
of such limited liability company's membership interests.
"CONTAMINANT" means any man-made or naturally occurring waste,
pollutant, hazardous substance, radioactive substance or material, toxic
substance, hazardous waste, radioactive waste, special waste, petroleum or
petroleum-derived substance or waste, mold, asbestos in any form or condition,
polychlorinated biphenyls, or any hazardous or toxic constituent thereof and
includes, but is not limited to, these terms as defined in Environmental, Health
or Safety Requirements of Law.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"CREDIT AND COLLECTION POLICIES" means the credit and
collection policy of each Borrower and each originator of Receivables owned by a
Borrower, each in the respective form and substance attached as EXHIBIT F
attached hereto and satisfactory to the Administrative Agent.
"CREDIT FACILITY" means either of the Domestic Facility and
the Multicurrency Facility. "CREDIT FACILITIES" means, collectively, the
Domestic Facility and the Multicurrency Facility.
"CREDIT FACILITY OUTSTANDINGS" means, at any particular time
(a) with respect to the Domestic Facility, the sum of (i) the outstanding
principal amount of the Swing Loans at such time, PLUS (ii) the outstanding
principal amount of the Domestic Loans at such time, PLUS
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(iii) the Letter of Credit Obligations outstanding at such time under the
Domestic Facility, PLUS (iv) the aggregate principal amount of Protective
Advances to the Domestic Lenders outstanding at such time; (b) with respect to
the Multicurrency Facility, the sum of (i) the Overdraft Line Commitment, PLUS
(ii) the outstanding principal amount of the Sterling Loans at such time, PLUS
(iii) the outstanding principal amount of the Euro Loans at such time, PLUS (iv)
the Letter of Credit Obligations outstanding at such time under the
Multicurrency Facility, PLUS (v) the aggregate principal amount of Protective
Advances to the Multicurrency Lenders; (c) with respect to the Euro Subfacility,
the outstanding principal amount of the Euro Loans under such Subfacility at
such time PLUS the Letter of Credit Obligations denominated in Euros and
outstanding at such time under the Multicurrency Facility PLUS the Euro
Overdraft Limit; and (d) with respect to the Sterling Subfacility, the
outstanding principal amount of the Sterling Loans under such Subfacility at
such time PLUS the Letter of Credit Obligations denominated in Sterling and
outstanding at such time under the Multicurrency Facility PLUS the Sterling
Overdraft Limit. For purposes of determining the amount of Credit Facility
Outstandings (or any component thereof) in respect of any Revolving Loan which
is denominated in Euros or Sterling, such amount shall equal the Dollar
Equivalent of the amount of such currency at the time of determination thereof.
"CREDIT PARTY" means any Domestic Credit Party or Foreign
Credit Party, and "CREDIT PARTIES" means, collectively, the Domestic Credit
Parties and the Foreign Credit Parties.
"CSFB" is defined in the preamble.
"CUMULATIVE AVAILABILITY" means the sum of (a) Availability
under the Domestic Facility PLUS (b) the amount then available under the
Permitted Multicurrency Refinancing as set forth in a notice from NMHG Holding
(certified by a Financial Officer) to the Administrative Agent.
"CURE FUNDINGS" is defined in SECTION 3.02(b)(iv)(C).
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"CURRENCY AGREEMENT EXPOSURE" means, with respect to any
Borrower at any time and from time to time, an aggregate amount equal to the
then pre-settlement risk of such Borrower (determined by the Administrative
Agent in accordance with the Administrative Agent's (or its applicable
Affiliate's) customary practices) of each Currency Agreement entered into by
such Borrower and the Administrative Agent (or an Affiliate of the
Administrative Agent) on or after the Closing Date for the remaining term and
volume of such Currency Agreement, disregarding (subject to the immediately
succeeding sentence) any Currency Agreement with respect to which the
pre-settlement risk of such Borrower at such time is positive. If (a) such
Borrower is a party to (i) such Currency Agreement providing for such Borrower's
purchase of a particular currency and (ii) a similar Currency Agreement with the
same counterparty providing for the sale of such currency and (b) such Borrower
and such counterparty have entered into a netting agreement in form and
substance satisfactory to the Administrative Agent with respect to such Currency
Agreements, then the pre-settlement risk of such Borrower and such
counterparties at such time (determined by the Administrative Agent in
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accordance with the Administrative Agent's (or its applicable Affiliate's)
customary practices) under such Currency Agreements shall be netted against one
another in determining such Borrower's aggregate Currency Agreement Exposure (it
being understood and agreed that if any such netting of Currency Agreements
results in a positive net pre-settlement risk to such Borrower, such net
pre-settlement risk shall be disregarded in the calculation of such Borrower's
aggregate Currency Agreement Exposure).
"CUSA" means Citicorp USA, Inc., a Delaware corporation.
"CUSTOMARY PERMITTED LIENS" means
(a) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or governmental
charges in all cases which are not yet due or which are not required to be paid
pursuant to SECTION 8.04;
(b) statutory Liens of landlords and Liens of mechanics,
carriers, materialmen, consignors, warehousemen, or workmen and other Liens
imposed by law created in the ordinary course of business for amounts not yet
due or which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP, provided that the foregoing shall not
include statutory or contractual rights of title retention on Inventory;
(c) Liens (other than any Lien in favor of the PBGC) incurred
or deposits made in the ordinary course of business in connection with worker's
compensation, unemployment insurance or other types of social security benefits
or to secure the performance of bids, tenders, sales, surety, appeal and
performance bonds, trade, contracts (not constituting Indebtedness), regulatory
or statutory obligations, government contracts or other obligations of a like
nature provided in the ordinary course of business; provided that all such Liens
do not in the aggregate detract from the value of any Borrower's or any of its
Subsidiaries' assets or Property or impair the use thereof in the operation of
their respective businesses; and
(d) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use of
Real Property which do not interfere with the ordinary conduct of the business
of any Borrower or its Subsidiaries.
"DB CONTRIBUTION AMOUNT" is defined in SECTION 13.06(a).
"DEFAULT" means an event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" is defined in SECTION 3.02(b)(iv).
"DISBURSEMENT ACCOUNTS" means, collectively, the disbursement
account of each Borrower as set forth on SCHEDULE 6.01-Z.
"DISTRIBUTION PROPERTY" is defined in SECTION 9.02(b).
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"DOL" means the United States Department of Labor and any
Person succeeding to the functions thereof.
"DOLLAR EQUIVALENT" means, with respect to any amount
denominated in a Specified Foreign Currency on the date of determination
thereof, the equivalent of such amount in Dollars determined at the rate of
exchange equal to the Spot Rate on such date of determination.
"DOLLARS" and "$" mean the lawful money of the United States.
"DOMESTIC BORROWER GUARANTY" means (a) the Domestic Borrower
Guaranty dated as of the Closing Date duly executed and delivered to the
Administrative Agent by each of the Domestic Guarantors with respect to the
Domestic Obligations, substantially in the form and substance of EXHIBIT G-1
attached hereto, and (b) each Domestic Borrower Guaranty, substantially in the
form and substance of EXHIBIT G-1 attached hereto, required to be executed and
delivered by a Domestic Subsidiary pursuant to SECTION 9.07, as each of the same
may be further amended, supplemented or otherwise modified from time to time.
"DOMESTIC BORROWERS" means, collectively, NMHG Holding, NMHG,
and NMHG Distribution.
"DOMESTIC BORROWING BASE" means, as of any date of
determination, with respect to the Domestic Borrowers, an amount equal to the
sum of:
(a) up to 85.0% (or such other higher percentage as agreed to
by all Lenders in their sole discretion) of the Collateral Value of Eligible
Domestic Receivables PLUS
(b) the least of:
(i) $90,000,000 LESS the Multicurrency Inventory
Sublimit,
(ii) up to 65.0% of the Collateral Value of the
aggregate Eligible Domestic Inventory, and
(iii) the sum of the products of the Inventory
Advance Rate multiplied by the Collateral Value of each
category of Eligible Domestic Inventory set forth on the
Domestic Borrowers' Borrowing Base Certificate, PLUS
(c) the Dollar Equivalent of cash, overnight investments and
marketable direct obligations issued or unconditionally guaranteed by
the United States government and backed by the full faith and credit of
the United States government with a tenor of less than one year
deposited by or on behalf of any Domestic Borrower and held from time
to time in the Domestic Concentration Account or the Domestic Cash
Collateral Account, in each case, subject to a first priority perfected
Lien of the Administrative Agent.
For purposes of this definition, the Collateral Values of Inventory shall be
determined after deduction of all Eligibility Reserves then effective with
respect to such items.
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"DOMESTIC CASH COLLATERAL ACCOUNT" means an account designated
as such and established by the Administrative Agent in the name of the
Administrative Agent maintained with Citibank in New York, New York.
"DOMESTIC COLLATERAL" means all Collateral of the Domestic
Credit Parties.
"DOMESTIC COMMITMENT" means the commitment of each Domestic
Lender to make Domestic Loans (including Domestic Loans required to be made
pursuant to SECTION 2.01(g) and 2.02(e)(ii) to the Domestic Borrowers), to
participate in Letters of Credit Issued for the account of the Domestic
Borrowers, and to participate in Multicurrency Loans and fund such
participations, in each case pursuant to SECTION 2.03, in an aggregate principal
amount (after giving effect to all participations purchased by and from such
Domestic Lender) outstanding not to exceed the amount on the Closing Date set
forth opposite such Domestic Lender's name on SCHEDULE 1.01.1 under the caption
"Domestic Commitment", as such amount may be reduced or modified pursuant to
this Agreement; provided, however, at no time shall the aggregate Domestic
Commitments of all Domestic Lenders exceed $130,000,000 less any permanent
reduction made pursuant to SECTION 3.01; provided, further, at the Closing Date
the aggregate Domestic Commitments of all Domestic Lenders shall equal
$120,000,000; provided, further, at no time shall the aggregate Domestic
Commitments and the aggregate Multicurrency Commitments exceed $175,000,000.
"DOMESTIC CONCENTRATION ACCOUNT" means account number
▇▇▇▇▇▇▇▇, in the name of the Administrative Agent, maintained with Citibank in
New York, New York.
"DOMESTIC CREDIT PARTY" means any Domestic Borrower or any
Domestic Guarantor, and "DOMESTIC CREDIT PARTIES" means, collectively, the
Domestic Borrowers and the Domestic Guarantors.
"DOMESTIC FACILITY" means the facility provided by the
Domestic Lenders to make Domestic Loans to, and to Issue Letters of Credit for
the account of, the Domestic Borrowers, and provided by the Swing Loan Bank to
make Swing Loans to the Domestic Borrowers, in each case in accordance with the
terms and conditions contained in this Agreement.
"DOMESTIC GUARANTOR" means each Domestic Subsidiary (other
than a Domestic Borrower) which is (a) designated on SCHEDULE 1.01.2 or (b)
required under SECTION 9.07 to be a party to a Domestic Borrower Guaranty and/or
a Multicurrency Borrower Guaranty.
"DOMESTIC LENDERS" means the Lenders designated as such on
SCHEDULE 1.01.1 under the caption "Domestic Commitment" and each other
institution which is party hereto as a Domestic Lender pursuant to an Assignment
and Acceptance.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
such Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrowers and the Administrative Agent.
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"DOMESTIC LIBO RATE" means, with respect to any Interest
Period applicable to a Borrowing of Fixed Rate Loans under the Domestic Facility
denominated in Dollars, the interest rate per annum obtained by DIVIDING:
(a) the interest rate per annum equal to (A) the offered
quotations for deposits in Dollars for a period comparable to the
relevant Interest Period which appears on Dow ▇▇▇▇▇ Markets Service
(formerly known as Telerate) Page 3750 or Dow ▇▇▇▇▇ Markets Service
Page 3740 (as appropriate) (or such other page as may replace Page 3750
or Page 3740, as applicable, or the service as may be nominated by the
British Bankers' Association as the information vendor for the purpose
of displaying British Bankers' Association Interest Settlement Rates
for deposits in Dollars) at or about 11:00 a.m. (London time) on the
applicable Fixed Rate Determination Date; or (B) if no such interest
rate determined under clause (A) is available, the arithmetic mean
(rounded upward to the nearest one-sixteenth of one percent (0.0625%))
of the interest rates, as supplied to Citibank at its request, quoted
by the "London Reference Banks" to leading banks in the London
interbank market at or about 11:00 a.m. (London time) on the applicable
Fixed Rate Determination Date for the offering of deposits in Dollars
for a period comparable to the relevant Interest Period, BY
(b) a percentage equal to (i) 100% MINUS (ii) the Domestic
LIBOR Reserve Percentage in effect on the relevant Fixed Rate
Determination Date. The Domestic LIBO Rate shall be adjusted
automatically on and as of the effective date of any change in the
Domestic LIBOR Reserve Percentage.
For purposes of this definition, "DOMESTIC LIBOR RESERVE PERCENTAGE" means, for
any day, that percentage which is in effect on such day, as prescribed by the
Federal Reserve Board for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in New
York, New York with deposits exceeding five billion Dollars in respect of
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Fixed Rate
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any bank to United States
residents). The Administrative Agent shall provide to any Borrower, upon the
reasonable request of any Borrower, a explanation of any Domestic LIBOR Reserve
Percentage used in the determination of the Domestic LIBO Rate.
"DOMESTIC LOAN" is defined in SECTION 2.01(a).
"DOMESTIC LOAN NOTES" means one or more promissory notes
payable to the Domestic Lenders evidencing the Domestic Borrowers' Obligations
to repay the Domestic Loans made to such Borrowers, substantially in the form
and substance of EXHIBIT Q-1 attached hereto.
"DOMESTIC OBLIGATIONS" means the Obligations of the Domestic
Borrowers and the Domestic Guarantors under the Domestic Facility.
"DOMESTIC SECURITY AGREEMENT" means (a) the Security Agreement
dated as of the Closing Date by and between the Domestic Credit Parties and the
Administrative Agent,
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substantially in the form and substance of EXHIBIT H attached hereto, and (b)
each Security Agreement executed and delivered by a Domestic Subsidiary,
substantially in the form and substance of EXHIBIT H attached hereto, pursuant
to SECTION 9.07, as each of the same may be further amended, supplemented or
otherwise modified from time to time.
"DOMESTIC SUBSIDIARY" means any Subsidiary of NMHG Holding
organized in the United States or any state or territory thereof.
"DUTCH PLEDGES" means any and all Pledge Agreements, Foreign
Security Agreements or other Security Documents creating a right of pledge
(pandrechten) under the laws of the Netherlands.
"ELIGIBILITY RESERVES" means such amounts as the
Administrative Agent, in the exercise of its sole discretion in accordance with
the Administrative Agent's customary practices, may from time to time establish
against the gross amounts of Eligible Foreign Receivables, Eligible Domestic
Receivables, Eligible Foreign Inventory and Eligible Domestic Inventory to
reflect risks or contingencies arising after the Closing Date or to reflect
risks of statutory and contractual rights of retention on the Inventory of each
Multicurrency Borrower or its Subsidiaries existing on or after the Closing Date
which may affect such items and which have not already been taken into account
in the determination of Eligible Foreign Receivables, Eligible Domestic
Receivables, Eligible Foreign Inventory, and Eligible Domestic Inventory.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) the Issuing Bank, and
(iii) unless an Event of Default has occurred and is continuing, any Borrower
(each such approval not to be unreasonably withheld or delayed); provided, that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any Affiliates of any Borrower or the Borrower Subsidiaries.
"ELIGIBLE DOMESTIC INVENTORY" means Inventory owned by a
Domestic Borrower:
(a) with respect to which the Administrative Agent has a valid
and perfected first priority Lien (subject only to Customary Permitted Liens),
(b) with respect to which no representation, warranty or
covenant contained in any of the Loan Documents has been breached,
(c) which is not in the sole discretion of the Administrative
Agent (exercised in accordance with the Administrative Agent's customary
practices), obsolete, unmerchantable or subject to any statutory, contractual or
other title retention or similar agreement or arrangement,
(d) (i) located in the United States or (ii) in transit to the
United States from a Multicurrency Borrower and (A) with respect to Collateral
in transit as of the Closing Date, as to which the issuer of the related ▇▇▇▇ of
lading and the agent at the destination named in such ▇▇▇▇ of lading have
executed a Collateral Access Agreement no later than the forty-fifth day after
the Closing Date and (B) with respect to any other such Collateral, as to which
the issuer of the
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related ▇▇▇▇ of lading and the agent at the destination named in such ▇▇▇▇ of
lading have executed a Collateral Access Agreement, and
(e) which the Administrative Agent deems to be Eligible
Domestic Inventory, based on such credit and collateral considerations as the
Administrative Agent deems appropriate.
Except as otherwise agreed to by the Administrative Agent, no Inventory of any
Domestic Borrower shall be Eligible Domestic Inventory if such Inventory is
located, stored, used or held at leased premises or the premises of a Bailee
unless (i) the Administrative Agent shall have received a Collateral Access
Agreement from such third party unless, solely with respect to Inventory located
in the United States of America (including its territories and possessions), a
Collateral Access Agreement is not required pursuant to SECTION 8.11 and (ii)
appropriate UCC-1 financing statements shall have been executed or, in the case
of Inventory which is located, stored, used or held outside the United States of
America (including its territories and possessions), other appropriate action
satisfactory to the Administrative Agent shall have been taken to make the
rights of the Administrative Agent in such Inventory effective against third
parties, with respect to such location. The Administrative Agent reserves the
right to create, from time to time, additional categories of ineligible
Inventory.
"ELIGIBLE DOMESTIC RECEIVABLE" means a Receivable owned by a
Domestic Borrower:
(i) (A) The account debtor of which is located in the United
States of America or Canada, is not an Affiliate of any Domestic
Borrower (other than a Financing Affiliate or Hyster New England, Inc.,
a Delaware corporation), is not a foreign governmental authority, and
is otherwise approved of by the Administrative Agent, (B) is an
Eligible L/C Backed Domestic Receivable, (C) is an Eligible Supported
Domestic Receivable, or (D) the account debtor of which is a Financing
Affiliate and the Financing Agreement specified in CLAUSE (b) of the
definition thereof is in full force and effect;
(ii) To the extent the aggregate amount of all Receivables
owing by the account debtor thereof to the Domestic Borrowers do not
exceed a credit limit determined by the Administrative Agent;
(iii) With respect to which less than 50% of all Receivables
owing by the account debtor thereof to the Domestic Borrowers are
ineligible for any reason other than a failure to satisfy CLAUSE (ii)
above;
(iv) The account debtor of which has not suffered a
bankruptcy, insolvency or similar event and the terms of which have not
been re-written, extended or restructured due to such account debtor's
inability to pay;
(v) The term of which is not longer than 90 days unless
otherwise permitted by the Administrative Agent in its sole discretion;
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(vi) Which does not remain unpaid for more than 60 days from
the due date or 90 days from the invoice date thereof unless otherwise
permitted by the Administrative Agent in its sole discretion, or which
the Administrative Agent does not otherwise believe the payment
thereunder is insecure or may not be paid due to the account debtor's
financial condition;
(vii) Which, pursuant to the applicable Domestic Borrower's
Credit and Collection Policy, has not been or should not have been
written off as uncollectible;
(viii) Which arises out of (A) a sale of goods (or rendering
of services) or (B) a rental by NMHG Distribution as the lessor of
goods owned by NMHG Distribution for periods of time less than or equal
to 90 days (but only to the extent of unpaid invoices for rent in
arrears), and, in each case, is made in the ordinary course of
business;
(ix) Which is in conformity with the representations,
warranties and covenants in the Loan Documents;
(x) Which does not contravene any laws, rules or regulations
applicable thereto and with respect to which no party to the contract
related thereto is in violation of any such law, rule or regulation
(including doing business and local licensing requirements);
(xi) (A) Which is not subject to any right of setoff, offset,
rescission, recoupment, counterclaim or defense or any dispute by the
account debtor thereof (provided that only 125.0% of the amount subject
to setoff, offset, rescission, recoupment, counterclaim, defense or
dispute shall be deemed ineligible) and (B) if the account debtor or
any of its Affiliates is also such Borrower's supplier or creditor and
such Receivable is or may become subject to any right of setoff by the
account debtor, such account debtor has entered into an agreement with
the Agent with respect to the waiver of rights of setoff;
(xii) Which was originated in accordance with all applicable
requirements of the applicable Domestic Borrower's Credit and
Collection Policies;
(xiii) That represents the genuine, legal, valid and binding
obligation of the account debtor thereunder enforceable in accordance
with its terms;
(xiv) The sale of which is not on a "shipped not billed",
▇▇▇▇-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment or any other repurchase or return basis;
(xv) The goods, the delivery of which has given rise to such
Receivable, have been delivered to and not rejected by the account
debtor thereunder, or the services, the performance of which has given
rise to such Receivable, have been performed and have not been rejected
by the account debtor thereunder;
(xvi) In which the Administrative Agent has a valid and
perfected first priority security interest and which is free and clear
of any other Liens (other than the Customary Permitted Liens specified
in CLAUSES (a) AND (b) of the definition thereof), and, if such
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Receivable constitutes "chattel paper" within the meaning of the
Uniform Commercial Code, such Borrower has complied with SECTION
8.06(c);
(xvii) If the account debtor of which is located in the state
of New Jersey or Minnesota, such Borrower has filed and maintained
effective a current Business Activity Report with the appropriate
Governmental Authority in such state (except in the case such Borrower
is qualified to transact business in such state as a foreign
corporation);
(xviii) Which does not arise out of or in connection with a
retainage or similar arrangement;
(xix) Which does not arise out of or in connection with a
transaction described in CLAUSE (c) of the defined term "Lease Finance
Transaction";
(xx) Which is not evidenced by an instrument; and
(xxi) Which is not otherwise deemed ineligible by the
Administrative Agent in accordance with its customary practices.
"ELIGIBLE FOREIGN INVENTORY" means Inventory owned by the
Multicurrency Borrowers:
(a) with respect to which the Administrative Agent has a valid
and perfected first priority Lien, first floating charge or similar
non-possessory interest (subject, in each case, only to Customary Permitted
Liens specified in CLAUSES (a) and (b) of the definition thereof),
(b) with respect to which no representation, warranty or
covenant contained in any of the Loan Documents has been breached,
(c) which is not in the sole discretion of the Administrative
Agent (exercised in accordance with the Administrative Agent's customary
practices), obsolete, unmerchantable or subject to any statutory, contractual or
other title retention or similar agreement or arrangement,
(d) (i) located on the premises of a Multicurrency Borrower in
the United Kingdom or the Netherlands or (ii) in transit from the premises or
warehouses of any Domestic Borrower to the premises of any Multicurrency
Borrower or in transit from the premises of any Multicurrency Borrower to the
premises of such or any other Multicurrency Borrower and (A) with respect to
Collateral in transit as of the Closing Date, for so long as such Collateral is
in transit, as to which the issuer of the related ▇▇▇▇ of lading (or other
applicable document issued by a transporter under applicable law with respect to
Inventory in transit) and the agent at the destination named in such ▇▇▇▇ of
lading (or other applicable document issued by a transporter under applicable
law with respect to Inventory in transit) have executed a Collateral Access
Agreement no later than the forty-fifth day after the Closing Date, (B) with
respect to any other such Collateral, as to which the issuer of the related ▇▇▇▇
of lading (or other applicable document issued by a transporter under applicable
law with respect to Inventory in transit) and the agent at the destination named
in such ▇▇▇▇ of lading (or other applicable document issued by a transporter
under applicable law with respect to Inventory in transit) have executed a
Collateral Access
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Agreement, and (C) as to which the related ▇▇▇▇ of lading (or other applicable
document issued by a transporter under applicable law with respect to Inventory
in transit) is not a negotiable ▇▇▇▇ of lading (or negotiable document), and
(e) which the Administrative Agent deems to be Eligible
Foreign Inventory, based on such credit and collateral considerations as the
Administrative Agent deems appropriate.
Except as otherwise agreed to by the Administrative Agent, no Inventory of any
Multicurrency Borrower shall be Eligible Foreign Inventory if such Inventory is
located, stored, used or held at leased premises or the premises of a third
party unless other appropriate action satisfactory to the Administrative Agent
shall have been taken to make the rights of the Administrative Agent in such
Inventory effective against third parties, with respect to such location. The
Administrative Agent reserves the right to create, from time to time, additional
categories of ineligible Inventory.
"ELIGIBLE FOREIGN RECEIVABLE" means any Receivable of the UK
Borrower:
(i) The account debtor of which is not domiciled in a country
(A) the national governmental authority of which is in default of its
foreign debts or has prohibited the sale of foreign exchange or is in
debt moratorium, or shall have ceased to be a member of the
International Monetary Fund, or (B) with respect to which the United
States shall have imposed economic sanctions under Title 31 Part 500
et. seq. of the U.S. Code of Federal Regulations;
(ii) (A) The account debtor of which is located in the United
Kingdom, the Netherlands, the United States or any other country that
is a member of the Organization for Economic Cooperation and
Development approved from time to time (unless disapproved from time to
time by the Administrative Agent), which shall initially include
Australia, Austria, Belgium, Denmark, Finland, France, Germany,
Iceland, Ireland, Italy, Japan, Luxembourg, New Zealand, Norway,
Portugal, Spain, Sweden, and Switzerland, (B) which is an Eligible L/C
Backed Foreign Receivable or (c) which is an Eligible Supported Foreign
Receivable;
(iii) The account debtor of which is not an Affiliate of any
Borrower or a governmental authority, and is otherwise approved of by
the Administrative Agent;
(iv) 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;
(v) To the extent all Receivables owing by the account debtor
thereof to the UK Borrower do not exceed a credit limit determined by
the Administrative Agent;
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(vi) With respect to which less than 50% of all Receivables of
the UK Borrower owing by the account debtor thereof are ineligible for
any reason other than a failure to satisfy CLAUSE (v) above;
(vii) The account debtor of which has not suffered a
bankruptcy, insolvency or similar event, or had an administrator or
analogous officer appointed, and the terms of which have not been
re-written, extended or restructured due to such account debtor's
inability to pay;
(viii) The term of which is not longer than 90 days unless
otherwise permitted by the Administrative Agent in its sole discretion;
(ix) Which does not remain unpaid for more than 60 days from
the due date or 90 days from the invoice date thereof unless otherwise
permitted by the Administrative Agent in its sole discretion, or which
the Administrative Agent does not otherwise believe the payment
thereunder is insecure or may not be paid due to the account debtor's
financial condition;
(x) Which, pursuant to the UK Borrower's Credit and Collection
Policy, has not been or should not have been written off as
uncollectible;
(xi) Which arises out of a sale of goods (or rendering of
services) by a Foreign Credit Party made in the ordinary course of
business;
(xii) Which is in conformity with the representations,
warranties and covenants in the Loan Documents;
(xiii) Which does not contravene any laws, rules or
regulations applicable thereto and with respect to which no party to
the contract related thereto is in violation of any such law, rule or
regulation (including doing business and local licensing requirements);
(xiv) (A) Which is not subject to any right of setoff, offset,
rescission, recoupment, counterclaim or defense or any dispute by the
account debtor thereof (provided that only 125.0% of the amount subject
to setoff, offset, rescission, recoupment, counterclaim, defense or
dispute shall be deemed ineligible) and (B) if the account debtor or
any of its Affiliates is also such Borrower's supplier or creditor and
such Receivable is or may become subject to any right of setoff by the
account debtor, such account debtor has entered into an agreement with
the Agent with respect to the waiver of rights of setoff;
(xv) Which was originated (or, solely with respect to
purchases by the UK Borrower in accordance with CLAUSE (iv) above,
originated by the Netherlands Borrower or by NACCO Materials Handling
S.R.L.) in accordance with all applicable requirements of the UK
Borrower's Credit and Collection Policies;
(xvi) That represents the lawful, valid and binding obligation
of the account debtor thereunder enforceable in accordance with its
terms;
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(xvii) The sale of which is not on a "shipped not billed",
▇▇▇▇-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment or any other repurchase or return basis;
(xviii) The goods, the delivery of which has given rise to
such Receivable, have been delivered to and have not been rejected by
the account debtor thereunder, or the services, the performance of
which has given rise to such Receivable, have been performed and have
not been rejected by the account debtor thereunder;
(xix) In which the Administrative Agent has a valid, legal or
equitable Lien in respect of which notice has been given to the
relevant account debtor and which is free and clear of any other Liens
(other than the Customary Permitted Liens specified in CLAUSES (a) AND
(b) of the definition thereof);
(xx) If the account debtor of which is located in the state of
New Jersey or Minnesota, the UK Borrower (or if such Receivables are
originated by the Netherlands Borrower or NACCO Materials Handling
S.R.L., such originator) has filed and maintained effective a current
Business Activity Report with the appropriate Governmental Authority in
such state (except in the case such Borrower is qualified to transact
business in such state as a foreign corporation);
(xxi) Which does not arise out of or in connection with a
retainage or similar arrangement;
(xxii) Which does not arise out of or in connection with a
transaction described in CLAUSE (c) of the defined term "Lease Finance
Transaction";
(xxiii) Which is not evidenced by an instrument;
(xxiv) if the sale of Inventory giving rise to such Receivable
is through an agent of the UK Borrower (including, without limitation,
an Affiliate acting as agent for the UK Borrower), the agency agreement
applicable thereto (A) shall be in form and substance reasonably
satisfactory to the Administrative Agent, (B) shall be enforceable and
in full force and effect under all applicable laws, and (C) shall have
been collaterally assigned to the Administrative Agent pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent (and, as to the matters described in CLAUSES (B)
and (C) above, the Administrative Agent has received such opinions of
counsel as the Administrative Agent may reasonably request); and
(xxv) Which is not otherwise deemed ineligible by the
Administrative Agent in accordance with its customary practices.
"ELIGIBLE INVENTORY" means Eligible Domestic Inventory and
Eligible Foreign Inventory.
"ELIGIBLE L/C BACKED DOMESTIC RECEIVABLE" means Eligible
Domestic Receivables of a Domestic Borrower the account debtor of which does not
meet the criteria set forth in clause (i)(A) of the definition of "Eligible
Domestic Receivable", is not an Affiliate of
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the Domestic Borrower, and with respect to which the account debtor's
obligations (or that portion of such obligations which is acceptable to the
Administrative Agent) are secured by a letter of credit, guaranty or eligible
bankers' acceptance having terms, and from such issuers and confirmation banks,
as are reasonably acceptable to the Administrative Agent (which letter of
credit, guaranty or acceptance is subject to the first priority Lien of the
Administrative Agent (other than Customary Permitted Liens specified in CLAUSES
(A) and (B) of the definition thereof) under the Domestic Security Agreement in
a manner reasonably satisfactory to the Administrative Agent).
"ELIGIBLE L/C BACKED FOREIGN RECEIVABLES" means Eligible
Foreign Receivables of the UK Borrower which arise with respect to a sale to an
account debtor located in any country (other than an approved country specified
or referred to in clause (ii)(A) of the defined term "Eligible Foreign
Receivable") and with respect to which the account debtor's obligations (or that
portion of such obligations which is acceptable to the Administrative Agent) are
secured by a letter of credit, guaranty or eligible bankers' acceptance having
terms, and from such issuers and confirmation banks, as are reasonably
acceptable to the Administrative Agent (which letter of credit, guaranty or
acceptance is subject to the valid legal or equitable Lien in respect of which
notice has been given to the relevant obligor in favor of the Administrative
Agent (other than Customary Permitted Liens specified in CLAUSES (a) and (b))
under the Foreign Security Agreements in a manner reasonably satisfactory to the
Administrative Agent).
"ELIGIBLE RECEIVABLES" means the Eligible Domestic Receivables
and the Eligible Foreign Receivables.
"ELIGIBLE SUPPORTED DOMESTIC RECEIVABLE" means Eligible
Domestic Receivables of a Domestic Borrower the account debtor of which does not
meet the criteria set forth in clause (i)(A) of the definition of "Eligible
Domestic Receivable", and which are fully supported by credit insurance payable
to such Domestic Borrower on terms and conditions and from a financial
institution satisfactory to the Administrative Agent; provided that such credit
insurance (x) shall be in full force and effect and not in dispute and (y) shall
have been collaterally assigned to the Administrative Agent pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent.
"ELIGIBLE SUPPORTED FOREIGN RECEIVABLES" means Eligible
Foreign Receivables of the UK Borrower which arise with respect to sales to
account debtors in any country (other than an approved country specified or
referred to in clause (ii)(A) of the defined term "Eligible Foreign
Receivable"), and which are fully supported by credit insurance payable to such
Borrower on terms and conditions and from a financial institution satisfactory
to the Administrative Agent; provided that such credit insurance (x) shall be in
full force and effect and not in dispute and (y) shall have been collaterally
assigned to the Administrative Agent pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent.
"ENGLISH DEED OF CHARGE" means that certain Deed of Charge and
Assignment dated the Closing Date by and between the UK Borrower and the
Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
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"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means
all Requirements of Law derived from or relating to federal, state, local and
foreign laws, regulations, orders, ordinances, rules, permits, licenses or other
binding determination of any Governmental Authority relating to or addressing
the indoor or outdoor environment, public or worker health or safety, including
but not limited to CERCLA, any other law, regulation, or order relating to the
use, Release, handling, or disposal of any Contaminant, any law, regulation, or
order relating to Remedial Action and any law, regulation, or order relating to
workplace or worker safety and health, and such Requirements of Law as are
promulgated by the specifically authorized agent or agents responsible for
administering such Requirements of Law.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for any (a) liabilities under any Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACTS" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the closure of any Property or the
transfer, sale or lease of any Property or deed or title for any Property for
environmental reasons, including, but not limited to, any so-called
"Environmental Cleanup Responsibility Act", "Responsible Transfer Act", or
"Industrial Site Recovery Act".
"EQUIPMENT" means, with respect to any Person, all of such
Person's present and future equipment (as defined in the Uniform Commercial
Code).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" means (a) any corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as any Borrower; (b) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414(c) of the Internal Revenue Code) with any
Borrower; (c) a member of the same affiliated service group (within the meaning
of Section 414(m) of the Internal Revenue Code) as any Borrower, any corporation
described in CLAUSE (A) above or any partnership or trade or business described
in CLAUSE (B above; and (d) any other Person which is required to be aggregated
with any Borrower pursuant to regulations promulgated under Section 414(o) of
the Internal Revenue Code.
"EURO" means the "euro", the official monetary unit of the
member nations of the European Monetary Union.
"EURO CASH COLLATERAL ACCOUNT" means an account designated as
such with respect to the Multicurrency Borrowers and established by the
Administrative Agent maintained with Citibank in London, England, for account
funds denominated in Euros.
"EURO LOANS" means Multicurrency Loans denominated in Euros
and Protective Advances denominated in Euros, and, in each case, advanced to a
Multicurrency Borrower.
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"EURO OVERDRAFT ACCOUNTS" means account number ▇▇▇▇▇▇▇
maintained with Citibank in London, England, in the name of the Netherlands
Borrower and account number ▇▇▇▇▇▇▇ maintained with Citibank in London, England,
in the name of the UK Borrower.
"EURO OVERDRAFT LIMIT" means $2,500,000, as such amount may be
adjusted pursuant to SECTION 2.01(c)(iii).
"EURO SUBFACILITY" means the subfacility of the Multicurrency
Facility for which Borrowings are only available in Euros.
"EVENT OF DEFAULT" means any of the occurrences set forth in
SECTION 11.01 after the expiration of any applicable grace period and the giving
of any applicable notice, in each case as expressly provided in SECTION 11.01.
"FAIR MARKET VALUE" means, with respect to any asset, the
value of the consideration obtainable in a sale of such asset in the open
market, assuming a sale by a willing seller to a willing purchaser dealing at
arm's length and arranged in an orderly manner over a reasonable period of time,
each having reasonable knowledge of the nature and characteristics of such
asset, neither being under any compulsion to act, and, if in excess of
$10,000,000, as determined (a) in good faith by the Board of Directors of the
applicable Borrower and (b) in an appraisal of such asset, provided that such
appraisal was performed relatively contemporaneously with such sale by an
independent third party appraiser and the basic assumptions underlying such
appraisal have not materially changed since the date thereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day in New York, New York, for the next
preceding Business Day) in New York, New York by the Federal Reserve Bank of New
York, or if such rate is not so published for any day which is a Business Day in
New York, New York, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"FINANCIAL COVENANT DEBT" means, with respect to NMHG Holding
and its Subsidiaries, at any time, without duplication, (a) all indebtedness,
obligations or other liabilities of such Persons (i) for borrowed money or
evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, (ii) in respect of obligations (A) to redeem, repurchase or
exchange for cash any Securities of any such Person or (B) to pay cash dividends
(or equivalent cash distributions) in respect of any Capital Stock (but only to
the extent such dividends have been declared), (iii) to pay the deferred
purchase price of property or services, except accounts payable and accrued
expenses arising in the ordinary course of business, (iv) in respect of the
principal component of Capital Lease Obligations, (v) which are Accommodation
Obligations required by GAAP to be classified as debt, or (vi) under conditional
sale or other title retention
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agreements relating to property purchased by any such Person; (b) all
indebtedness, obligations or other liabilities of such Persons or others secured
by a Lien on any property of any such Person, whether or not such indebtedness,
obligations or liabilities are assumed by any such Person, all as of such time;
(c) all preferred stock subject (upon the occurrence of any contingency or
otherwise) to mandatory redemption; and (d) to the extent required by GAAP to be
classified as debt, all contingent Contractual Obligations.
"FINANCIAL INSTITUTION" means any (a) Financing Affiliate, (b)
solely with respect to transactions in existence on the Closing Date, any
financial institution party to such transaction, (c) solely with respect to
Lease Finance Transactions to which the Australian Subsidiaries are a party, any
financial institution, (d) solely with respect to Lease Finance Transactions to
which the Foreign Subsidiaries are a party, General Electric Capital Corporation
pursuant to the Financing Agreement specified in CLAUSE (A) of the definition
thereof, and (e) in all other cases, any financial institution from time to time
approved by the Administrative Agent.
"FINANCIAL OFFICER" means, with respect to (a) any Borrower,
the chief executive officer, chief financial officer, the treasurer, the
controller or principal accounting officer of such Borrower, or any other
financial officer identified and reasonably acceptable to the Administrative
Agent, or (b) any Foreign Credit Party, a director.
"FINANCIAL STATEMENTS" means (a) statements of income and
retained earnings, statements of cash flow, and balance sheets, (b) such other
financial statements as NMHG Holding and its Subsidiaries shall routinely and
regularly prepare and (c) such other financial statements as the Administrative
Agent or the Requisite Lenders may from time to time reasonably specify.
"FINANCING AFFILIATE" means NFS or any other Affiliate of the
Borrowers party to a Financing Agreement pursuant to CLAUSE (b) of the
definition thereof.
"FINANCING AGREEMENTS" means the (a) International Operating
Agreement, dated April 15, 1998, between NMHG and General Electric Capital
Corporation and (b) Restated and Amended Joint Venture and Shareholders
Agreement, dated April 15, 1998, between NMHG and General Electric Capital
Corporation, as each of the same may be (i) renewed, amended or restated from
time to time on substantially the same terms or otherwise as consented to by the
Administrative Agent, such consent not to be unreasonably withheld or (ii)
replaced from time to time as consented to by the Administrative Agent, such
consent not to be unreasonably withheld.
"FISCAL YEAR" means the fiscal year of NMHG Holding, which
shall be the 12-month period ending on December 31 of each calendar year.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any
period, the ratio of (a) Adjusted EBITDA for such period MINUS Capital
Expenditures for such period to (b) Scheduled Principal Payments for such period
PLUS Consolidated Interest Expense for such period.
"FIXED RATE" means, with respect to any Interest Period
applicable to a Borrowing of Fixed Rate Loans under the applicable Credit
Facility denominated in the applicable currency, an interest rate per annum
equal to (a) the Domestic LIBO Rate with respect to Fixed Rate Loans denominated
in Dollars under the Domestic Facility and (b) the Multicurrency LIBO Rate, with
respect to Fixed Rate Loans
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denominated in a Specified Foreign Currency under the Multicurrency Facility, in
each case in effect on the relevant Fixed Rate Determination Date.
"FIXED RATE AFFILIATE" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Fixed Rate Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrowers
and the Administrative Agent.
"FIXED RATE DETERMINATION DATE" means, with respect to a
Borrowing of Fixed Rate Loans (a) that are Domestic Loans, the second Business
Day prior to the first day of the Interest Period for any Borrowing and (b) that
are Multicurrency Loans, the fourth Business Day prior to the first day of the
Interest Period for any Borrowing.
"FIXED RATE INTEREST PAYMENT DATE" means (a) with respect to
any Fixed Rate Loan, the last day of each Interest Period applicable to such
Loan and (b) with respect to any Fixed Rate Loan having an Interest Period in
excess of three (3) calendar months, the last day of each three (3) calendar
month interval during such Interest Period.
"FIXED RATE LENDING OFFICE" means, with respect to any Lender,
the office or offices of such Lender (if any) set forth below such Lender's name
under the heading "Fixed Rate Lending Office" on the signature pages hereof or
on the Assignment and Acceptance by which it became a Lender or such office or
offices of such Lender as it may from time to time specify by written notice to
the Borrowers and the Administrative Agent.
"FIXED RATE LOANS" means all Loans under the Domestic Facility
and the Multicurrency Facility denominated in Dollars or a Specified Foreign
Currency, respectively, outstanding which bear interest at a rate determined by
reference to the Fixed Rate applicable to such currency as provided in SECTION
4.01(a).
"FLOATING RATE" means, for any period applicable to any
Floating Rate Loan, a fluctuating interest rate per annum as shall be in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest one quarter of one
percent (0.25%) or, if there is no nearest one quarter of one percent
(0.25%), to the next higher one quarter of one percent (0.25%)) of (i)
one half of one percent (0.50%) per annum PLUS (ii) the rate per annum
obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market
banks, such three-week moving average being determined weekly on each
Monday (or, if such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday
(or, if such day is not a Business Day, on the next preceding Business
Day) by Citibank on the
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basis of such rates reported by certificate of deposit dealers to, and
published by, the Federal Reserve Bank of New York, or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three (3) New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the
Federal Reserve Board for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank in respect of liabilities
consisting of or including (among other liabilities) three-month Dollar
nonpersonal time deposits in the United States, PLUS (iii) the average
during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the United
States.
"FLOATING RATE LOANS" means all Loans denominated in Dollars
which bear interest at a rate determined by reference to the Floating Rate as
provided in SECTION 4.01(a).
"FOREIGN ACCOUNT DEBTOR" is defined in SECTION 8.10(b).
"FOREIGN COLLATERAL" means all Collateral of the Foreign
Credit Parties.
"FOREIGN CREDIT PARTY" means any Multicurrency Borrower or any
Foreign Guarantor, and "FOREIGN CREDIT PARTIES" means, collectively, the
Multicurrency Borrowers and the Foreign Guarantors.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees or former employees of the Borrowers or any of
their Subsidiaries or any employee benefit plan in relation to which the
Borrowers or any of their Subsidiaries has a liability or potential liability,
but which is not covered by ERISA pursuant to Section 4(b)(4) of ERISA.
"FOREIGN GUARANTIES" means collectively, and "FOREIGN
GUARANTY" means individually, (a) each Foreign Guaranty dated as of the Closing
Date duly executed and delivered to the Administrative Agent by a Foreign
Guarantor substantially in the form and substance of EXHIBIT G-3 attached
hereto, and (b) each Foreign Guaranty executed and delivered by a Foreign
Subsidiary to the Administrative Agent pursuant to SECTION 9.07, as each of the
same may be further amended, supplemented or otherwise modified from time to
time.
"FOREIGN GUARANTOR" means each Foreign Subsidiary (other than
a Multicurrency Borrower) (a) which is the direct parent of a Multicurrency
Borrower or a Subsidiary of any Multicurrency Borrower, as designated on
SCHEDULE 1.01.2, and (b) required under SECTION 9.07 to be a party to a Foreign
Guaranty.
"FOREIGN PENSION PLAN" means any Foreign Employee Benefit Plan
which is a pension plan as defined in Section 3(2) of ERISA but which is not
covered by ERISA pursuant to Section 4(b)(4) of ERISA and which under applicable
local law is required to be funded
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through a trust or other funding vehicle other than a trust or funding vehicle
maintained by a foreign Governmental Authority.
"FOREIGN SECURITY AGREEMENTS" means, inter alias, (a) the
English Deed of Charge, (b) the Deed of Pledge of Assets by and between the
Netherlands Borrower and the Administrative Agent, (c) the Deed of Pledge of
Receivables by and between the Netherlands Borrower and the Administrative
Agent, (d) each other security agreement dated as of, or the Closing Date duly
executed and delivered to the Administrative Agent by a Foreign Credit Party,
and (e) each other security agreement executed and delivered by a Foreign
Subsidiary pursuant to SECTION 9.07, as each of the same may be amended,
supplemented or otherwise modified from time to time.
"FOREIGN SUBSIDIARY" means any Subsidiary of NMHG Holding that
is not a Domestic Subsidiary.
"FOREIGN WORKING CAPITAL GUARANTY" means the Guaranty dated as
of the Closing Date duly executed and delivered to Citibank by the Borrowers
substantially in the form of EXHIBIT I attached hereto, as the same may be
amended, supplemented or otherwise modified from time to time.
"FUND" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans of the type contemplated by this Agreement and similar
extensions of credit in the ordinary course of its business.
"FUNDING ACCOUNT" means each account of the Administrative
Agent into which fundings of Loans shall be made, as notified to the Lenders
from time to time.
"FUNDING DATE" means, with respect to any Loan, the date of
the funding of such Loan.
"GAAP" means generally accepted accounting principles (in the
United States except as otherwise specified in this Agreement) set forth in the
opinions and pronouncements of the Accounting Principles Board, the American
Institute of Certified Public Accountants and the Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"GENERAL INTANGIBLES" means, with respect to any Person, all
of such Person's present and future general intangibles (as defined in the
Uniform Commercial Code or in any similar statute of England and Wales,
Scotland, Northern Ireland, any other relevant jurisdiction, or any political
subdivision thereof).
"GOVERNMENTAL AUTHORITY" means any nation or government, any
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, regional, local or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
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"GUARANTOR" means any Domestic Guarantor or Foreign Guarantor,
and "GUARANTORS" means the Domestic Guarantors and Foreign Guarantors
collectively.
"HITFL" is defined in SECTION 5.01(n).
"HITFL CONTRACT" means that certain letter agreement dated
July 6, 1998, between HITFL and NMHG, as supplemented by that certain Schedule
dated December 4, 2000.
"HOLDER" means any Person entitled to enforce any of the
Obligations, whether or not such Person holds any evidence of Indebtedness,
including, without limitation, the Administrative Agent, each Lender and each
Issuing Bank.
"IMPAIRMENT ADJUSTMENT" means, for any period, impairment loss
as determined in accordance with the Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 144.
"INCLUDED UK WITHHOLDING TAXES" is defined in SECTION 3.04(a).
"INDEBTEDNESS" means, as applied to any Person, at any time,
without duplication, (a) all indebtedness, obligations or other liabilities of
such Person (i) for borrowed money or evidenced by debt securities, debentures,
acceptances, notes or other similar instruments, and any past due accrued
interest, fees and charges relating thereto, (ii) in respect of obligations (A)
to redeem, repurchase or exchange for cash any Securities of such Person or (B)
to pay cash dividends (or equivalent cash distributions) in respect of any
Capital Stock (but only to the extent such dividends have been declared), (iii)
with respect to letters of credit issued for such Person's account, (iv) to pay
the deferred purchase price of property or services, except accounts payable and
accrued expenses arising in the ordinary course of business, (v) in respect of
Capital Leases, (vi) which are Accommodation Obligations, (vii) under warranties
and indemnities; or (viii) under conditional sale or other title retention
agreements relating to property purchased by such Person; (b) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any property of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by such Person, all as of such time; (c) the fair market
value, as determined in accordance with GAAP, of all indebtedness, obligations
or other liabilities of such Person in respect of Interest Rate Contracts and
Currency Agreements, net of liabilities owed to such Person by the
counterparties thereon; (d) all preferred stock subject (upon the occurrence of
any contingency or otherwise) to mandatory redemption; and (e) all contingent
Contractual Obligations with respect to any of the foregoing.
"INDEMNIFIED MATTER" is defined in SECTION 14.03.
"INDEMNITEE" is defined in SECTION 14.03.
"INDEPENDENT QUALIFIED PARTY" means an investment banking
firm, accounting firm or appraisal firm of national standing; provided, however,
that such firm is not an Affiliate of any Borrower.
"ING WORKING CAPITAL LINE" means that certain unsecured
working capital facility in a principal amount not to exceed 7,000,000 Euros
provided by ING Bank N.V. to the
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Netherlands Borrower pursuant to that certain letter dated January 14, 2000,
between ING Bank N.V. and the Netherlands Borrower, as amended by that certain
letter dated November 6, 2000, as amended by that certain release dated on or
before the Closing Date, in form and substance satisfactory to the
Administrative Agent, as the same may be refinanced or replaced, provided that
such refinancing or replacement is, taken as a whole, on terms no less favorable
to the Netherlands Borrower than the terms of, the ING Working Capital Line
prior to such replacement or refinancing; provided, further that if such
refinancing or replacement is in an aggregate principal amount greater than
7,000,000 Euros, any excess amounts shall only be permitted as allowed in
accordance with SECTION 9.01(q).
"INITIAL PROJECTIONS" means the financial projections
presented to the Administrative Agent and the Lenders on April 5, 2002, with
respect to NMHG Holding and its Subsidiaries delivered by NMHG Holding to the
Administrative Agent on or prior to the Closing Date, attached as EXHIBIT J
hereto.
"INTER-BORROWER INDEBTEDNESS" is defined in SECTION 13.08.
"INTERBANK RATE" means, for any period, (a) in respect of
Loans denominated in Dollars, the Federal Funds Rate, and (b) in respect of
Loans denominated in a Specified Foreign Currency, the Overdraft Rate.
"INTEREST PERIOD" is defined in SECTION 4.02(a).
"INTEREST RATE CONTRACT" means any interest rate exchange,
swap, collar, future, protection, cap, floor or similar agreements providing
interest rate protection.
"INTEREST RATE CONTRACT EXPOSURE" means, with respect to any
Borrower at any time and from time to time, an aggregate amount equal to the
then pre-settlement risk of such Borrower (determined by the Administrative
Agent in accordance with the Administrative Agent's (or its applicable
Affiliate's) customary practices) of each Interest Rate Contract entered into by
such Borrower and the Administrative Agent (or an Affiliate of the
Administrative Agent) on or after the Closing Date for the remaining term and
volume of such Interest Rate Contract, disregarding (subject to the immediately
succeeding sentence) any such Interest Rate Contract with respect to which the
pre-settlement risk of such Borrower at such time is positive. If (a) such
Borrower is a party to more than one Interest Rate Contract with the same
counterparty and (b) such Borrower and such counterparty have entered into a
netting agreement in form and substance satisfactory to the Administrative Agent
with respect to such Interest Rate Contracts, then the pre-settlement risk of
such Borrower and such counterparties at such time (determined by the
Administrative Agent in accordance with the Administrative Agent's (or its
applicable Affiliate's) customary practices) under such Interest Rate Contracts
shall be netted against one another in determining such Borrower's aggregate
Interest Rate Contract Exposure (it being understood and agreed that if any such
netting of Interest Rate Contracts results in a positive net pre-settlement risk
to such Borrower, such net pre-settlement risk shall be disregarded in the
calculation of such Borrower's aggregate Interest Rate Contract Exposure).
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"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, any
successor statute and any regulations or guidance promulgated thereunder.
"INVENTORY" means, with respect to any Person, all of such
Person's present and future (a) inventory (as defined in the Uniform Commercial
Code or in any similar statute of England and Wales, Scotland, Northern Ireland
or any other relevant jurisdiction, or any political subdivision thereof)
(including unbilled accounts receivable), (b) goods, merchandise and other
personal Property furnished or to be furnished under any contract of service or
intended for sale or lease, and all goods consigned by such Person and all other
items which have previously constituted Equipment but are then currently being
held for sale or lease in the ordinary course of such Person's business, (c) raw
materials, work-in-process and finished goods, (d) materials and supplies of any
kind, nature or description used or consumed in such Person's business or in
connection with the manufacture, production, packing, shipping, advertising,
finishing or sale of any of the Property described in CLAUSES (A) through (D)
above, (e) goods in which such Person has a joint or other interest to the
extent of such Person's interest therein or right of any kind (including,
without limitation, goods in which such Person has an interest or right as
consignee), and (f) goods which are returned to or repossessed by such Person;
in each case whether in the possession of such Person, a bailee, a consignee, or
any other Person for sale, storage, transit, processing, repair, use or
otherwise, and any and all documents for or relating to any of the foregoing.
"INVENTORY ADVANCE RATE" means:
(a) with respect to the Eligible Domestic Inventory, at no
time greater than 80.0%, as each such rate may be increased or decreased from
time to time by the Administrative Agent in its sole discretion, exercised in
accordance with the Administrative Agent's customary practices, with respect to
all or any portion of any category of Eligible Domestic Inventory (as set forth
on the Domestic Borrowing Base Certificate), with any change in such rates to be
effective five (5) Business Days after written notice thereof from the
Administrative Agent to any Borrower; provided, however, that the Administrative
Agent may increase such rates above the Original Inventory Advance Rates based
on an independent third party appraisal of the Inventory at the time of such
increase but in no event in excess of 85.0% of the net orderly liquidation value
for such Inventory as set forth in the most recent independent third party
appraisal obtained by the Administrative Agent;
(b) with respect to the Eligible Foreign Inventory, at no time
greater than 75.0%, as each such rate may be increased or decreased from time to
time by the Administrative Agent in its sole discretion, exercised in accordance
with the Administrative Agent's customary practices, with respect to all or any
portion of any category of Eligible Foreign Inventory (as set forth on the
Multicurrency Borrowing Base Certificate), with any change in such rates to be
effective five (5) Business Days after written notice thereof from the
Administrative Agent to any Borrower; provided, however, that the Administrative
Agent may increase such rates above the Original Inventory Advance Rates based
on an independent third party appraisal of the Inventory at the time of such
increase but in no event in excess of 80.0% of the net orderly liquidation value
for such Inventory as set forth in the most recent independent third party
appraisal obtained by the Administrative Agent;
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and, provided, further, that the Administrative Agent shall not increase any
such rates more than five percentage points above the Original Inventory Advance
Rates without the consent of all of the Lenders.
"INVESTMENT" means, with respect to any Person, (a) any
purchase or other acquisition by that Person of Securities, or of a beneficial
interest in Securities, issued by, any other Person, (b) any purchase by that
Person of all or a significant part of the assets of a business conducted by
another Person, (c) any loan, advance (other than prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business), or capital contribution by that Person to any
other Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business and
(d) any accounts (including, without limitation, any such deposit, cash
collateral and investment accounts) with banks or other financial institutions.
The amount of any Investment shall be the original cost of such Investment, plus
the cost of all additions thereto less the amount of any return of capital or
principal to the extent such return is in cash with respect to such Investment
without any adjustments for increases or decreases in value or write-ups,
write-downs or write-offs with respect to such Investment.
"IRS" means the Internal Revenue Service and any Person
succeeding to the functions thereof.
"ISSUE" means, with respect to any Letter of Credit, either to
issue, or extend the expiry of, or renew, or increase the amount of, such Letter
of Credit, and the terms "ISSUED" or "ISSUANCE" shall have corresponding
meanings.
"ISSUING BANK" means Citibank or an Affiliate of Citibank who
has agreed to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to SECTION 2.02.
"JOINT ARRANGER" is defined in the preamble.
"JOINT BOOKRUNNER" is defined in the preamble.
"KNOWLEDGE" (and the related term "KNOW") means, with respect
to any Borrower's knowledge, the knowledge of a Financial Officer of such
Borrower.
"LEASE FINANCE TRANSACTION" means a transaction under which:
(a) a Borrower or Borrower Subsidiary sells a lift truck to a Financial
Institution, (b) such Financial Institution, as lessor, enters into an Operating
Lease with respect to such lift truck with a Borrower or Borrower Subsidiary, as
lessee, and (c) such Borrower or Borrower Subsidiary, as the case may be, as
lessor, enters into an Operating Lease with respect to such lift truck with a
customer, as lessee.
"LEASES" means those leases, tenancies or occupancies entered
into by any Borrower or any of the Borrowers' respective Subsidiaries, as
tenant, sublessor or sublessee either directly or as the successor in interest
to any Borrower or any Affiliates of Borrower.
"LENDER" means, (a) as of the Closing Date, CUSA, Citibank,
CSFB and each other institution which is a signatory hereto, and (b) at any
other given time each other institution
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which is a party hereto as a Lender, whether as a signatory hereto or pursuant
to an Assignment and Acceptance.
"LETTER AGREEMENT" means the fee letter dated as of April 3,
2002, from CNAI, SSB and CSFB and accepted by the Domestic Borrowers.
"LETTER OF CREDIT" means any Commercial Letter of Credit or
Standby Letter of Credit Issued for the account of any Borrower pursuant to
SECTION 2.02.
"LETTER OF CREDIT FEE" is defined in SECTION 4.03(a).
"LETTER OF CREDIT OBLIGATIONS" means, at any particular time
with respect to any Borrower, the sum of (a) all outstanding Reimbursement
Obligations of such Borrower, PLUS (b) the aggregate undrawn face amount of all
outstanding Letters of Credit issued for the account of such Borrower
(including, without limitation, any Letter of Credit with respect to which,
notwithstanding the termination thereof pursuant to its terms, the beneficiary
thereunder has a right to make drawings thereunder in accordance with applicable
law), PLUS (c) the aggregate face amount of all Letters of Credit requested by
such Borrower but not yet issued (unless the request for an unissued Letter of
Credit has been denied pursuant to SECTION 2.02). For purposes of determining
the amount of Letter of Credit Obligations (or any component thereof) in respect
of any Letter of Credit which is denominated in a Specified Foreign Currency,
such amount shall equal the Dollar Equivalent of the amount of such currency at
the time of determination thereof.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" means, with respect
to a Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or several documents,
taken together) as the Issuing Bank from which the Letter of Credit is requested
may employ in the ordinary course of business for its own account, with such
modifications thereto as may be agreed upon by the Issuing Bank and the relevant
Borrower and as are not materially adverse (in the reasonable judgment of the
Issuing Bank) to the interests of the Lenders; provided, however, in the event
of any conflict between the terms hereof and of any Letter of Credit
Reimbursement Agreement, the terms hereof shall control.
"LETTER OF CREDIT SUBLIMIT" means, at any particular time (a)
with respect to the Domestic Facility, $35,000,000, and (b) with respect to the
Multicurrency Facility, $10,000,000.
"LEVERAGE RATIO" means, (a) as of June 30, 2002, the ratio of
(i) Financial Covenant Debt at such date to (ii) two (2) times Adjusted EBITDA
for the two-fiscal-quarter period then ending, (b) as of September 30, 2002, the
ratio of (i) Financial Covenant Debt at such date to (ii) four-thirds (4/3) of
Adjusted EBITDA for the three-fiscal-quarter period then ending and (c) as of
the last day of each fiscal quarter thereafter, the ratio of (i) Financial
Covenant Debt at such date to (ii) Adjusted EBITDA for the four-fiscal-quarter
period then ending.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, punitive damages, economic damages,
consequential damages, treble damages, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs and fees associated
with any investigation, feasibility or Remedial Action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent,
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past, present or future, including interest, if any, thereon, including, without
limitation, those arising from personal injury, death, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, deposit arrangement,
security interest, encumbrance, lien (statutory or other, and including, without
limitation, any Environmental Lien), preference, priority, title retention or
other security agreement or preferential arrangement (including, without
limitation, any negative pledge arrangement and any agreement to provide equal
and ratable security) of any kind or nature whatsoever in respect of any
property of a Person intended to assure payment of any Indebtedness, obligation
or other liability, whether granted voluntarily or imposed by law, and includes
the interest of a lessor under a Capital Lease or under any financing lease
having substantially the same economic effect as any of the foregoing and the
filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to the Uniform Commercial Code or
any similar statute of England and Wales, Scotland, Northern Ireland, the
Netherlands or any other relevant jurisdiction, or any political subdivision
thereof), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction, but does not
include the interest of a lessor under an Operating Lease.
"LIFT TRUCK FINANCING GUARANTEE" means guarantees or
repurchase or recourse obligations of a Credit Party, incurred in the ordinary
course of business consistent with past practice, of Indebtedness incurred by a
dealer or customer of a dealer, for the purchase or lease of lift trucks
substantially all of which are manufactured or sold by a Credit Party, the
proceeds of which Indebtedness is used by such dealer or customer primarily to
pay the purchase price of such lift trucks and any related reasonable fees and
expenses (including financing fees); provided, however, that (a)(i) with respect
to lift trucks located in the United States, the Indebtedness so guaranteed is
secured by a perfected first priority Lien on such lift trucks in favor of the
holder of Indebtedness or a Credit Party and (ii) with respect to lift trucks
located outside of the United States, the Indebtedness so guaranteed is secured
by a Lien or other similar security interest to the extent commercially
practicable in the jurisdiction in which such lift trucks are located and (b) if
any Credit Party is required to make payment with respect to such guaranty, such
Credit Party will have the right to either (i) the title to such lift trucks,
(ii) a valid assignment of a perfected first priority Lien or other similar
security interest in the lift trucks or (iii) the net proceeds of any resale of
such lift trucks.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Domestic
Borrower Guaranty, the Multicurrency Borrower Guaranty, each Foreign Guaranty,
the Security Documents, the Letter Agreement, the Letter of Credit Reimbursement
Agreements, the Foreign Working Capital Guaranty, the Collection Account
Agreements, the Multicurrency Concentration Accounts Agreements, the collateral
assignments of the Receivables Sale Agreements, the collateral assignments of
the agreements described in SECTION 9.02(e)(i), and the other instruments,
agreements and written Contractual Obligations executed or delivered pursuant to
SECTION 5.01(a) of this Agreement by any Credit Party or Pledged Entity, any
Currency Agreements to which the Administrative Agent or any Affiliate of the
Administrative Agent is a party, any Interest Rate Contracts to which the
Administrative Agent or any Affiliate of the Administrative Agent is a party,
all other instruments, agreements and written Contractual
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Obligations between any Credit Party or Pledged Entity, on the one hand, and any
of the Administrative Agent, the Lenders or the Issuing Bank, on the other hand,
in each case delivered to either the Administrative Agent, such Lender or such
Issuing Bank before, on or after the Closing Date pursuant to or in connection
with the transactions (including, without limitation, the cash management
arrangements) contemplated by this Agreement, and all other agreements or
instruments executed and delivered or to be executed and delivered pursuant
hereto or thereto or in connection herewith or therewith or any of the
transactions contemplated hereby or thereby, as any of the same may be amended,
supplemented or otherwise modified from time to time.
"LOANS" means the Revolving Loans, the Swing Loans and the
Overdraft Loans.
"LOCKBOXES" means, collectively, the lockboxes established at
the Collection Account Banks for collection of payments in respect of
Receivables or other Collateral.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon
(a) the condition (financial or otherwise), performance, properties or prospects
of any Borrower, or the Borrowers and their Subsidiaries taken as a whole, (b)
the ability of any of the Credit Parties to perform their respective obligations
under the Loan Documents or (c) the ability of the Lenders, the Issuing Bank or
the Administrative Agent to enforce any of the Loan Documents.
"MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION" is defined in
SECTION 8.10(b).
"MAXIMUM CREDIT AMOUNT" means, at any particular time, an
amount equal to:
(i) with respect to the Domestic Facility, (A) the lesser of
(1) the Domestic Commitment in effect at such time and (2) the Domestic
Borrowing Base, MINUS (B) the amount of any Availability Reserves
applicable to the Domestic Facility in effect at such time, MINUS (C)
the aggregate amount of the Currency Agreement Exposure of the Domestic
Borrowers at such time, MINUS (D) the aggregate amount of the Interest
Rate Contract Exposure of the Domestic Borrowers at such time;
(ii) with respect to the Multicurrency Facility, (A) the
lesser of (1) the Multicurrency Commitment in effect at such time and
(2) the Multicurrency Borrowing Base at such time, minus (B) the amount
of any Availability Reserves applicable to the Multicurrency Facility
in effect at such time, MINUS (C) the amount of the Currency Agreement
Exposure of the Multicurrency Borrowers at such time, MINUS (D) the
amount of the Interest Rate Contract Exposure of the Multicurrency
Borrowers at such time; and
(iii) with respect to each Subfacility, the applicable
Subfacility Commitment in effect at such time.
"MAXIMUM SWING LOAN AMOUNT" is defined in SECTION 2.01(b).
"MB CONTRIBUTION AMOUNT" is defined in SECTION 13.06(b).
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"MIS" means computerized management information system for
recording and maintenance of information regarding purchases, sales, aging,
categorization, and locations of Inventory, creation and aging of Receivables,
and accounts payable (including agings thereof).
"MULTICURRENCY BORROWER GUARANTY" means (a) the Multicurrency
Borrower Guaranty dated as of the Closing Date duly executed and delivered to
the Administrative Agent by each of the Domestic Credit Parties with respect to
the Multicurrency Obligations, substantially in the form and substance of
EXHIBIT G-2 attached hereto, and (b) each Multicurrency Borrower Guaranty,
substantially in the form and substance of EXHIBIT G-2 attached hereto, executed
and delivered by a Domestic Subsidiary to the Administrative Agent pursuant to
SECTION 9.07, as each of the same may be further amended, supplemented or
otherwise modified from time to time.
"MULTICURRENCY BORROWERS" means the UK Borrower and the
Netherlands Borrower.
"MULTICURRENCY BORROWING BASE" means, as of any date of
determination, with respect to the Multicurrency Borrowers, an amount equal to
the sum of:
(a) up to 80.0% (or such other higher percentage as agreed to
by all Lenders in their sole discretion) of the Collateral Value of Eligible
Foreign Receivables PLUS
(b) the least of:
(i) the Multicurrency Inventory Sublimit,
(ii) up to 60.0% of the Collateral Value of the
aggregate Eligible Foreign Inventory, and
(iii) the sum of the products of the Inventory
Advance Rate multiplied by the Collateral Value of each
category of Eligible Foreign Inventory set forth on the
Multicurrency Borrowers' Borrowing Base Certificate, PLUS
(c) the Dollar Equivalent of cash, overnight investments and
marketable direct obligations issued or unconditionally guaranteed by
the United States government and backed by the full faith and credit of
the United States government with a tenor of less than one year
deposited by or on behalf of any Multicurrency Borrower and held from
time to time in the Multicurrency Concentration Accounts or
Multicurrency Cash Collateral Accounts, in each case subject to the
legal or equitable Lien of the Administrative Agent.
For purposes of this definition, the Collateral Values of
Inventory shall be determined after deduction of all Eligibility Reserves then
effective with respect to such items.
"MULTICURRENCY CASH COLLATERAL ACCOUNTS" means the Euro Cash
Collateral Account and the Sterling Cash Collateral Account.
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"MULTICURRENCY COMMITMENT" means, as to each Multicurrency
Lender, the commitment to make Multicurrency Loans (including Multicurrency
Loans required to be made pursuant to SECTION 2.01(h) and 2.02(e)(ii) to the
Multicurrency Borrowers), to participate in Letters of Credit Issued for the
account of the Multicurrency Borrowers, and to participate in Domestic Loans and
fund such participations, in each case pursuant to SECTION 2.03, in an aggregate
principal amount (after giving effect to all participations purchased by and
from such Multicurrency Lender) outstanding not to exceed the amount on the
Closing Date set forth opposite such Multicurrency Lender's name on SCHEDULE
1.01.1 under the caption "Multicurrency Commitment," as such amount may be
reduced or modified pursuant to this Agreement; provided, however, at no time
shall the aggregate Multicurrency Commitments of all Multicurrency Lenders
exceed the Dollar Equivalent of $70,000,000 less any permanent reduction made
pursuant to SECTION 3.01; provided, further, at the Closing Date the aggregate
Multicurrency Commitments shall equal $55,000,000; provided, further, at no time
shall the aggregate Multicurrency Commitments and the aggregate Domestic
Commitments exceed $175,000,000.
"MULTICURRENCY CONCENTRATION ACCOUNTS" means (a) with respect
to deposits denominated in Dollars, that certain account of the UK Borrower,
number 10124648 maintained with Citibank in London, England, (b) with respect to
deposits denominated in Euros, that certain account of the UK Borrower, number
10124664 maintained with Citibank in London, England, and (c) with respect to
deposits in Sterling, that certain account of the UK Borrower, number 102456
maintained with Citibank in London, England, in each case, operated in
accordance with the Multicurrency Concentration Accounts Agreements.
"MULTICURRENCY CONCENTRATION ACCOUNTS AGREEMENTS" means (a)
that certain Multicurrency Concentration Accounts Agreement dated as of the
Closing Date among Citibank in London, England and the UK Borrower, as amended,
restated, supplemented or otherwise modified from time to time, (b) that certain
Multicurrency Concentration Accounts Acknowledgment of Charge and Agreement
dated as of the Closing Date among Citibank in London, England and the
Administrative Agent, as amended, restated, supplemented or otherwise modified
from time to time, (c) that certain Multicurrency Concentration Accounts Charge
dated as of the Closing Date among the UK Borrower and the Administrative Agent,
as amended, restated, supplemented or otherwise modified from time to time.
"MULTICURRENCY FACILITY" means the facility provided by (a)
the Multicurrency Lenders to make Multicurrency Loans to the Multicurrency
Borrowers, (b) the Overdraft Line Bank to make Overdraft Loans to the
Multicurrency Borrowers and (c) the Issuing Bank to Issue Letters of Credit for
the account of the Multicurrency Borrowers, in each case on and after the
Closing Date in accordance with the terms and conditions contained in this
Agreement and includes the Euro Subfacility and the Sterling Subfacility.
"MULTICURRENCY INVENTORY SUBLIMIT" means $17,500,000.
"MULTICURRENCY LENDER" means each Lender designated as such on
SCHEDULE 1.01.1 under the caption "Multicurrency Commitment" and each other
institution which is party hereto as a Multicurrency Lender pursuant to an
Assignment and Acceptance.
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"MULTICURRENCY LIBO RATE" means, with respect to any Interest
Period applicable to a Borrowing of Fixed Rate Loans under the Multicurrency
Facility denominated in a Specified Foreign Currency:
(i) the interest rate per annum equal to (A) the offered
quotations for deposits in the Specified Foreign Currency of the
relevant Borrowing for a period comparable to the relevant Interest
Period which appears on Dow ▇▇▇▇▇ Markets Service (formerly known as
Telerate) Page 3750 or Dow ▇▇▇▇▇ Markets Service Page 3740 (as
appropriate) (or such other page as may replace Page 3750 or Page 3740,
as applicable, or the service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for
deposits in the Specified Foreign Currency concerned) at or about 11:00
a.m. (London time) on the applicable Fixed Rate Determination Date; or
(B) if no such interest rate determined under clause (A) is available,
the arithmetic mean (rounded upward to the nearest one-sixteenth of one
percent (0.0625%)) of the interest rates, as supplied to Citibank at
its request, quoted by the "London Reference Banks" to leading banks in
the London interbank market at or about 11:00 a.m. (London time) on the
applicable Fixed Rate Determination Date for the offering of deposits
in the Specified Foreign Currency of the relevant Borrowing for a
period comparable to the relevant Interest Period; PLUS ----
(ii) in the case of Fixed Rate Loans denominated in Sterling,
the amount (expressed as a percentage) of "associated reserve costs"
being imposed by the Bank of England on the relevant Fixed Rate
Determination Date. The Multicurrency LIBO Rate shall be adjusted
automatically on and as of the effective date of any change in the
amount of associated reserve costs so imposed.
"MULTICURRENCY LOAN" is defined in SECTION 2.01(a).
"MULTICURRENCY LOAN NOTES" means one or more promissory notes
payable to the Multicurrency Lenders evidencing the Multicurrency Borrowers'
Obligations to repay the Multicurrency Loans, substantially in the form and
substance of EXHIBIT Q-2 attached hereto.
"MULTICURRENCY OBLIGATIONS" means the Obligations of the
Foreign Credit Parties under the Multicurrency Facility.
"MULTICURRENCY PAYMENT ACCOUNT" means that account maintained
at Citibank in London, England, in the name of the Administrative Agent, into
which payments in respect of Obligations shall be made, as set forth in the
Multicurrency Concentration Accounts Agreements.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by any Borrower or any ERISA Affiliate.
"NET CASH PROCEEDS OF ISSUANCE OF EQUITY SECURITIES OR
INDEBTEDNESS" means (a) net cash proceeds (including cash, equivalents readily
convertible into cash, and such proceeds of any notes received as consideration
or any other non-cash consideration) received by any
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Credit Party or any direct Subsidiary of any Borrower at any time after the
Closing Date on account of the issuance of (i) equity Securities of any Borrower
or any of its Subsidiaries (other than Capital Stock of a Subsidiary issued to
any Credit Party) or (ii) Indebtedness (other than Indebtedness permitted under
SECTION 9.01 (other than SECTION 9.01(m)) of any Credit Party, or any direct
Subsidiary of any Borrower, in each case net of all transaction costs and
underwriters' discounts with respect thereto; and (b) proceeds received by any
Borrower at any time after the Closing Date as a contribution to its capital on
account of the issuance of equity Securities of such Borrower.
"NET CASH PROCEEDS OF SALE" means, (a) proceeds received by
any Credit Party, or any direct Subsidiary of any Borrower in cash (including
cash, equivalents readily convertible into cash, and such proceeds of any notes
received as consideration of any other non-cash consideration) from the sale,
assignment or other disposition of any Property (including any Sale and
Leaseback Transaction but not the lease or license of any Property), other than
sales permitted under CLAUSES (a), (c), (d), (e) and (f) of SECTION 9.02, net of
(i) the costs of sale, assignment or other disposition, (ii) any income,
franchise, transfer or other tax liability arising from such transaction and
(iii) amounts applied to the repayment of Indebtedness (other than the
Obligations) secured by a Lien permitted by SECTION 9.03 on the asset disposed
of, if such net proceeds arise from any individual sale, assignment or other
disposition or from any group of related sales, assignments or other
dispositions; (b) proceeds which constitute or are deemed "Net Available Cash"
from an "asset Disposition" (in each case as defined by the Senior Note
Indenture); and (c) to the extent provided in SECTION 8.13), proceeds of
insurance on account of the loss of or damage to any such Property or
Properties, and payments of compensation for any such Property or Properties
taken by condemnation or eminent domain.
"NETHERLANDS BORROWER" is defined in the preamble.
"NFS" means NMHG Financial Services, Inc., a Delaware
corporation in which NMHG holds a minority interest.
"NMHG" is defined in the preamble.
"NMHG HOLDING" is defined in the preamble.
"NMHG MAURITIUS ENTITIES" means NMHG Mauritius, Shanghai
Hyster Forklift Ltd., Shanghai Hyster International Trading Co., Ltd. and Hyster
(H.K.) Limited.
"NON-COLLATERAL OPERATING LEASE" is defined in SECTION
9.10(b).
"NON PRO RATA FUNDING" is defined in SECTION 3.02(b)(iv).
"NON-USD CURRENCY" is defined in SECTION 14.21(a).
"NOTES" means, collectively, the Domestic Loan Notes, the
Multicurrency Loan Notes, the Swing Loan Note, and all amendments thereto,
replacements thereof and substitutions therefor.
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"NOTICE OF BORROWING" means a notice substantially in the form
of (a) EXHIBIT K-1 attached hereto for Borrowings under the Domestic Facility
and (b) EXHIBIT K-2 attached hereto for Borrowings under the Multicurrency
Facility.
"NOTICE OF CONTINUATION/CONVERSION" means a notice
substantially in the form of EXHIBIT L attached hereto.
"NOTICE OF LETTER OF CREDIT ISSUANCE" means a notice
substantially in the form of (a) EXHIBIT M-1 attached hereto for Letters of
Credit Issued under the Domestic Facility and (b) EXHIBIT M-2 attached hereto
for Letters of Credit Issued under the Multicurrency Facility.
"NPL" is defined in SECTION 6.01(o).
"OBLIGATIONS" means, to the extent arising hereunder, under
the Notes or under any other Loan Document, all Loans, all Overdraft Loans,
Protective Advances, advances, debts, liabilities, obligations, covenants and
duties owing by any Credit Party to the Administrative Agent, any Lender, the
Issuing Bank, any Affiliate of the Administrative Agent, any Lender or the
Issuing Bank, or any Person entitled to indemnification pursuant to SECTION
14.03, of any kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of money,
whether arising (a) under or in connection with (i) a Currency Agreement with
the Administrative Agent, any Lender or any Affiliate of the Administrative
Agent or any Lender, (ii) an Interest Rate Contract with the Administrative
Agent, any Lender or any Affiliate of the Administrative Agent or any Lender, or
(iii) the Concentration Accounts, the Cash Collateral Accounts or any cash
management services provided by the Administrative Agent or any Affiliate of the
Administrative Agent, including, without limitation, those described in SECTION
3.06(d), or (b) by reason of (i) an extension of credit, (ii) opening or
amendment of a Letter of Credit or payment of any draft drawn thereunder, (iii)
loan, (iv) guaranty or (v) indemnification or (c) in any other manner, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest, charges, foreign
exchange costs, expenses, fees, attorneys' fees and disbursements and any other
sum chargeable to any Credit Party hereunder or under any other Loan Document
and the obligations of the Borrowers to cash collateralize the Letter of Credit
Obligations.
"OBLIGEE" and "OBLIGEES" are defined in SECTION 12.09(e).
"OFFICER'S CERTIFICATE" means, as to a corporation, a
certificate executed on behalf of such corporation by an officer or director of
such corporation and, with respect to any Credit Party, substantially in the
form of EXHIBIT N attached hereto.
"OPERATING LEASE" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as lessee which
is not a Capital Lease.
"OPTIONAL CURRENCY" means (a) with respect to the Domestic
Borrowers or Domestic Lenders, Dollars, and (b) with respect to the
Multicurrency Borrowers or Multicurrency Lenders, the Specified Foreign
Currency.
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"ORIGINAL CURRENCY" is defined in SECTION 14.21(b).
"ORIGINAL INVENTORY ADVANCE RATES" means the Inventory Advance
Rates in effect on the Closing Date.
"OTHER CURRENCY" is defined in SECTION 14.21(b).
"OVERDRAFT LINE BANK" means Citibank, in its individual
capacity or, in the event CNAI is not the Administrative Agent, the
Administrative Agent (or any Affiliate of the Administrative Agent designated by
the Administrative Agent and approved by the Multicurrency Borrowers), in its
individual capacity.
"OVERDRAFT LINE COMMITMENT" means $15,000,000.
"OVERDRAFT LOANS" is defined in SECTION 2.01(c)(i).
"OVERDRAFT RATE" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which rate per annum
shall at all times be equal to the rate of interest designated and published in
London by (a) with respect to Overdraft Loans provided to the Sterling Overdraft
Accounts, the principal office of Bank of England in London, England as the
"base rate" applicable to Sterling, and (b) with respect to Overdraft Loans
provided to the Euro Overdraft Accounts, the principal office of the European
Central Bank in London, England, as the "base rate" applicable to Euros.
"OVERDRAFT REDUCTION AMOUNT" is defined in SECTION
2.01(c)(iii).
"OVERDRAFT SETTLEMENT DATE" is defined in SECTION 2.01(h).
"PAID IN FULL", "PAY IN FULL" and "PAYMENT IN FULL" means,
with respect to the Obligations of any Credit Party, (a) with respect to each
Letter of Credit issued for the account of such Borrower, the termination and
surrender for cancellation of such Letter of Credit, (b) with respect to (i)
each Currency Agreement with the Administrative Agent or any Affiliate of the
Administrative Agent to which such Credit Party is a counterparty, and (ii) each
Interest Rate Contract with the Administrative Agent or any Affiliate of the
Administrative Agent to which such Credit Party is a counterparty, the delivery
of Cash Collateral in such form as requested by the Administrative Agent (and,
in the case of Letters of Credit, the applicable Issuing Bank) for deposit in
the appropriate Cash Collateral Account, together with such endorsements, and
execution and delivery of such documents and instruments as the Administrative
Agent may request in order to perfect or protect the Administrative Agent's Lien
with respect thereto, in an aggregate principal amount equal to the then
outstanding Currency Agreement Exposure and Interest Rate Contract Exposure,
respectively, with respect thereto and (c) with respect to all other Obligations
(other than, as of any date of payment, Obligations which are contingent and
unliquidated and not then due and owing and which pursuant to SECTION 14.09,
survive the making and repayment of the Loans, the issuance and discharge of
Letters of Credit hereunder and the termination of the Commitments hereunder),
the indefeasible payment in full in cash of such Obligations.
"PARENT" means NACCO Industries, Inc., a Delaware corporation.
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"PARTICIPANT" is defined in SECTION 14.01(h).
"PARTICIPATION AMOUNT" is defined in SECTION 2.03(b).
"PARTICIPATION SETTLEMENT DATE" is defined in SECTION 2.03(b).
"PAYING DOMESTIC BORROWER" is defined in SECTION 13.06(a).
"PAYING MULTICURRENCY BORROWER" is defined in SECTION
13.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"PERMITS" means any permit, approval, authorization, license,
variance, exemption, no-action letter or permission required from a Governmental
Authority under an applicable Requirement of Law.
"PERMITTED EXISTING ACCOMMODATION OBLIGATIONS" means those
Accommodation Obligations of the Borrowers and their Subsidiaries identified as
such on SCHEDULE 1.01.4.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of
the Borrowers and their Subsidiaries identified as such on SCHEDULE 1.01.5.
"PERMITTED EXISTING INVESTMENTS" means those Investments
identified as such on SCHEDULE 1.01.6.
"PERMITTED EXISTING LIENS" means the Liens on assets of each
Borrower and Borrower Subsidiary identified as such on SCHEDULE 1.01.7.
"PERMITTED HOLDERS" means, collectively, the parties to the
Stockholders' Agreement, dated as of March 15, 1990, as amended from time to
time, by and among National City Bank, (Cleveland, Ohio), as depository, the
Participating Stockholders (as defined therein) and the Parent; provided,
however, that for purposes of this definition only, the definition of
Participating Stockholders contained in the Stockholder's Agreement shall be
such definition in effect on the Closing Date.
"PERMITTED MULTICURRENCY REFINANCING" is defined in SECTION
9.01(m).
"PERSON" means any natural person, corporation, limited
partnership, limited liability company, general partnership, joint stock
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity, or
any Governmental Authority.
"PLAN" means an employee benefit plan defined in Section 3(3)
of ERISA in respect of which any Borrower or any ERISA Affiliate is, or within
the immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
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"PLEDGE AGREEMENTS" means (a) the Pledge Agreement dated as of
the Closing Date by and between each Domestic Credit Party and the
Administrative Agent, substantially in the form and substance of EXHIBIT O
attached hereto, (b) the Pledge Agreements dated as of the Closing Date by the
Foreign Credit Parties specified on the Closing List in favor of the
Administrative Agent, and (c) all other pledge agreements executed by any
Borrower or Borrower Subsidiary in accordance with SECTION 9.07, as each of the
same may be further amended, supplemented or otherwise modified from time to
time.
"PLEDGED ENTITY" means any Borrower or Borrower Subsidiary all
or a portion of the Capital Stock of which has been or is required to be pledged
pursuant to a Pledge Agreement in accordance with the terms of this Agreement.
"PRO FORMA" means the unaudited pro forma opening balance
sheet of NMHG Holding and its Subsidiaries attached hereto as EXHIBIT P,
prepared in accordance with GAAP, dated as of March 31, 2002, and giving effect
to the extensions of credit contemplated hereby and by the Senior Notes.
"PRO RATA SHARE" means (a) with respect to any Lender and any
Credit Facility, the percentage obtained by dividing (i) such Lender's
Commitment in respect of such Credit Facility at such time by (ii) the aggregate
amount of all Commitments in respect of such Credit Facility at such time and
(b) with respect to any Lender and the Credit Facilities taken as a whole, the
percentage obtained by dividing (i) such Lender's Commitment in respect of all
Credit Facilities at such time by (ii) the aggregate amount of all Commitments
at such time; provided, however, if all of the Commitments are terminated
pursuant to the terms hereof, then "PRO RATA SHARE" means the percentage
obtained by dividing (x) the aggregate amount of such Lender's Credit Facility
Outstandings under all Credit Facilities by (y) the aggregate amount of all
Credit Facility Outstandings.
"PROCESS AGENT" is defined in SECTION 14.17.
"PROPERTY" means any Real Property or personal property,
plant, building, facility, structure, underground storage tank or unit,
Equipment, Inventory, General Intangible, Receivable, or other asset owned,
leased or operated by any Borrower or any of its Subsidiaries, as applicable
(including any surface water thereon or adjacent thereto, and soil and
groundwater thereunder).
"PROTECTIVE ADVANCE" is defined in SECTION 12.09.
"PURCHASE MONEY LIENS" is defined in SECTION 9.01(d).
"REAL PROPERTY" means, with respect to any Person, all of such
Person's present and future right, title and interest (including, without
limitation, any leasehold estate) in real property.
"RECEIVABLES" means, with respect to any Person, all of such
Person's present and future (a) accounts (as defined in the Uniform Commercial
Code or in any similar statute of England and Wales, Scotland, Northern Ireland,
the Netherlands or any other relevant
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jurisdiction, or any political subdivision thereof), (b) accounts receivable,
(c) rights to payment for goods sold or leased or for services rendered, whether
or not earned by performance (with respect to any Foreign Credit Party,
irrespective of whether such goods were sold by the UK Borrower or by any other
Foreign Credit Party), (d) all chattel paper, (e) all rights in any merchandise
or goods which any of the same may represent, and (f) all rights, title,
security, insurance, letters of credit, guaranties and other supporting
obligations with respect to each of the foregoing, including, without
limitation, any right of stoppage in transit.
"RECEIVABLES SALE AGREEMENTS" shall mean (a) the agreements
between the Netherlands Borrower and the UK Borrower providing for the daily
sale and assignment of all Receivables originated by the Netherlands Borrower to
the UK Borrower and (b) the agreements, if any, between NACCO Materials Handling
S.R.L. (or a successor thereto) and the UK Borrower providing for the daily sale
and assignment of all Receivables originated by NACCO Materials Handling S.R.L.
(or such successor) to the UK Borrower, in each case, in form and substance
satisfactory to the Administrative Agent.
"RECEIVABLES SUBSIDIARY" means a wholly-owned Subsidiary of
the UK Borrower that is structured to be "bankruptcy remote" and that engages in
no activities other than in connection with the purchase and financing of
Receivables from one or more of the Foreign Credit Parties and execution,
delivery and performance of the Loan Documents and transactions contemplated
thereby.
"REFINANCED INDEBTEDNESS" means the Indebtedness of any
Borrower (including obligations under any receivables factoring or discounting
facility) which is to be refinanced, repaid, retired or defeased out of the
proceeds of the Loans made on the Closing Date and identified as such on
SCHEDULE 1.01.8.
"REGISTER" is defined in SECTION 14.01(c).
"REGULATION A" means Regulation A of the Federal Reserve Board
as in effect from time to time.
"REGULATION D" means Regulation D of the Federal Reserve Board
as in effect from time to time.
"REGULATION U" means Regulation U of the Federal Reserve Board
as in effect from time to time.
"REGULATION X" means Regulation X of the Federal Reserve Board
as in effect from time to time.
"REIMBURSEMENT DATE" is defined in SECTION 2.02(d)(i)(A).
"REIMBURSEMENT OBLIGATIONS" means, as to any Borrower, the
aggregate non-contingent reimbursement or repayment obligations of such Borrower
with respect to amounts drawn under Letters of Credit Issued for the account of
such Borrower.
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"RELATED BUSINESS" means any business in which any Borrower or
any Borrower Subsidiary was engaged on the Closing Date and any business
related, ancillary or complementary to any business of any Borrower or any
Borrower Subsidiary in which any Borrower or any Borrower Subsidiary was engaged
on the Closing Date or a reasonable extension, development or expansion of the
business in which any Borrower or any Borrower Subsidiary was engaged as of the
Closing Date.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any active or passive release, spill,
emission, leaking, pumping, injection, deposit, disposal, pouring, dumping,
abandonment, discards of barrels, containers or other receptacles, including the
active or passive discharge, dispersal, leaching or migration of Contaminants
into the indoor or outdoor environment or into or out of any Property.
"REMEDIAL ACTION" means actions required to (a) clean up,
remove, treat or in any other way address Contaminants in the indoor or outdoor
environment; (b) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (c) investigate and determine if a remedial
or other response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"RENTAL EQUIPMENT OPERATING LEASE" is defined in SECTION
9.10(b).
"REPLACEMENT PROCEEDS" means the amount of (a) proceeds of
insurance paid on account of the loss of or damage to any Property and awards of
compensation for Property taken by condemnation or eminent domain to the extent
actually used to replace, rebuild or restore the Property so lost, damaged or
taken, provided that (i) a Borrower shall have delivered written notice to the
Administrative Agent that it or its applicable Subsidiary intends to so replace,
rebuild or restore such Property and (ii) such Borrower or such applicable
Subsidiary of the Borrower replaces or commences the restoration or rebuilding
of such Property within 365 days after the Administrative Agent's receipt of the
proceeds of such insurance payment or condemnation award and (b) insurance paid
on account of a business interruption occurrence to the extent actually used in
the restoration or conduct of the business interrupted.
"REPORTABLE EVENT" means any of the events described in
Section 4043 of ERISA excluding those events for which the requirement of notice
has been waived by the PBGC.
"REQUIRED CROSS-BORDER OPINIONS" is defined in SECTION
8.10(b).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and
bylaws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Internal Revenue Code, the Securities Act,
the Securities Exchange Act, Regulations U and X, ERISA, the Fair Labor
Standards Act and any similar statute of any foreign government or any political
subdivision thereof and any
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certificate of occupancy, zoning ordinance, building, or land use requirement or
Permit or labor or employment rule or regulation, including Environmental,
Health or Safety Requirements of Law.
"REQUISITE LENDERS" means, at any time, Lenders holding, in
the aggregate, at least fifty-one percent (51%) of the then aggregate amount of
the Commitments in effect at such time; provided, however, that, in the event
any of the Lenders is then a Defaulting Lender, "REQUISITE LENDERS" means the
Lenders (excluding Defaulting Lenders (and their Affiliates who are Lenders))
whose Pro Rata Shares of the Credit Facilities represent at least fifty-one
percent (51%) of the aggregate Pro Rata Shares of such Lenders; provided,
however, that, in the event that the Commitments have been terminated pursuant
to the terms hereof, "REQUISITE LENDERS" means the Lenders (without regard to
whether any Lenders are Defaulting Lenders) whose aggregate ratable shares
(stated as a percentage) of the aggregate outstanding principal balance of all
Credit Facility Outstandings are at least fifty-one percent (51%).
"RESTRICTED PAYMENT" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of, or interests in,
any class of Capital Stock of any Borrower or any of their Subsidiaries now or
hereafter outstanding, except a dividend (or equivalent distribution) payable
solely in (i) shares of, or options or warrants (which do not contain put or
call rights) with respect to, that class of stock and/or (ii) shares of any
class of stock which is junior to that class of stock, provided that such shares
do not constitute Indebtedness, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of, or interests in, any class of Capital Stock of any Borrower or
any of their Subsidiaries now or hereafter outstanding, (c) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of, or interests
in, any class of Capital Stock of any Borrower or any of their Subsidiaries now
or hereafter outstanding, (d) any payment or prepayment of principal of,
premium, if any, or interest, fees or other charges on or with respect to, and
any redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to any Indebtedness which by
its terms is subordinated to the Obligations, and (e) any payment or prepayment
of principal of, premium, if any, or interest, fees or other charges on or with
respect to, and any redemption, purchase, retirement, defeasance, sinking fund
or similar payment and any claim for rescission with respect to (i) the Senior
Notes, (ii) the ING Working Capital Line or (iii) Indebtedness arising from
intercompany loans between any Borrower or Borrower Subsidiary and any other
Borrower or Borrower Subsidiary.
"REVOLVING LOAN" is defined in SECTION 2.01(a).
"SALE AND LEASEBACK TRANSACTION" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person and is thereafter leased back from the purchaser
thereof by such Person.
"SCHEDULED PRINCIPAL PAYMENTS" means, for any period, the sum
of the amounts for such period of scheduled payments of principal on the
Indebtedness of NMHG Holding and its Subsidiaries (including the principal
component of Capital Lease obligations).
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"SECURITIES" means any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or any
certificates of interest, shares, or participation in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include any evidence of
the Obligations.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"SECURITY DOCUMENTS" means the Pledge Agreements, the Domestic
Security Agreement, the Trademark Security Agreements, the Collection Account
Agreements, the Foreign Security Agreements, and any other agreement, document
or instrument that creates a Lien on Property of a Credit Party in favor of any
Holder, in each case, together with all amendments, restatements, supplements or
modifications thereto.
"SELLING DOMESTIC LENDERS" is defined in SECTION 2.03(a).
"SELLING MULTICURRENCY LENDERS" is defined in SECTION 2.03(a).
"SENIOR NOTE INDENTURE" means that certain Indenture between
NMHG Holding, each of the Guarantors and U.S. Bank National Association as
trustee, dated as of the Closing Date.
"SENIOR NOTES" means the "Notes" and "Exchange Notes" under
and as defined in the Senior Note Indenture.
"SOLVENT" means, when used with respect to any Person, that at
the time of determination:
(i) the assets of such Person, at a fair valuation, are in
excess of the total amount of its debts (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments)
as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the amount of any
contingent liability shall be computed as the amount that, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
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"SPECIFIED FOREIGN CURRENCY" means Euros or Sterling.
"SPOT RATE" means, as of any date of determination with
respect to the conversion of an amount in the Original Currency to an Other
Currency, the rate of exchange quoted by the Administrative Agent (or its
Affiliate) in New York, New York (if the Original Currency is Dollars), or
London, England (if the Original Currency is a Specified Foreign Currency), at
11:00 a.m. (New York time or London time, as applicable) on such date of
determination to prime banks in New York, New York, or London, England, as
appropriate, for the spot purchase in the foreign exchange market of such city
of such amount of the Original Currency with such Other Currency.
"SSB" is defined in the preamble.
"STANDBY LETTER OF CREDIT" means any Letter of Credit Issued
by an Issuing Bank pursuant to SECTION 2.02 for the account of a Domestic
Borrower which is not a Commercial Letter of Credit.
"STERLING" means the lawful currency of the United Kingdom.
"STERLING CASH COLLATERAL ACCOUNT" means an account designated
as such with respect to the Multicurrency Borrowers and established by the
Administrative Agent maintained with Citibank in London, England, for account
funds denominated in Sterling.
"STERLING LOANS" means Multicurrency Loans denominated in
Sterling and Protective Advances denominated in Sterling, and, in each case,
advanced to a Multicurrency Borrower.
"STERLING OVERDRAFT ACCOUNTS" means account number 48526
maintained with Citibank in London, England, in the name of the Netherlands
Borrower and account number ▇▇▇▇▇▇▇ maintained with Citibank in London, England,
in the name of the UK Borrower.
"STERLING OVERDRAFT LIMIT" means $12,500,000, as may be
adjusted pursuant to SECTION 2.01(c)(iii).
"STERLING SUBFACILITY" means the subfacility of the
Multicurrency Facility for which Borrowings are only available in Sterling.
"SUBFACILITIES" means the Euro Subfacility and the Sterling
Subfacility.
"SUBFACILITY COMMITMENT" means (i) with respect to the Euro
Subfacility, $17,500,000 and (ii) with respect to the Sterling Subfacility,
$37,500,000, as each may be adjusted in relative amounts pursuant to SECTION
3.01(c).
"SUBFACILITY REALLOCATION REQUEST" is defined in SECTION
3.01(c).
"SUBFACILITY REDUCTION AMOUNT" is defined in SECTION 3.01(c).
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"SUBSIDIARY" of a Person means any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by such
Person, one or more of the other subsidiaries of such Person or any combination
thereof.
"SWING LOAN" is defined in SECTION 2.01(b).
"SWING LOAN BANK" means CUSA, in its individual capacity or,
in the event CNAI is not the Administrative Agent, the Administrative Agent (or
any Affiliate of the Administrative Agent designated by the Administrative
Agent), in its individual capacity.
"SWING LOAN NOTE" means the promissory note payable to the
Swing Loan Bank evidencing the Domestic Borrowers' Obligations to repay the
Swing Loans made to the Domestic Borrowers, substantially in the form and
substance of EXHIBIT Q-3 attached hereto.
"SWING LOAN SETTLEMENT DATE" is defined in SECTION 2.01(g).
"SYNDICATION AGENT" is defined in the preamble.
"TAX SHARING AGREEMENT" means that certain Amended Tax Sharing
Agreement, dated as of May 14, 1997, among the affiliated group of corporations,
within the meaning of Section 1504(a) of the Internal Revenue Code of which the
Parent is the common parent.
"TAXES" is defined in SECTION 3.04(a).
"TERMINATION DATE" means the earlier to occur of (a) the date
of termination of the Commitments pursuant to the terms hereof and (b) the third
anniversary of the Closing Date.
"TERMINATION EVENT" means (a) a Reportable Event with respect
to any Benefit Plan; (b) the withdrawal of any Borrower or any ERISA Affiliate
from a Benefit Plan during a plan year in which such Borrower or such ERISA
Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA; (c) the imposition of an obligation on any Borrower or any ERISA
Affiliate under Section 4041 of ERISA to provide affected parties written notice
of intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA or, with respect to a Foreign Pension Plan, written
notice to the trustees or fiduciaries of, or members in, such plan, or to a
foreign Governmental Authority of an intent to terminate such Foreign Pension
Plan; (d) the institution by the PBGC or any similar foreign Governmental
Authority of proceedings to terminate a Benefit Plan or a Foreign Pension Plan;
(e) any event or condition which would reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; (f) a foreign Governmental Authority shall appoint
or institute proceedings to appoint a trustee to administer any Foreign Pension
Plan; or (g) the partial or complete withdrawal of any Borrower or any ERISA
Affiliate from a Multiemployer Plan or a Foreign Pension Plan.
"TOTAL BORROWING BASE" means, collectively, the Domestic
Borrowing Base and the Multicurrency Borrowing Base.
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"TRADEMARK SECURITY AGREEMENTS" means (a) the Trademark
Security Agreement dated as of the Closing Date by and between the Domestic
Credit Parties and the Administrative Agent substantially in the form of EXHIBIT
R attached hereto, (b) each Trademark Security Agreement, if any, dated as of
the Closing Date by and between a Foreign Credit Party and the Administrative
Agent, and (c) each Trademark Security Agreement required to be delivered by a
Borrower Subsidiary pursuant to SECTION 9.07, as each of the same may be further
amended, supplemented or otherwise modified from time to time.
"UK BORROWER" is defined in the preamble.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time;
provided, however, in the event that, by reason of mandatory provisions of law,
any or all of the creation, attachment, perfection, priority or enforcement of
the Administrative Agents' or Holder's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UNIFORM COMMERCIAL CODE" shall include the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such creation, attachment, perfection,
priority or enforcement and for purposes of definitions related to such
provisions.
"UNUSED COMMITMENT FEE" is defined in SECTION 4.03(b).
"VOTING STOCK" means, with respect to any Person, shares,
securities, limited liability company interests, general or limited partnership
interests or other equivalents with respect to any class or classes of Capital
Stock of such Person entitling any holder thereof (whether at all times or only
so long as no senior class of Capital Stock has voting power by reason of any
contingency) (a) in the case of a corporation (or equivalent organization), to
vote in the election of members of the board of directors (or the equivalent
thereof) of such Person, (b) in the case of a limited liability company, to vote
in the election of managers of such Person or to bind or otherwise act as agent
for such Person, (c) in the case of a limited partnership, to vote on the
admission of the general partner of such Person or to bind or otherwise act as
agent for such Person or (iv) in the case of a general partnership, to bind or
otherwise act as agent for such Person.
1.02. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
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1.03. ACCOUNTING TERMS. Subject to SECTION 14.04, for purposes
of this Agreement, all accounting terms not otherwise defined herein shall have
the meanings assigned to them in conformity with GAAP.
1.04. OTHER DEFINITIONAL PROVISIONS. References to the
"preamble", "Articles", "Sections", "subsections", "Schedules" and "Exhibits"
shall be to the preamble, Articles, Sections, subsections, Schedules and
Exhibits, respectively, of and to this Agreement unless otherwise specifically
provided. The words "hereof", "herein", and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.
1.05. OTHER TERMS. All other terms contained herein shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
1.06. PAYMENTS BY THE BORROWERS. Except as expressly set forth
herein to the contrary, (a) all payments made by the Borrowers in respect of
principal and interest on the Loans made under any Credit Facility shall be made
(i) with respect to the Domestic Facility, in Dollars and (ii) with respect to
the Multicurrency Facility, in the Specified Foreign Currency in which such Loan
was made, (b) all payments of Reimbursement Obligations shall be made in Dollars
or the Specified Foreign Currency in which the Letter of Credit under which such
Reimbursement Obligations arise is denominated, and (c) all payments made by
Borrowers in respect of Participation Amounts funded under SECTION 2.03 shall be
made in the Optional Currency in which such Participation Amount was funded.
ARTICLE II
AMOUNTS AND TERMS OF LOANS AND LETTERS OF CREDIT
2.01. THE REVOLVING CREDIT FACILITY.
(a) REVOLVING LOANS. Subject to the terms and conditions set
forth herein, (i) pursuant to the Domestic Commitments, each Domestic Lender
hereby severally and not jointly agrees to make revolving loans (each a
"DOMESTIC LOAN") to the Domestic Borrowers from time to time on any Business Day
during the period from the Closing Date to the Termination Date, in an amount
not to exceed such Domestic Lender's Pro Rata Share of the Availability under
the Domestic Facility at such time, provided, however, no such Loan shall be
required to be made if, after giving effect thereto, (A) the aggregate Credit
Facility Outstandings owed by the Domestic Borrowers under the Domestic Facility
exceed the Maximum Credit Amount for the Domestic Facility at such time, or (B)
the aggregate Credit Facility Outstandings owing to such Domestic Lender and its
Affiliates (after giving effect to any participations purchased by and from such
Persons under SECTION 2.02(e)(ii) and funded by such Persons under SECTION 2.03)
under all Credit Facilities would exceed the aggregate Commitment of such
Persons with respect to all Credit Facilities, and (ii) pursuant to the
Multicurrency Commitments, each Multicurrency Lender hereby agrees to make
revolving loans (each a "MULTICURRENCY LOAN" and, together with the Domestic
Loans, the "REVOLVING LOANS") to the Multicurrency Borrowers from time to time
on any Business Day during the period from the Closing Date to the Termination
Date, in an amount (converted to the Dollar Equivalent thereof) not to exceed
such Multicurrency Lender's
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Pro Rata Share of the Availability under the Multicurrency Facility at such
time, provided, however, no such Loan shall be required to be made if, after
giving effect thereto, (A) the aggregate Credit Facility Outstandings owed by
the Multicurrency Borrowers under the Multicurrency Facility exceed the Maximum
Credit Amount for the Multicurrency Facility at such time, (B) the aggregate
Credit Facility Outstandings owing to such Multicurrency Lender and its
Affiliates (after giving effect to any participation purchased by and from such
Persons under SECTION 2.02(e)(ii) and 2.03) under all Credit Facilities would
exceed the aggregate Commitment of such Persons with respect to all Credit
Facilities, (C) the aggregate Credit Facility Outstandings owed by the
Multicurrency Borrowers under the Multicurrency Facility which are denominated
in Euros would exceed the Maximum Credit Amount for the Euro Subfacility, and
(D) the aggregate Credit Facility Outstandings owed by the Multicurrency
Borrowers under the Multicurrency Facility which are denominated in Sterling
would exceed the Maximum Credit Amount for the Sterling Subfacility. All
Revolving Loans comprising the same Borrowing hereunder shall be made by the
Domestic Lenders or the Multicurrency Lenders, as the case may be,
simultaneously and proportionately to their then respective Pro Rata Shares of
the applicable Credit Facility. Subject to the provisions hereof, any Borrower
may repay any outstanding Revolving Loan on any day which is a Business Day and
any amounts so repaid may be reborrowed, up to the amount available under this
SECTION 2.01(a) at the time of such Borrowing, until the Termination Date. Each
Borrowing of Domestic Loans shall be in Dollars, and each Borrowing of
Multicurrency Loans shall be denominated in a single Specified Foreign Currency.
Each Borrowing of Revolving Loans shall be in an aggregate minimum amount of
$1,000,000 for Floating Rate Loans (and in intervals of $1,000,000 in excess
thereof), $7,500,000 for Fixed Rate Loans under the Domestic Credit Facility
(and in intervals of $1,000,000 in excess thereof), and $5,000,000 for Fixed
Rate Loans under the Multicurrency Credit Facility (and in intervals of the
Dollar Equivalent of $1,000,000 in excess thereof).
(b) SWING LOANS. The Swing Loan Bank may, in its sole
discretion, make to the Domestic Borrowers to whom the Domestic Loans are
available loans (each a "SWING LOAN") from time to time on any Business Day
during the period from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time the lesser of (i) $25,000,000 (the "MAXIMUM
SWING LOAN AMOUNT") and (ii) the Availability for the Domestic Credit Facility
at such time. All Swing Loans made under the Domestic Credit Facility shall be
made as Floating Rate Loans and shall be available in Dollars. Except as
otherwise provided herein, all Swing Loans shall be subject to all the terms and
conditions applicable to Revolving Loans. Swing Loans shall be repaid pursuant
to the terms of SECTION 2.01(g) or as otherwise provided in this Agreement.
(c) OVERDRAFT LOANS.
(i) From time to time on any Business Day during the period
from the Closing Date to the Termination Date, upon presentment to the
Overdraft Line Bank for payment of an item drawn by a Multicurrency
Borrower on a Euro Overdraft Account or Sterling Overdraft Account
(each an "ACCOUNT" and collectively the "ACCOUNTS") with the Overdraft
Line Bank in an amount that, when charged against the Account, creates
an overdraft in the Account, the Overdraft Line Bank shall pay such
item to the extent not subject to the limitations set forth in this
SECTION 2.01(c)(i), and such payment shall be deemed an "OVERDRAFT
LOAN". Each Overdraft Loan provided hereunder shall bear
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interest at the interest rate set forth in SECTION 4.01(a)(ii). At no
time shall the aggregate amount of Overdraft Loans exceed the lesser of
(A) the Overdraft Line Commitment and (B) the Availability for the
Multicurrency Credit Facility at such time; provided, further, that the
Overdraft Loans provided to the relevant Multicurrency Borrower with
respect to the Euro Overdraft Accounts shall not exceed the Euro
Overdraft Limit, and the Overdraft Loans provided to the relevant
Multicurrency Borrower with respect to the Sterling Overdraft Accounts
shall not exceed the Sterling Overdraft Limit. Overdraft Loans shall be
repaid pursuant to the terms of SECTION 2.01(h) or as otherwise
provided in this Agreement.
(ii) Notwithstanding the foregoing CLAUSE (I), the Overdraft
Line Bank shall not make any Overdraft Loan in the period commencing on
the second Business Day after it receives written notice from any
Multicurrency Lender that one or more of the conditions precedent
contained in SECTION 5.02 shall not on such date be satisfied, and
ending when such conditions are satisfied, and the Overdraft Line Bank
shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in SECTION 5.02 hereof have
been satisfied in connection with the making of any Overdraft Loan.
(iii) The Multicurrency Borrowers, upon three (3) Business
Days' written notice to the Administrative Agent may request, no more
than twelve (12) times in any Fiscal Year, that the Euro Overdraft
Limit or the Sterling Overdraft Limit be reduced by an amount equal to
not less than $500,000 (such amount, the "OVERDRAFT REDUCTION AMOUNT"),
and that the Euro Overdraft Limit or the Sterling Overdraft Limit not
so reduced be correspondingly increased by the Overdraft Reduction
Amount.
(d) NOTICE OF BORROWING IN RESPECT OF REVOLVING LOANS AND
SWING LOANS. When a Borrower desires to make a Borrowing under CLAUSES (a) and
(b) of this SECTION 2.01, it shall deliver to the Administrative Agent in a
manner specified in SECTION 14.08 a signed Notice of Borrowing no later than (i)
(A) 3:00 p.m. (New York time) on the proposed Funding Date for such Borrowing,
in the case of a proposed Borrowing of Swing Loans, (B) 3:00 p.m. (New York
time) at least one (1) Business Day in advance of the proposed Funding Date for
such Borrowing, in the case of a proposed Borrowing of Floating Rate Loans that
cannot be provided as Swing Loans and (C) 12:00 p.m. (New York time) at least
three (3) Business Days in advance of the proposed Funding Date for such
Borrowing, in the case of a proposed Borrowing of Domestic Loans consisting of
Fixed Rate Loans or (ii) 3:00 p.m. (London time) at least four (4) Business Days
in advance of the proposed Funding Date for such Borrowing, in the case of a
proposed Borrowing of Multicurrency Loans. Any such Notice of Borrowing shall be
irrevocable and, with respect to any Notice of Borrowing under CLAUSE (i)(B)
above made by any Domestic Borrower, shall first constitute a request to borrow
Swing Loans (other than a request for a Fixed Rate Loan); provided, however, in
the event the Administrative Agent after consultation with the Swing Loan Bank
determines that a Borrowing of Swing Loans is not possible or feasible, such
Notice of Borrowing shall constitute a request, as of the time such Notice of
Borrowing was originally submitted, by such Borrower to borrow Revolving Loans
under the applicable Credit Facility; provided, further, however, all Notices of
Borrowing with respect to Fixed Rate Loans shall constitute a request by such
Borrower to borrow Revolving Loans under the Domestic Facility or the
Multicurrency Facility, as the case may be. All Domestic Loans made under this
SECTION 2.01 on the Closing Date shall be made initially as
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Floating Rate Loans and may thereafter be continued as Floating Rate Loans or
converted into Fixed Rate Loans in the manner provided in SECTION 4.01(c); and
all Multicurrency Loans made under this SECTION 2.01 on the Closing Date shall
be made initially, at the discretion of the Administrative Agent, as Overdraft
Loans or as Fixed Rate Loans with an Interest Period of five days. In the case
of a Notice of Borrowing delivered in connection with a proposed Borrowing of
Multicurrency Loans, the applicable Multicurrency Borrower shall request, within
one-half hour prior to the issuance of such Notice of Borrowing, the advice of
the Administrative Agent as to the Dollar Equivalent of the amount of such
Borrowing, and such Multicurrency Borrower shall specify such amount in such
Notice of Borrowing; provided that such advice shall not be deemed to be a
prediction or guaranty of the Dollar Equivalent of such amount after the Notice
of Borrowing is submitted and shall in no way limit the Borrowers' Obligations
under this Agreement due to fluctuations in the applicable Specified Foreign
Currency; provided, further, that if any Multicurrency Borrower requests such
advice from the Administrative Agent within one-half hour prior to the time that
a Notice of Borrowing for Multicurrency Loans is required to be delivered
hereunder and the Administrative Agent does not provide such advice prior to
such time, such required delivery time shall be extended until the
Administrative Agent provides such advice.
(e) MAKING OF SWING LOANS. Promptly after receipt of a Notice
of Borrowing pursuant to Section 2.01(d) with respect to the Borrowing of
Floating Rate Loans under the Domestic Credit Facility, the Swing Loan Bank
shall deposit in immediately available funds the amount it intends to fund, if
any, in respect of the Domestic Loans requested in such Notice of Borrowing with
the Administrative Agent at its office in New York, New York not later than 4:00
p.m. (New York time) on the Funding Date. The Swing Loan Bank shall not make any
Swing Loan in the period commencing on the first Business Day after it receives
written notice from any Domestic Lender that one or more of the conditions
precedent contained in SECTION 5.02 shall not on such date be satisfied, and
ending when such conditions are satisfied, and the Swing Loan Bank shall not
otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in SECTION 5.02 hereof have been satisfied in connection
with the making of any Swing Loan. Subject to the preceding sentence, the
Administrative Agent shall make such proceeds of each funding of a Swing Loan
available to the relevant Domestic Borrower at the Administrative Agent's office
in New York, New York on the Funding Date of the proposed Borrowing and shall
disburse such proceeds to the Disbursement Account referred to in the applicable
Notice of Borrowing. If the Swing Loan Bank receives a Notice of Borrowing
within the applicable time limits set forth in SECTION 2.01(d) and does not
intend to fund such requested Borrowing as a Swing Loan, the Swing Loan Bank
will promptly notify the Administrative Agent (to the extent the Swing Loan Bank
and the Administrative Agent are not the same Person) of such intention, and no
delay by the Swing Loan Bank shall impair the applicable Domestic Borrower's
right to borrow Revolving Loans under this SECTION 2.01.
(f) MAKING OF REVOLVING LOANS.
(i) In the event any portion of the Loans requested in any
Notice of Borrowing delivered to the Administrative Agent pursuant
SECTION 2.01(d) will be made as Revolving Loans, the Administrative
Agent shall promptly notify each Lender under the applicable Credit
Facility of the amount of such Borrowing of Revolving Loans. Each such
Lender shall deposit an amount equal to its Pro Rata Share under such
Credit
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Facility of the amount of such Borrowing with the Administrative Agent
in the applicable Funding Account in immediately available funds and in
the appropriate currency, not later than 3:00 p.m. (New York time) with
respect to Domestic Loans or 4:00 p.m. (London time) with respect to
Multicurrency Loans on any Funding Date applicable thereto (or, if the
Funding Date is the Closing Date, such earlier time as the
Administrative Agent shall determine). Subject to the fulfillment of
the conditions precedent set forth in SECTION 5.01 (solely with respect
to the making of Revolving Loans on the Closing Date) and SECTION 5.02,
the Administrative Agent shall make the proceeds of such amounts
received by it available to the applicable Borrower at the
Administrative Agent's office in New York, New York, with respect to
Domestic Loans, or London, England, with respect to Multicurrency
Loans, on such Funding Date and shall disburse such proceeds to the
Disbursement Account referred to in the applicable Notice of Borrowing
on such Funding Date.
(ii) The failure of any Lender to deposit the amount described
in CLAUSE (i) above (or required to be paid pursuant to SECTION
2.01(g)) with the Administrative Agent on the applicable Funding Date
shall not relieve any other Lender of its obligations hereunder to make
its Revolving Loan on such Funding Date. No Lender shall be responsible
for any failure by any other Lender to perform its obligation to make a
Revolving Loan hereunder nor shall the Domestic Commitment or
Multicurrency Commitment of any Lender be increased or decreased as a
result of any such failure.
(iii) Unless the Administrative Agent shall have been notified
by any Lender prior to 2:00 p.m. (New York time) with respect to
Domestic Loans or 2:00 p.m. (London time) with respect to Multicurrency
Loans, on any applicable Funding Date in respect of any Borrowing of
Revolving Loans that such Lender does not intend to fund its Loan
requested to be made on such Funding Date, the Administrative Agent may
assume that such Lender has funded its Revolving Loan and is depositing
the proceeds thereof in the applicable Funding Account on the Funding
Date, and the Administrative Agent in its sole discretion may, but
shall not be obligated to, disburse a corresponding amount to the
applicable Borrower on the Funding Date. If the Revolving Loan proceeds
corresponding to that amount are advanced to such Borrower by the
Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable
Funding Date, such Lender agrees to pay, and in addition such Borrower
agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from
the date such amount is disbursed to or for the benefit of such
Borrower until the date such amount is paid or repaid to the
Administrative Agent at the interest rate applicable to such Borrowing.
If such Lender shall pay to the Administrative Agent the corresponding
amount, the amount so paid shall constitute such Lender's Revolving
Loan, and if both such Lender and such Borrower shall pay and repay
such corresponding amount, the Administrative Agent shall promptly pay
to such Borrower such corresponding amount (together with any interest
included in such payment). This SECTION 2.01(f)(iii) does not relieve
any Lender of its obligation to make its Revolving Loan on any Funding
Date.
(iv) Anything hereinabove to the contrary notwithstanding, if
any Multicurrency Lender shall, not later than 2:00 p.m. (London time)
one Business Day before the date of
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any requested Borrowing of Multicurrency Loans, notify the
Administrative Agent that such Lender is not satisfied that deposits in
the relevant Specified Foreign Currency will be freely available to it
in the relevant amount and, if applicable, for the relevant Interest
Period, the right of the Multicurrency Borrowers to request
Multicurrency Loans in such Specified Foreign Currency from such Lender
as part of such Borrowing or any subsequent Borrowing of Multicurrency
Loans shall be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no
longer exist, and, at the option of any Multicurrency Borrower, the
Multicurrency Loan to be made by such Lender as part of such Borrowing
(and the Multicurrency Loan to be made by such Lender as part of any
subsequent Borrowing of Multicurrency Loans in respect of which such
Specified Foreign Currency shall have been requested during such period
of suspension) shall be denominated in any other Specified Foreign
Currency requested on the same Business Day which is available, and
having an Interest Period coextensive with the Interest Period in
effect in respect of all other Multicurrency Loans comprising a part of
such Borrowing. The Administrative Agent shall, upon becoming aware
that the circumstances causing any such suspension no longer apply,
promptly so notify the Multicurrency Borrowers, provided that the
failure of the Administrative Agent to so notify the Multicurrency
Borrowers shall not impair the rights of the Lenders under this SECTION
2.01(f)(iv) or expose the Administrative Agent to any liability.
(g) SETTLEMENT OF SWING LOANS.
(i) The Administrative Agent shall from time to time, in its
sole discretion, notify each Domestic Lender by 12:00 p.m. (New York
time), of the aggregate principal amount of Swing Loans outstanding as
of the close of business on the Business Day immediately preceding the
date of such notice (each such Business Day being a "SWING LOAN
SETTLEMENT DATE"). Upon such notice, each Domestic Lender shall deposit
in the applicable Funding Account in Dollars an amount equal to its Pro
Rata Share under the Domestic Credit Facility of the amount of such
principal amount of Swing Loans outstanding in immediately available
funds, not later than 3:00 p.m. (New York time) on the date of such
notice. Upon such payment, each Domestic Lender shall be deemed to have
made a Revolving Loan denominated in Dollars to the applicable Borrower
or Borrowers in such amount (irrespective of the satisfaction of the
conditions in SECTION 5.02). Each Domestic Lender hereby agrees that
its obligations under this SECTION 2.01(g) are irrevocable and
unconditional (except with respect to Swing Loans made in contravention
of the second sentence of SECTION 2.01(e)) notwithstanding (A) the
nonconformity of the amount of the Loan with the minimum amounts (and
increments thereof) otherwise required hereunder, (B) whether any
conditions specified in SECTION 5.02 are then satisfied, (C) whether a
Default or Event of Default has occurred and is continuing, (D) the
date of such Borrowing, (E) the amount of the Domestic Borrowing Base,
Multicurrency Borrowing Base, Total Borrowing Base and Commitment at
such time. In the event that any such Borrowing cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code in respect of any Borrower), each Domestic Lender
(other than the Swing Loan Bank) hereby agrees that it shall forthwith
purchase from the Swing Loan Bank (without recourse or warranty) such
assignment of the
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outstanding Swing Loans as shall be necessary to cause the Domestic
Lenders to share in such Swing Loans ratably based upon their
respective Pro Rata Shares; provided, that all interest payable on the
Swing Loans shall be for the account of the Swing Loan Bank until the
date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the
Domestic Lender purchasing the same from and after such date of
purchase.
(ii) If and to the extent any Domestic Lender shall not have
made available to the Administrative Agent on any Swing Loan Settlement
Date with respect to the Domestic Credit Facility any amount payable by
such Domestic Lender on such Swing Loan Settlement Date pursuant to
this SECTION 2.01(g) or SECTION 2.01(h), such Domestic Lender agrees to
pay to the Administrative Agent forthwith on demand such amount in
Dollars together with interest thereon, for each day from such Swing
Loan Settlement Date until the date such amount is paid to the
Administrative Agent, at the interest rate applicable to the Loans
denominated in such currency hereunder.
(h) SETTLEMENT OF OVERDRAFT LOANS.
(i) The Administrative Agent shall from time to time, in its
sole discretion (but in no event less frequently than every five (5)
Business Days), notify each Multicurrency Lender by 3:00 p.m. (London
time), of the aggregate principal amount of Overdraft Loans outstanding
as of the close of business on the Business Day immediately preceding
the date of such notice. Upon such notice, each Multicurrency Lender
shall deposit in the applicable Funding Account in the appropriate
Specified Foreign Currency an amount equal to its Pro Rata Share under
the Multicurrency Credit Facility of the amount of such principal
amount of Overdraft Loans outstanding in immediately available funds,
not later than 4:00 p.m. (London time) on the Business Day following
such notice (such Business Day being an "OVERDRAFT SETTLEMENT Date").
Upon such payment, each Multicurrency Lender shall be deemed to have
made a Revolving Loan denominated in the applicable Specified Foreign
Currency to the Multicurrency Borrowers in such amount (irrespective of
the satisfaction of the conditions in SECTION 5.02). Each Multicurrency
Lender hereby agrees that its obligations under this SECTION 2.01(h)
are irrevocable and unconditional (except with respect to Overdraft
Loans made in contravention of the second sentence of SECTION
2.01(c)(ii)) notwithstanding (A) the nonconformity of the amount of the
Loan with the minimum amounts (and increments thereof) otherwise
required hereunder, (B) whether any conditions specified in SECTION
5.02 are then satisfied, (C) whether a Default or Event of Default has
occurred and is continuing, (D) the date of such Borrowing, (E) the
amount of the Domestic Borrowing Base, Multicurrency Borrowing Base,
and Total Borrowing Base or Commitment at such time. In the event that
any such Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of
any Borrower), each Multicurrency Lender (other than the Overdraft Line
Bank) hereby agrees that upon the request of the Overdraft Line Bank it
shall forthwith purchase from the Overdraft Line Bank (without recourse
or warranty) such assignment of the outstanding Overdraft Loans as
shall be necessary to cause the Multicurrency Lenders to share in such
Overdraft Loans ratably based upon their respective Pro Rata Shares;
provided, that all interest
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payable on the Overdraft Loans shall be for the account of the
Overdraft Line Bank until the date the respective assignment is
purchased and, to the extent attributable to the purchased assignment,
shall be payable to the Multicurrency Lenders purchasing the same from
and after such date of purchase.
(ii) If and to the extent any Multicurrency Lender shall not
have made available to the Administrative Agent on any Overdraft
Settlement Date with respect to the Multicurrency Credit Facility any
amount payable by such Multicurrency Lender on such Overdraft
Settlement Date pursuant to this SECTION 2.01(h), such Multicurrency
Lender agrees to pay to the Administrative Agent forthwith on demand
such amount in the applicable currency together with interest thereon,
for each day from such Overdraft Settlement Date until the date such
amount is paid to the Administrative Agent, at the interest rate
applicable to the Loans denominated in such currency hereunder.
(i) USE OF PROCEEDS. Proceeds of Domestic Loans and of Swing
Loans under the Domestic Facility shall be used to (i) retire the Domestic
Borrowers' Refinanced Indebtedness; (ii) provide for ongoing working capital
needs in the ordinary course of the business of Domestic Borrowers and their
Subsidiaries; and (iii) for other lawful general corporate purposes not
prohibited hereunder (including Capital Expenditures permitted hereunder).
Proceeds of Multicurrency Loans and of Overdraft Loans under the Multicurrency
Facility shall be used to (x) retire the Multicurrency Borrowers' Refinanced
Indebtedness; (y) provide for ongoing working capital needs in the ordinary
course of the business of each Multicurrency Borrower and its Subsidiaries; and
(z) for other lawful general corporate purposes not prohibited hereunder
(including Capital Expenditures permitted hereunder). Proceeds of Revolving
Loans, Swing Loans and Overdraft Loans may also be used to pay for transaction
expenses incurred in connection herewith.
(j) TERMINATION DATE. The Commitments shall terminate, and all
outstanding Obligations shall be Paid In Full, on the Termination Date.
2.02. LETTERS OF CREDIT. Subject to the terms and conditions
set forth herein, (x) each Issuing Bank hereby severally agrees to Issue for the
account of any Domestic Borrower one or more Letters of Credit denominated in
Dollars, up to an aggregate face amount at any one time outstanding for all
Domestic Borrowers equal to the Letter of Credit Sublimit of the Domestic
Facility and (y) each Issuing Bank hereby severally agrees to Issue for the
account of the Multicurrency Borrowers one or more Letters of Credit denominated
in a Specified Foreign Currency, up to an aggregate face amount at any one time
outstanding for the Multicurrency Borrowers equal to the Letter of Credit
Sublimit of the Multicurrency Facility, subject, in each case, to the following
provisions:
(a) TYPES AND AMOUNTS. An Issuing Bank shall not have any
obligation to Issue, and shall not, except as otherwise agreed by the Requisite
Lenders and Issuing Bank (except with respect to any notification received by an
Issuing Bank pursuant to SECTION 2.02(a)(ii)(A), which shall require the
agreement of all of the Lenders and the Issuing Bank), Issue any Letter of
Credit at any time:
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(i) if the aggregate Letter of Credit Obligations with respect
to such Issuing Bank, after giving effect to the Issuance of the Letter
of Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(ii) if the Issuing Bank receives notice (A) from the
Administrative Agent at or before 11:00 a.m. (New York or London time,
as applicable, with respect to a Letter of Credit Issued under the
Domestic Facility or the Multicurrency Facility, respectively) on the
date of the proposed Issuance of such Letter of Credit that,
immediately after giving effect to the Issuance of such Letter of
Credit, the Credit Facility Outstandings in respect of the Domestic
Facility or the Multicurrency Facility, as applicable, at such time
would exceed the Maximum Credit Amount for such Credit Facility or (B)
from any of the Lenders at or before 11:00 a.m. (New York or London
time, as applicable, with respect to a Letter of Credit Issued under
the Domestic Facility or the Multicurrency Facility, respectively) on
the date of the proposed Issuance of such Letter of Credit that one or
more of the conditions precedent contained in SECTIONS 5.01 (solely
with respect to an Issuance of a Letter of Credit on the Closing Date)
and 5.02 would not on such date be satisfied (or waived pursuant to
SECTION 14.07), unless such conditions are thereafter satisfied or
waived and notice of such satisfaction or waiver is given to the
Issuing Bank by the Administrative Agent (and an Issuing Bank shall not
otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in SECTIONS 5.01 or 5.02, as applicable,
have been satisfied or waived);
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of Issuance or (B) the
Business Day next preceding the Termination Date; or
(iv) which is in a currency other than (A) a Dollars with
respect to Letters of Credit requested by the Domestic Borrowers and
(B) a Specified Foreign Currency with respect to Letters of Credit
requested by the Multicurrency Borrowers;
(v) the Issuance and terms of which is governed by the laws of
any jurisdiction other than the United States, England or any other
jurisdiction which is approved by the Administrative Agent and the
applicable Issuing Bank; or
(vi) of which the date of Issuance is less than eleven (11)
Business Days before the Termination Date.
(b) CONDITIONS. In addition to being subject to the
satisfaction of the conditions precedent contained in SECTIONS 5.01 (solely with
respect to an Issuance of a Letter of Credit on the Closing Date) and 5.02, the
obligation of an Issuing Bank to Issue any Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the applicable Borrower
shall have executed and delivered to such Issuing Bank and the
Administrative Agent a Letter of Credit Reimbursement Agreement and
such other documents and materials as may be required pursuant to the
terms thereof; and
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(ii) the terms of the proposed Letter of Credit shall conform
to the customary terms of letters of credit issued by the Issuing Bank.
(c) ISSUANCE OF LETTERS OF CREDIT.
(i) A Borrower shall deliver to the applicable Issuing Bank
and the Administrative Agent in a manner specified in SECTION 14.08 a
signed Notice of Letter of Credit Issuance not later than 11:00 a.m.
(New York or London time, as applicable with respect to a Letter of
Credit issued under the Domestic Facility or the Multicurrency
Facility, respectively) on the third Business Day preceding the
requested date for Issuance of a Letter of Credit hereunder, or such
shorter notice as may be acceptable to such Issuing Bank and the
Administrative Agent. Such notice shall be irrevocable. In the case of
a Notice of Letter of Credit Issuance requesting the Issuance of a
Letter of Credit denominated in any Specified Foreign Currency, the
relevant Multicurrency Borrower shall request, within one-half hour
prior to the issuance of such Notice of Letter of Credit Issuance, the
advice of the Administrative Agent as to the Dollar Equivalent of the
face amount of the requested Letter of Credit, and such Multicurrency
Borrower shall specify such amount in such Notice of Letter of Credit
Issuance; provided that such advice shall not be deemed to be a
prediction or guaranty of the Dollar Equivalent of such amount after
the Notice of Letter of Credit Issuance is submitted and shall in no
way limit the Borrowers' Obligations under this Agreement or, if
applicable, any Letter of Credit Reimbursement Agreement due to
fluctuations in the applicable Specified Foreign Currency; provided,
further, that if the relevant Multicurrency Borrower requests such
advice from the Administrative Agent within one-half hour prior to the
time that a Notice of Letter of Credit Issuance is required to be
delivered hereunder and the Administrative Agent does not provide such
advice prior to such time, such required delivery time shall be
extended until the Administrative Agent provides such advice.
(ii) The Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice confirmed promptly thereafter in
writing, of the Issuance of a Letter of Credit.
(d) REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(i) Notwithstanding any provision to the contrary in any
Letter of Credit Reimbursement Agreement:
(A) each Borrower for whose account a Letter of
Credit has been Issued agrees to reimburse the applicable
Issuing Bank in the applicable currency for amounts drawn
under such Letter of Credit pursuant to SUBSECTION (e)(ii)
below, no later than the date (the "REIMBURSEMENT DATE") which
is one (1) Business Day after such Borrower receives written
notice from the Issuing Bank that payment has been made under
such Letter of Credit by the Issuing Bank;
(B) all Reimbursement Obligations with respect to any
Letter of Credit Issued under the Domestic Credit Facility
shall bear interest at the Floating Rate PLUS the Applicable
Floating Rate Margin, from the date of the relevant drawing
under
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such Letter of Credit until the Reimbursement Date and
thereafter at the rate applicable in accordance with SECTION
4.01(d); and
(C) all Reimbursement Obligations with respect to any
Letter of Credit Issued under the Multicurrency Credit
Facility shall bear interest at the Overdraft Rate PLUS the
Overdraft Rate Margin, from the date of the relevant drawing
under such Letter of Credit until the Reimbursement Date and
thereafter at the rate applicable in accordance with SECTION
4.01(d).
(ii) The Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice confirmed promptly thereafter in
writing, of all drawings under a Letter of Credit and the payment (or
the failure to pay when due) by the Borrowers on account of a
Reimbursement Obligation.
(iii) No action taken or omitted in good faith by an Issuing
Bank under or in connection with any Letter of Credit (except for any
such action resulting from the gross negligence or willful misconduct
of such Issuing Bank) shall put such Issuing Bank under any resulting
liability to any Lender, any Borrower or, so long as such Letter of
Credit is not Issued in violation of SECTION 2.02(a), relieve any
Lender of its obligations hereunder to such Issuing Bank. In
determining whether to pay under any Letter of Credit, the respective
Issuing Bank shall have no obligation to the Lenders or any Borrower
other than to confirm that any documents required to be delivered under
a respective Letter of Credit appear to have been delivered by the
appropriate Person and that they appear on their face to comply with
the requirements of such Letter of Credit.
(e) PARTICIPATIONS.
(i) Immediately upon Issuance by an Issuing Bank of any Letter
of Credit under the Domestic Facility or the Multicurrency Facility, as
applicable, for the account of any Borrower under such Credit Facility
in accordance with the procedures set forth in this SECTION 2.02, each
Lender holding a Commitment in such Credit Facility shall be deemed to
have irrevocably and unconditionally purchased and received from that
Issuing Bank, without recourse or warranty, an undivided interest and
participation in such Letter of Credit to the extent of such Lender's
Pro Rata Share under the Credit Facility, including, without
limitation, all obligations of such Borrower with respect thereto
(other than amounts owing to the Issuing Bank under SECTION 2.02(g))
and any security therefor and guaranty pertaining thereto.
(ii) If the Issuing Bank makes any payment under any Letter of
Credit for the account of any Borrower and such Borrower does not repay
such amount to the Issuing Bank on the Reimbursement Date, the Issuing
Bank shall promptly notify the Administrative Agent, which shall
(unless the notice described in SECTION 2.03(b) has been given) notify
the Swing Loan Bank (with respect to any Domestic Borrower) or the
Overdraft Line Bank (with respect to the Multicurrency Borrowers), and
if the Swing Loan Bank or Overdraft Line Bank, as applicable, so
elects, a Swing Loan under the Domestic Credit Facility or an Overdraft
Loan under the Multicurrency Facility, as applicable, can be made in
such amount, the proceeds of which shall be paid to the
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Administrative Agent for the account of such Issuing Bank, in
immediately available funds, and the Administrative Agent shall
promptly pay such proceeds to the Issuing Bank. In the event such
Issuing Bank cannot be so paid from proceeds of a Swing Loan or an
Overdraft Loan, as applicable, the Administrative Agent shall promptly
notify each Lender under such Credit Facility, and each such Lender
shall, unless the notice described in SECTION 2.03(b) has been given,
promptly and unconditionally pay to the Administrative Agent for the
account of such Issuing Bank, in immediately available funds, the
amount in the relevant Optional Currency of such Lender's Pro Rata
Share under the applicable Credit Facility of the payment made by such
Issuing Bank, and the Administrative Agent shall promptly pay to the
Issuing Bank such amounts received by it. In the event such payments
are made by such Lenders, such payments shall constitute Revolving
Loans made to the applicable Borrower under the applicable Credit
Facility pursuant to SECTION 2.01 (irrespective of the satisfaction of
the conditions in SECTION 5.02). If a Lender does not make its Pro Rata
Share under the applicable Credit Facility of the amount of any such
payment available to the Administrative Agent, such Lender agrees to
pay to the Administrative Agent for the account of the Issuing Bank,
forthwith on demand, such amount together with interest thereon, at the
interest rate then applicable in accordance with SECTION 4.01. The
failure of any such Lender to make available to the Administrative
Agent for the account of an Issuing Bank its Pro Rata Share under the
applicable Credit Facility of any such payment shall neither relieve
any other Lender of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Bank such other
Lender's Pro Rata Share under the applicable Credit Facility of any
payment on the date such payment is to be made nor increase the
obligation of any other Lender to make such payment to the
Administrative Agent. This Section does not relieve any Borrower of its
obligation to pay or repay any Lender funding its Pro Rata Share of
such payment pursuant to this Section interest on the amount of such
payment from such date such payment is to be made until the date on
which payment is repaid in full.
(iii) Whenever an Issuing Bank receives a payment on account
of a Reimbursement Obligation, including any interest thereon, as to
which the Swing Loan Bank has made a Swing Loan, the Overdraft Line
Bank has made an Overdraft Loan or any Lender has made a Revolving Loan
pursuant to SECTION 2.02(e)(ii), such Issuing Bank shall promptly pay
to the Administrative Agent such payment in accordance with SECTION
3.02.
(iv) Upon the request of any Lender under the applicable
Credit Facility, an Issuing Bank shall furnish such Lender copies of
any Letter of Credit or Letter of Credit Reimbursement Agreement to
which such Issuing Bank is party and such other documentation as
reasonably may be requested by such Lender.
(v) The obligations of any Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect
to a Letter of Credit shall be irrevocable, shall not be subject to any
qualification or exception whatsoever (except the Issuance of the
Letter of Credit in contravention of this SECTION 2.02) and shall be
made in accordance with this Agreement (irrespective of the
satisfaction of the conditions
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described in SECTIONS 5.01 and 5.02) under all circumstances,
including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability hereof or of any of
the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right
which any Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of a beneficiary
named in a Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the
Issuing Bank, any Lender, or any other Person, whether in
connection herewith, with any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the account
party and beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented
under the Letter of Credit having been determined to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan Documents;
(E) any failure by such Issuing Bank to make any reports
required pursuant to SECTION 2.02(h) or the inaccuracy of any
such report; or
(F) the occurrence of any Event of Default or Default.
(f) PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(i) Each Borrower for whose account a Letter of Credit has
been Issued unconditionally agrees to pay to each Issuing Bank the
amount of all Reimbursement Obligations, interest and other amounts
payable to such Issuing Bank under or in connection with such Letter of
Credit when such amounts are due and payable, irrespective of any
claim, setoff, defense or other right which such Borrower may have at
any time against such Issuing Bank or any other Person.
(ii) In the event any payment by a Borrower received by an
Issuing Bank with respect to a Letter of Credit Issued for the account
of such Borrower and distributed by the Administrative Agent to the
Lenders under the applicable Credit Facility on account of their
participation is thereafter set aside, avoided or recovered from such
Issuing Bank in connection with any receivership, liquidation or
bankruptcy proceeding, each such Lender which received such
distribution shall, upon demand by such Issuing Bank, contribute such
Lender's Pro Rata Share under such Credit Facility of the amount set
aside, avoided or recovered together with interest at the rate required
to be paid by such Issuing Bank upon the amount required to be repaid
by it.
(g) ISSUING BANK FEES AND CHARGES. Each Borrower for whose
account a Letter of Credit has been Issued agrees to pay to each Issuing Bank,
solely for its own account,
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(i) a fronting fee in an amount equal to one-quarter of one percent (0.25%) on
the face amount of such Letter of Credit, and (ii) the standard charges assessed
by such Issuing Bank in connection with the issuance, administration, amendment
and payment or cancellation of such Letter of Credit.
(h) ISSUING BANK REPORTING REQUIREMENTS. Each Issuing Bank
shall, on the day it Issues such a Letter of Credit, provide to the
Administrative Agent separate schedules for Commercial Letters of Credit and
Standby Letters of Credit Issued by it, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate Letter of
Credit Obligations of each Borrower under the applicable Credit Facility
outstanding to it as of such date and any information requested by the
Administrative Agent relating to the date of issue, account party, amount,
expiration date and reference number of each Letter of Credit Issued by it. On
each Overdraft Settlement Date (with respect to the Multicurrency Facility) and
on each Swing Loan Settlement Date (with respect to the Domestic Facility), the
Administrative Agent shall provide to each Lender under the applicable Credit
Facility copies of the most recent schedules provided to it by each Issuing Bank
under such Credit Facility.
(i) INDEMNIFICATION; EXONERATION.
(i) In addition to all other amounts payable to an Issuing
Bank, each Borrower for whose account such Issuing Bank has Issued a
Letter of Credit agrees to defend, indemnify, and save the
Administrative Agent, such Issuing Bank and each Lender under the
applicable Credit Facility harmless from and against any and all
claims, demands, liabilities, penalties, damages, losses (other than
loss of profits), costs, charges and expenses (including reasonable
attorneys' fees but excluding taxes) which the Administrative Agent,
such Issuing Bank or such Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the Issuance of such Letter of
Credit other than as a result of the gross negligence or willful
misconduct of such Issuing Bank, as determined by a court of competent
jurisdiction, or (B) the failure of such Issuing Bank Issuing a Letter
of Credit to honor a drawing under such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or
future DE JURE or DE FACTO government or Governmental Authority.
(ii) As between the Domestic Borrowers on the one hand and the
Administrative Agent, the Domestic Lenders and the Issuing Bank under
the Domestic Facility on the other hand, such Borrowers assume all
risks of the acts and omissions of, or misuse of Letters of Credit by,
the respective beneficiaries of the Letters of Credit Issued pursuant
to the Domestic Facility. As between the Multicurrency Borrowers on the
one hand and the Administrative Agent, Multicurrency Lenders and the
Issuing Bank under the Multicurrency Facility on the other hand, such
Borrowers assume all risks of the acts and omissions of, or misuse of
Letters of Credit by, the respective beneficiaries of the Letters of
Credit issued pursuant to the Multicurrency Facility. In furtherance
and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit Reimbursement Agreements, the Administrative
Agent, the Issuing Bank and the Lenders shall not be responsible for:
(A) the form, validity, legality, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with
the application for and Issuance of the Letters of Credit, even if it
should in fact prove to
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be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) the validity, legality or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason; (C) failure of the beneficiary of a Letter of Credit to comply
duly with conditions required in order to draw upon such Letter of
Credit; (D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (G) the
misapplication by the beneficiary of a Letter of Credit of the proceeds
of any drawing under such Letter of Credit; (H) any litigation,
proceeding or charges with respect to such Letter of Credit; and (I)
any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Bank or the Lenders; except in the
cases of CLAUSES (A) (with respect to form only), (B), (C), (D), (E),
(F), (H) AND (I) Bank, as determined in a judgment by a court of
competent jurisdiction.
(j) OBLIGATIONS SEVERAL. The obligations of each Issuing Bank
and each Domestic Lender under this SECTION 2.02 are several and not joint, and
no Issuing Bank or Domestic Lender shall be responsible for the obligation to
Issue Letters of Credit or participation obligation hereunder, respectively, of
any other Issuing Bank or Domestic Lender.
2.03. PARTICIPATIONS IN CREDIT FACILITIES.
(a) (i) Each Domestic Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Multicurrency Lenders (excluding,
if applicable, such Domestic Lender and any Affiliate of such Domestic Lender in
their capacity as Multicurrency Lenders; all such non-excluded Multicurrency
Lenders, the "SELLING MULTICURRENCY LENDERS") an unfunded participation in the
Credit Facility Outstandings of such Selling Multicurrency Lenders under the
Multicurrency Facility, including without limitation (A) the Multicurrency
Loans, (B) the participations purchased by such Multicurrency Lenders in the
Letters of Credit issued by the Issuing Bank pursuant to SECTION 2.02(e), (C)
the Loans made or required to be made pursuant to SECTION 2.01(h), and (D)
amounts in respect of Protective Advances under the Multicurrency Facility
required to be paid under SECTION 12.09(a), and (ii) each Multicurrency Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the
Domestic Lenders (excluding, if applicable, such Multicurrency Lender and any
Affiliate of such Multicurrency Lender in their capacity as Domestic Lenders;
all such non-excluded Domestic Lenders, the "SELLING DOMESTIC LENDERS") an
unfunded participation in the Credit Facility Outstandings of such Selling
Domestic Lenders under the Domestic Facility, including without limitation (A)
the Domestic Loans, (B) the participations purchased by such Domestic Lenders in
the Letters of Credit issued by the Issuing Bank pursuant to SECTION 2.02(e),
(c) the Loans made or required to be made pursuant to SECTION 2.01(g), and (D)
amounts in respect of Protective Advances under the Domestic Facility required
to be paid under SECTION 12.09(a); in each case, each Lender's participation
shall be equal to such Lender's Pro Rata Share in respect of all of the Credit
Facilities.
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(b) By 12:00 p.m. (New York time with respect to the Domestic
Lenders and London time with respect to the Multicurrency Lenders) on the
Business Day immediately following the Business Day on which the Obligations
have been accelerated pursuant to SECTION 11.02(a), the Administrative Agent
shall notify each Lender of the aggregate principal amount of all outstanding
Loans, Reimbursement Obligations and Protective Advances of the Selling
Multicurrency Lenders (with respect to the Domestic Lenders) and of the Selling
Domestic Lenders (with respect to the Multicurrency Lenders) (together with any
accrued and unpaid interest thereon) to be purchased by each applicable Lender
pursuant to SECTION 2.03(a) as of the close of business on the Business Day
immediately preceding the date of such notice (each such Business Day being the
"PARTICIPATION SETTLEMENT DATE"), such amount being stated in the Optional
Currency in which the Credit Facility Outstandings being purchased are
denominated (or the Dollar Equivalent of such amount (plus reasonable foreign
exchange costs) in the case of purchases by a Domestic Lender which is not a
Multicurrency Lender and which does not have an Affiliate which is a
Multicurrency Lender) (the "PARTICIPATION AMOUNT"). Each Lender shall, not later
than 3:00 p.m. (New York or London time, as applicable with respect to the
Domestic Lenders and the Multicurrency Lenders, respectively) on the fifth
Business Day following the date of such notice, pay to the Administrative Agent
for the account of the Applicable Lender (in the case of Loans), the Issuing
Bank (in the case of Reimbursement Obligations) and/or the Administrative Agent
(in the case of Protective Advances), in immediately available funds, the
applicable Participation Amount, and the Administrative Agent shall promptly pay
to the applicable Holder, that portion of the Participation Amount owing to such
Holder (less such foreign exchange costs) received by the Administrative Agent.
(c) Each Lender hereby agrees that its obligations under this
SECTION 2.03 are irrevocable and shall not be subject to any qualification or
exception whatsoever and shall be made in accordance with this Agreement
(irrespective of the satisfaction of the conditions described in SECTIONS 5.01
and 5.02) under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability hereof or of any of
the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which any Borrower may have at any time against the
Administrative Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection herewith, the transactions contemplated
herein or any unrelated transactions;
(iii) any adverse change in the condition (financial or
otherwise) of any Credit Party;
(iv) any breach of this Agreement by any Borrower, Borrower
Subsidiary, Administrative Agent, Issuing Bank or Lender;
(v) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(vi) the occurrence of any Event of Default or Default; or
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(vii) any other circumstance, happening, or event whatsoever,
whether or not similar to any of the foregoing.
(d) If and to the extent any Lender shall not have made
available to the Administrative Agent on the Participation Settlement Date any
amount payable by such Lender on the Participation Settlement Date pursuant to
this SECTION 2.03, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount in the applicable currency together with
interest thereon, for each day from the Participation Settlement Date until the
date such amount is paid to the Administrative Agent, for three (3) Business
Days at the Interbank Rate and thereafter at the interest rate applicable to the
Loans denominated in such currency hereunder. The failure of any such Lender to
make available to the Administrative Agent for the account of the applicable
Holder its Participation Amount shall neither relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent for the
account of the applicable Holder such other Lender's Participation Amount on the
date such payment is to be made nor increase the obligation of any other Lender
to pay its Participation Amount to the Administrative Agent. This Section does
not relieve any Borrower of its obligation to pay or repay any Lender funding
pursuant to this Section interest on the amount of such payment from such date
such payment is to be made until the date on which payment is repaid in full.
2.04. EVIDENCE OF INDEBTEDNESS. Each Borrower hereby agrees to
pay when due the principal amount of each Loan which is made to it and other
Obligations owing by it (whether or not evidenced by a Note), and further agrees
to pay all unpaid interest accrued thereon, in accordance with the terms hereof
and, to the extent evidenced thereby, of the Notes. On the Closing Date, (a) the
Domestic Borrowers shall execute and deliver to each Domestic Lender Domestic
Loan Notes in a principal amount equal to the maximum amount of such Lender's
Domestic Commitment evidencing the Loans to such Borrowers made under the
Domestic Facility, (b) the Multicurrency Borrowers shall execute and deliver to
the Multicurrency Lenders Multicurrency Loan Notes in a principal amount equal
to the maximum amount of such Lender's Multicurrency Commitment evidencing the
Loans to such Borrowers made under the Multicurrency Facility, and (c) the
Domestic Borrowers shall execute and deliver to the Swing Loan Bank a Swing Loan
Note in a principal amount equal to the Maximum Swing Loan Amount. Thereafter
each Borrower, as applicable, shall execute and deliver such other promissory
notes substantially in the form of the Notes issued on the Closing Date as are
necessary to evidence the Loans owing to the applicable Lenders after giving
effect to any assignment thereof pursuant to SECTION 14.01, all in form and
substance acceptable to the Administrative Agent and the parties to such
assignment, provided that the promissory notes being replaced are returned to
such Borrower or other arrangements satisfactory to such Borrower and the
Administrative Agent are made. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the Indebtedness of the
Borrowers to such Lender under each Credit Facility in which it is a Lender
resulting from each Loan made under such Credit Facility owing to such Lender
from time to time, including the amount of principal and interest payable and
paid to such Lender from time to time hereunder and under each of the Notes.
2.05. AUTHORIZED OFFICERS AND ADMINISTRATIVE AGENTS. On the
Closing Date and from time to time thereafter, the Borrowers shall deliver to
the Administrative Agent an Officers' Certificate setting forth the names of the
officers, employees and agents authorized to request
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Revolving Loans, Swing Loans, Overdraft Loans and Letters of Credit and
containing a specimen signature of each such officer, employee or agent. The
officers, employees and agents so authorized shall also be authorized to act for
the Borrowers in respect of all other matters relating to the Loan Documents.
The Administrative Agent shall be entitled to rely conclusively on such
officer's or employee's authority to request such Loan or Letter of Credit until
the Administrative Agent receives written notice to the contrary. In addition,
the Administrative Agent shall be entitled to rely conclusively on any written
notice sent to it by telecopy. The Administrative Agent shall have no duty to
verify the authenticity of the signature appearing on, or any telecopy or
facsimile of, any written Notice of Borrowing or any other document, and, with
respect to an oral request for such a Loan or Letter of Credit, the
Administrative Agent shall have no duty to verify the identity of any person
representing himself or herself as one of the officers, employees or agents
authorized to make such request or otherwise to act on behalf of the Borrowers.
None of the Administrative Agent, any Lender or the Issuing Bank shall incur any
liability to the Borrowers or any other Person in acting upon any telecopy or
facsimile or telephonic notice referred to above which the Administrative Agent
reasonably believes to have been given by a duly authorized officer or other
person authorized to act on behalf of the Borrowers.
2.06. BOOKING OF LOANS AND LETTERS OF CREDIT. Any Lender and
any Issuing Bank may make, carry or transfer Loans or Issue Letters of Credit
at, to or for the account of its Fixed Rate Lending Office or Fixed Rate
Affiliate or its other offices or Affiliates (without complying with the
requirements of SECTION 13.01). No Lender shall be entitled, however, to receive
any greater amount under SECTIONS 3.04, 3.05, 4.01(f) or 4.02(e) as a result of
the transfer of any such Loan or Letter of Credit to any office (other than such
Fixed Rate Lending Office) or any Affiliate (other than such Fixed Rate
Affiliate) than such Lender or Issuing Bank would have been entitled to receive
immediately prior thereto, unless, such Lender or Issuing Bank, as the case may
be, provides reasonably satisfactory evidence to the Company that (i) the
transfer occurred at a time when circumstances giving rise to the claim for such
greater amount did not exist and (ii) such claim in the relevant amount would
have arisen even if such transfer had not occurred. No Fixed Rate Affiliate or
such other Affiliate of any Lender or Issuing Bank shall, in its capacity as
such, be deemed a party hereto or have any liability or obligation hereunder.
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. PREPAYMENTS; REDUCTIONS IN AND REALLOCATIONS OF
COMMITMENTS. Subject to SECTION 3.06, all payments in respect of the Domestic
Borrowers' Obligations shall be made to the Domestic Concentration Account and
all payments in respect of the Multicurrency Borrowers' Obligations shall be
made to the Multicurrency Payment Account.
(a) VOLUNTARY REDUCTIONS OF COMMITMENTS.
(i) Subject to SECTION 3.01(e), the Domestic Borrowers, upon
at least three (3) Business Days' prior written notice to the
Administrative Agent, shall have the right, from time to time, to
terminate in whole the Domestic Commitments or permanently reduce in
part the Domestic Commitments, provided that the Domestic Borrowers
shall have made or caused to be made any payment required to be made
pursuant to SECTION
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3.01(b)(i) after giving effect to such reduction, and, provided,
further, that after giving effect to such reduction, the aggregate
Domestic Commitments are greater than or equal to sixty percent (60%)
of the aggregate Commitments. Subject to SECTION 3.01(e), the
Multicurrency Borrowers, upon at least five (5) Business Days' prior
written notice to the Administrative Agent, shall have the right, from
time to time, to terminate in whole the Multicurrency Commitments or
permanently reduce in part the Multicurrency Commitments, provided that
the Multicurrency Borrowers shall have made or caused to be made any
payment required to be made pursuant to SECTION 3.01(b)(i) after giving
effect to such reduction.
(ii) Any partial reduction of a Lender's Commitment (A) shall
be applied to such Lender's applicable Commitment, (B) shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount, and (iii) shall reduce the
aggregate applicable Commitment of such Lender (or, where applicable,
its Affiliate) proportionately in accordance (x) with respect to a
reduction of the Multicurrency Commitments, its Pro Rata Share of the
applicable Credit Facility and (y) with respect to a reduction of the
Domestic Commitments, their aggregate Pro Rata Share of all Credit
Facilities. Any notice of termination or reduction given to the
Administrative Agent under this SECTION 3.01(a) shall specify the date
(which shall be a Business Day) of such termination or reduction and,
with respect to a partial reduction, the aggregate principal amount
thereof. When notice of termination or reduction of any Commitment is
delivered as provided herein, the principal amount of the Revolving
Loans under the Credit Facility so reduced shall become due and payable
on the date specified in such notice to the extent the Credit Facility
Outstandings under such Credit Facility would exceed the Maximum Credit
Amount for such Credit Facility after giving effect to such reduction.
The payments in respect of reductions and terminations described in
this SECTION 3.01(a) may be made without premium or penalty (except as
provided in SECTION 4.02(e)).
(b) MANDATORY PREPAYMENTS OF REVOLVING LOANS.
(i) Immediately, if at any time the Credit Facility
Outstandings under any Credit Facility, the Euro Subfacility or the
Sterling Subfacility are greater than the Maximum Credit Amount for
such Credit Facility, the Euro Subfacility or the Sterling Subfacility,
as applicable, the applicable Borrower or Borrowers shall make a
mandatory repayment of such Credit Facility Outstandings in an
aggregate amount sufficient to reduce any such excess to zero, such
amounts to be applied to the Obligations of the Borrower or Borrowers
making such payments in accordance with SECTION 3.02. In addition, if
at any time the Maximum Credit Amount for any Credit Facility is less
than the amount of contingent Letter of Credit Obligations outstanding
under such Credit Facility at such time, the applicable Borrower or
Borrowers agree to deposit and maintain Cash Collateral in the
applicable Cash Collateral Account in a Dollar Equivalent amount equal
to the amount by which such Letter of Credit Obligations exceed such
Maximum Credit Amount.
(ii) Subject to SECTION 3.06, prior to 1:00 p.m. (New York
time), with respect to payments under the Domestic Facility, and 4:00
p.m. (London time), with respect to
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payments under the Multicurrency Facility, on each Business Day, from
funds on deposit in (A) (x) the Domestic Concentration Account and (y)
if necessary to repay in full all Credit Facility Outstandings under
the Domestic Facility, the Domestic Cash Collateral Account, and (B)
(x) the Multicurrency Concentration Accounts and (y) if necessary to
repay in full all Credit Facility Outstandings under the Multicurrency
Facility, the Multicurrency Cash Collateral Accounts, the
Administrative Agent shall transfer funds in accordance with SECTION
3.06 and thereby cause (1) the Domestic Borrowers (in the case of
CLAUSE (A) above) to make a mandatory repayment of the Credit Facility
Outstandings owing by such Domestic Borrowers on such Business Day in
an amount equal to: FIRST, any and all Non Pro Rata Fundings made to
such Borrowers on a pro rata basis, SECOND, any and all outstanding
Protective Advances made on behalf of such Borrowers, THIRD, any and
all outstanding Swing Loans made to such Borrowers, FOURTH, any and all
outstanding Revolving Loans made to such Borrowers, and FIFTH, the
repayment of the Credit Facility Outstandings and other Obligations
owing by such Borrowers then outstanding, in each case in accordance
with the applicable provisions of SECTION 3.02, and (2) the
Multicurrency Borrowers (in the case of CLAUSE (B) above) to make a
mandatory repayment of the Credit Facility Outstandings owing by such
Multicurrency Borrowers on such Business Day in an amount equal to:
FIRST, any and all Non Pro Rata Fundings made to such Borrowers on a
pro rata basis, SECOND, any and all outstanding Protective Advances
made on behalf of such Borrowers, THIRD, any outstanding Multicurrency
Revolving Loans then due and payable, FOURTH, any and all outstanding
Overdraft Loans made to such Multicurrency Borrowers, FIFTH, any and
all outstanding Revolving Loans made to such Multicurrency Borrowers,
and SIXTH, the repayment of the Credit Facility Outstandings and other
Obligations owing by such Multicurrency Borrowers then outstanding, in
each case in accordance with the applicable provisions of SECTION 3.02.
(iii) Immediately (or, in the case of Net Cash Proceeds of
Sale under SECTION 8.13(b), five (5) Business Days) after any
Borrower's or any Borrower Subsidiary's receipt of any Net Cash
Proceeds of Sale, each Borrower receiving, or the Subsidiary of which
has received, such Net Cash Proceeds of Sale agrees to make or cause to
be made a mandatory prepayment of its Loans in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds of Sale, such amounts
to be applied to the Obligations of the (A) if such Borrower is a
Domestic Borrower, the Domestic Borrowers and the Multicurrency
Borrowers, and (B) if such Borrower is a Multicurrency Borrower, the
Multicurrency Borrowers, in each case, in accordance with SECTION 3.02.
Each mandatory prepayment required to be paid by any Borrower by this
SECTION 3.01(b)(iii) shall be allocated and applied FIRST, to the
repayment of the Revolving Loans owed by the applicable Borrowers;
SECOND, to any remaining non-contingent Obligations of the applicable
Borrowers; and THEN, to the extent any such Obligations are contingent,
deposited in the applicable Cash Collateral Account as Cash Collateral
in respect of such contingent Obligations. Each mandatory prepayment
required to be paid by any Borrower by this SECTION 3.01(b)(iii) shall
be followed by a corresponding permanent reduction of the Commitments
under the Credit Facility applicable to such Borrower in an amount
equal to the related Net Cash Proceeds of Sale which have not been
reinvested in Additional Assets on or before the one-year anniversary
of the receipt of such Net Cash Proceeds of Sale, with such
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reduction taking effect on the one year anniversary after such receipt;
provided, however, that such reduction shall take effect prior to such
date if the applicable Borrower notifies the Administrative Agent that
it does not intend to reinvest such Net Cash Proceeds of Sale in
Additional Assets (all such reductions shall reduce the aggregate
Commitments of each Lender (and where applicable, its Affiliate)
proportionately in accordance with its (or their, where applicable)
aggregate Pro Rata Share of all Credit Facilities.
(iv) Immediately after any Borrower's or any of the Borrower
Subsidiaries receipt of any Net Cash Proceeds of Issuance of Equity
Securities or Indebtedness, each Borrower receiving, or the Subsidiary
of which has received, such Net Cash Proceeds of Issuance of Equity
Securities or Indebtedness agrees to make or cause to be made a
mandatory prepayment of its Loans in an amount equal to one hundred
percent (100%) of such Net Cash Proceeds of Issuance of Equity
Securities or Indebtedness. Each mandatory prepayment required to be
paid by any Borrower by this SECTION 3.01(b)(iv) shall be allocated and
applied FIRST, to the repayment of the Revolving Loans owed by such
Borrower; SECOND, to any remaining non-contingent Obligations of such
Borrower; and THEN, to the extent any such Obligations are contingent,
deposited in the applicable Cash Collateral Account as Cash Collateral
in respect of such contingent Obligations, in each case in accordance
with the applicable provisions of SECTION 3.02. Each mandatory
prepayment required to be paid by any Borrower by this SECTION
3.01(b)(iv) shall be accompanied by a corresponding permanent reduction
of the Commitments under the Credit Facility applicable to such
Borrower in an amount equal to fifty percent (50.0%) of such Net Cash
Proceeds of Issuance of Equity Securities or Indebtedness (all such
reductions shall reduce the aggregate Commitments of each Lender (and
where applicable, its Affiliate) proportionately in accordance with its
(or where applicable, their) aggregate Pro Rata Share of all Credit
Facilities.
(v) Nothing in this SECTION 3.01(b) shall be construed to
constitute the Lenders' consent to any transaction which is not
expressly permitted by ARTICLE IX.
(c) REALLOCATIONS OF SUBFACILITY COMMITMENTS. The
Multicurrency Borrowers, upon three (3) Business Days' written notice to the
Administrative Agent and with the consent of the Administrative Agent (to be
exercised in its sole discretion), may request (a "SUBFACILITY REALLOCATION
REQUEST"), no more than twelve (12) times in any Fiscal Year, that the
Subfacility Commitment of either Subfacility be reduced by an amount equal to
not less than $1,000,000 (such amount, the "SUBFACILITY REDUCTION AMOUNT"), and
that the Subfacility Commitment for the other Subfacility be correspondingly
increased by the Subfacility Reduction Amount; provided that a Subfacility
Reallocation Request may not be made if, after giving effect to the proposed
reallocation, the aggregate amount of the Multicurrency Commitments would exceed
the maximum permitted amount of the Multicurrency Facility in effect at such
time. It is agreed and understood that, in connection with any such
reallocation, (i) the Pro Rata Shares of the Multicurrency Lenders under the
Multicurrency Facility shall not change and (ii) the amount of the aggregate
Commitments of all Multicurrency Lenders before and after such reallocation
shall not change. After receiving a Subfacility Reallocation Request, the
Administrative Agent shall notify the Multicurrency Lenders of such Subfacility
Reallocation Request.
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(d) REALLOCATIONS OF COMMITMENTS. The Domestic Borrowers or
the Multicurrency Borrowers, upon five (5) Business Days' written notice to the
Administrative Agent, may request (a "COMMITMENT REALLOCATION REQUEST"), no more
than four (4) times in any Fiscal Year, that a Lender under a Credit Facility
reduce its Commitment under such Credit Facility by an amount equal to not less
than $1,000,000 (such amount, the "COMMITMENT REDUCTION AMOUNT"), and that the
Commitment of such Lender under the other Credit Facility (or its Affiliate
which is a Lender under such Credit Facility), as selected by such Borrowers in
the Commitment Reallocation Request, be correspondingly increased by the
Commitment Reduction Amount; provided that a Commitment Reallocation Request may
not be made if, after giving effect to the proposed reallocation, (i) the
aggregate amount of the Multicurrency Commitments would exceed the maximum
amount of the aggregate Multicurrency Commitments in effect at such time
(determined in accordance with the definitions of "Commitments" and
"Multicurrency Commitment"), (ii) the aggregate amount of the Domestic
Commitments would exceed the maximum amount of the aggregate Domestic
Commitments in effect at such time (determined in accordance with the
definitions of "Commitments" and "Domestic Commitments", or (iii) the aggregate
Domestic Commitments would be less than sixty percent (60%) of the aggregate
Commitments. After receiving a Commitment Reallocation Request, the
Administrative Agent shall notify each affected Lender of such Commitment
Reallocation Request, and such Commitments shall be adjusted as contemplated
thereby on the date set forth in such Commitment Reallocation Request.
Notwithstanding anything to the contrary in the foregoing, a Commitment
Reallocation Request may not be made with respect to any Lender under any Credit
Facility that is not a Lender under both Credit Facilities or does not have an
Affiliate that is a Lender under the other Credit Facility.
(e) ADDITIONAL CONDITIONS TO COMMITMENT REALLOCATIONS AND
REDUCTIONS. In connection with any reallocation of Commitments under SECTION
3.01(d) or reduction of Commitments under SECTION 3.01(a) or SECTION 3.01(b),
neither the Pro Rata Shares of the Multicurrency Lenders under the Multicurrency
Facility, nor the aggregate Pro Rata Share under all Credit Facilities of a
Lender and its Affiliated Lenders shall change unless the Multicurrency
Commitment is permanently reduced to zero. In the case of a reallocation of
Commitments under SECTION 3.01(d), neither the aggregate Commitment of a Lender
and its Affiliated Lenders nor the amount of the aggregate Commitments of all
Lenders, in each case, before and after such reallocation shall change.
3.02. PAYMENTS.
(a) MANNER AND TIME OF PAYMENT. All payments of principal of
and interest on the Loans and Reimbursement Obligations and other Obligations
(including, without limitation, fees and expenses) which are payable to the
Administrative Agent, the Lenders or the Issuing Bank shall be made without
condition or reservation of right, in immediately available funds, delivered to
the Administrative Agent (or, in the case of Reimbursement Obligations, to the
pertinent Issuing Bank) not later than 1:00 p.m. (New York time) to the Domestic
Concentration Account (or, in the case of Reimbursement Obligations, such
account of the Issuing Bank as it may designate), with respect to payments under
the Domestic Facility, and 4:00 p.m. (London time) to the Multicurrency
Concentration Account for the relevant Specified Foreign Currency (or, in the
case of Reimbursement Obligations, such account of the Issuing Bank as it may
designate), with respect to payments under the Multicurrency Facility, on the
date
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due. Thereafter, payments in respect of any Swing Loans received by the
Administrative Agent shall be distributed to the Swing Loan Bank, payments in
respect of any Overdraft Loans received by the Administrative Agent shall be
distributed to the Overdraft Line Bank, and payments in respect of any Revolving
Loan received by the Administrative Agent shall be distributed to each Lender
under the applicable Credit Facility in accordance with its Pro Rata Share of
such Credit Facility (without giving effect to any adjustment of such Pro Rata
Share in connection with a substantially simultaneous reallocation or reduction
of the Commitment under the Domestic Credit Facility, in the case of payments to
the Domestic Lenders) in accordance with the provisions of SECTION 3.02(b) on
the date received, if received prior to 1:00 p.m. (New York time) with respect
to Domestic Obligations and prior to 4:00 p.m. (London time) with respect to
Multicurrency Obligations, and (except in the case of repayment of Swing Loans
and Overdraft Loans) on the next succeeding Business Day if received thereafter,
by the Administrative Agent.
(b) APPORTIONMENT OF PAYMENTS.
(i) Subject to the provisions of SECTION 3.02(b)(ii) and (iv),
except as otherwise provided herein (A) all payments of principal and
interest in respect of outstanding Revolving Loans under any Credit
Facility, and all payments in respect of Reimbursement Obligations
under any Credit Facility, shall be allocated among such of the Lenders
and Issuing Bank as are entitled thereto, in proportion to their
respective Pro Rata Shares of such Credit Facility and (B) all payments
of fees and all other payments in respect of any other Obligation shall
be allocated among such of the Lenders and Issuing Bank as are entitled
thereto, in proportion to their respective Pro Rata Shares of the
applicable Credit Facility (if such Obligation relates to such Credit
Facility) or otherwise in proportion to their respective Pro Rata
Shares of all the Credit Facilities. All such payments and any other
proceeds of Collateral or other amounts received by the Administrative
Agent from or for the benefit of a Borrower shall be applied FIRST, to
pay principal of and interest on any portion of the Loans made to such
Borrower which the Administrative Agent may have advanced pursuant to
the express provisions of this Agreement on behalf of any Lender other
than the Lender then acting as Administrative Agent, for which the
Administrative Agent has not then been reimbursed by such Lender or
such Borrower, SECOND, to pay principal of and interest on any
Protective Advance made to such Borrower for which the Administrative
Agent has not then been paid by such Borrower or reimbursed by the
Lenders, THIRD, to pay Loans of such Borrower as set forth below and to
pay all other Obligations of such Borrower then due and payable and
FOURTH, to such Borrower's Concentration Account, or if demand under
SECTION 11.02(b) has been made, such Borrower's Cash Collateral
Account, in each case, for the currency in which such payment is
denominated, to be held as Cash Collateral in accordance with this
Agreement, or if the Administrative Agent consents in its sole
discretion, to a Disbursement Account designated by the applicable
Borrower. Except as set forth in SECTIONS 3.01(a) and (b) and unless
otherwise designated by the Domestic Borrowers, all principal payments
made by any Domestic Borrower in respect of outstanding Swing Loans or
Revolving Loans of such Domestic Borrower, as the case may be, shall be
applied FIRST, to the outstanding Swing Loans and SECOND, to the
outstanding Revolving Loans of such Domestic Borrower, in each case,
FIRST, to repay outstanding Floating Rate
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Loans, and THEN to repay outstanding Fixed Rate Loans with Interest
Periods then expiring. Except as set forth in SECTIONS 3.01(a) and (b)
and unless otherwise designated by the Multicurrency Borrowers, all
principal payments made by any Multicurrency Borrower in respect of
outstanding Overdraft Loans or Revolving Loans of such Multicurrency
Borrower, as the case may be, shall be applied FIRST, to the Revolving
Loans with Interest Periods then expiring and SECOND to the outstanding
Overdraft Loans, in each case, denominated in the Specified Foreign
Currency of such payment.
(ii) After the occurrence and during the continuance of an
Event of Default, the Administrative Agent may, and shall upon the
acceleration of the Obligations pursuant to SECTION 11.02(a), apply all
payments in respect of any Domestic Obligations to the payment of the
Domestic Facility, all payments in respect of any Multicurrency
Obligations to the payment of the Multicurrency Facility, all proceeds
of Foreign Collateral to the payment of Multicurrency Obligations, and
all proceeds of Domestic Collateral to the payment of Domestic
Obligations, in the following order (it being understood that the
Administrative Agent shall have the right to convert, at a rate of
exchange equal to the Spot Rate as of such conversion date and at the
Borrowers' expense, any of such payments or proceeds of Collateral into
the currency in which such Obligations are denominated):
(A) FIRST, to pay interest on, and the principal of, any
portion of the Revolving Loans which the Administrative Agent
may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such
Lender or a Borrower;
(B) SECOND, to pay interest on, and then principal of, first
any outstanding Protective Advance;
(C) THIRD, to pay interest on, and the principal of, any Swing
Loan or Overdraft Loan;
(D) FOURTH, to pay Obligations in respect of (1) any expense
reimbursements or indemnities then due to the Administrative
Agent and (2) fees and expenses in respect of cash management
services provided to Borrowers and their Subsidiaries by the
Administrative Agent or any Affiliates of the Administrative
Agent, including, without limitation, those described in
SECTION 3.06(d);
(E) FIFTH, to pay Obligations in respect of any fees then due
to the Administrative Agent, the Lenders or the Issuing Bank;
(F) SIXTH, to pay interest due in respect of the Revolving
Loans, Reimbursement Obligations and in respect of the
Obligations arising under the Foreign Working Capital
Guaranty;
(G) SEVENTH, to pay or prepay (or, to the extent such
obligations are contingent, provide Cash Collateral (pursuant
to SECTION 11.02(b), if applicable) in respect of) all
outstanding Letter of Credit Obligations;
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(H) EIGHTH, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Lenders and the
Issuing Bank;
(I) NINTH, to pay or prepay principal outstanding on Revolving
Loans and all outstanding Obligations (other than in respect
of interest) arising under the Foreign Working Capital
Guaranty;
(J) TENTH, to the ratable payment of (or, to the extent such
obligations are contingent, provide Cash Collateral (pursuant
to SECTION 11.02(b), if applicable) Obligations in respect of
(1) Interest Rate Contracts to which the Administrative Agent
or any Affiliate of the Administrative Agent is a party and
(2) foreign exchange services (including Currency Agreements)
provided to any Borrower or Borrower Subsidiary by the
Administrative Agent or any Affiliate of the Administrative
Agent;
(K) ELEVENTH, to the ratable payment of all other Obligations;
and
(L) TWELFTH, as the applicable Borrower so designates;
provided, however, if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in
any of the foregoing CLAUSES (A) through (K), the available funds being
applied with respect to any such Obligations referred to in any one of
such clauses (unless otherwise specified in such clause) shall be
allocated to the payment of such Obligations ratably, based on the
proportion of the Administrative Agent's and each Lender's interest in
the aggregate outstanding Obligations described in such clauses.
Notwithstanding the foregoing, the Administrative Agent, the Lenders
and the Issuing Bank further agree and acknowledge that (x) in no event
shall proceeds of any Foreign Collateral, more than sixty-five percent
(65.0%) of the Capital Stock of any Foreign Subsidiary or amounts
received from any Foreign Credit Party as described herein be applied
on any of the Domestic Obligations, and (y) no application of Domestic
Collateral or payments with respect to the Multicurrency Borrower
Guaranty may be made to the Multicurrency Obligations until such time
as the aggregate outstanding Obligations owing to each Lender (and its
Affiliates) are in proportion to (or as near thereto as is reasonably
practicable) the outstanding Obligations owing to each other Lender
(and its Affiliates), in accordance with their respective Pro Rata
Shares of all Credit Facilities. The order of priority set forth in
this SECTION 3.02(b)(ii) and the related provisions hereof are set
forth solely to determine the rights and priorities of the
Administrative Agent, the Lenders, the Issuing Bank and other Holders
as among themselves. The order of priority set forth in CLAUSES (A)
through (K) of this SECTION 3.02(B)(II) may at any time and from time
to time be changed by the agreement of all Lenders without necessity of
notice to or consent of or approval by any Borrower, any Holder which
is not a Lender or Issuing Bank, or any other Person; provided,
however, the order of priority set forth in CLAUSES (A) through (D) of
this SECTION 3.02(b)(ii) may not be changed without the prior written
consent of the Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject
only to the terms of this SECTION 3.02(b)(iii), may pay from the
proceeds of Revolving Loans made under the
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applicable Credit Facility (which Loans may not have been requested by
a Borrower pursuant to a Notice of Borrowing) made to a Borrower
hereunder, whether made following a request by such Borrower pursuant
to SECTION 2.01 or 2.02 or a deemed request as provided in this SECTION
3.02(b)(iii), all amounts then due and payable by any Borrower
hereunder, including, without limitation, amounts payable with respect
to payments of principal, interest, Reimbursement Obligations and fees
and all reimbursements for expenses pursuant to SECTION 14.02. Each
Borrower hereby irrevocably authorizes the Swing Loan Bank (with
respect to the Domestic Borrowers only), the Overdraft Line Bank (with
respect to the Multicurrency Borrowers only) and the Lenders to make
Swing Loans, Overdraft Loans or Revolving Loans in the appropriate
Optional Currency, which Loans other than the Overdraft Loans shall be
Floating Rate Loans upon notice from the Administrative Agent as
described in the following sentence for the purpose of paying
principal, interest, Reimbursement Obligations and fees due from any
Borrower, reimbursing expenses pursuant to SECTION 14.02 or any other
Loan Document and paying any and all other amounts due and payable by
any Borrower hereunder or under the Notes, and agrees that all such
Loans so made shall be deemed to have been requested by it pursuant to
SECTION 2.01 and 2.02 as of the date of the aforementioned notice. The
Administrative Agent shall request Swing Loans, Overdraft Loans or
Revolving Loans on behalf of a Borrower as described in the preceding
sentence by notifying the Lenders under the applicable Credit Facility
by telex, telecopy, telegram or other similar form of transmission
(which notice the Administrative Agent shall thereafter promptly
transmit to such Borrower), of the amount and Funding Date of the
proposed Borrowing and that such Borrowing is being requested on such
Borrower's behalf pursuant to this SECTION 3.02(b)(iii). On the
proposed Funding Date, the Swing Loan Bank, Overdraft Line Bank or
Lenders under the relevant Credit Facility, as the case may be, shall
make the requested Loans in accordance with the procedures and subject
to the conditions specified in SECTION 2.01 or 2.02 (irrespective of
the satisfaction of the conditions described in SECTION 5.02 or the
requirement to deliver a Notice of Borrowing in SECTION 2.01(d), which
conditions and requirements, for the purposes of the payment of Swing
Loans, Overdraft Loans and Revolving Loans at the request of the
Administrative Agent as described in the preceding sentence, the
Lenders irrevocably waive). Notwithstanding the foregoing, Overdraft
Loans shall also be made at the direct request of the Multicurrency
Borrowers by notice to the Overdraft Line Bank in accordance with
SECTION 2.01(c)(i).
(iv) If any Lender fails to fund its Pro Rata Share of any
Revolving Loan Borrowing requested by a Borrower under any Credit
Facility, which such Lender is obligated to fund under the terms hereof
or any Revolving Loan or other amount required to be made under SECTION
2.01(g), 2.01(h), 2.02(e)(ii), 2.03, 3.02(b)(iii), 12.05 or 12.09(a)
(the funded portion of such Revolving Loan or other amount being
hereinafter referred to as a "NON PRO RATA FUNDING"; any such Lender
being hereinafter referred to as a "DEFAULTING LENDER"), excluding,
solely in the case of Revolving Loan Borrowings requested by a
Borrower, any such Lender who has delivered to the Administrative Agent
written notice that one or more of the conditions precedent contained
in SECTION 5.02 shall not on the date of such request be satisfied and
until such conditions are satisfied, THEN until the earlier of such
Lender's cure of such failure and the termination of the
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Commitments, the proceeds of all amounts thereafter received by the
Administrative Agent and required to be applied to such Lender's share
of all other Obligations pursuant to the terms hereof shall be advanced
to the Borrower requesting such Revolving Loan Borrowing or to the
applicable Holder to which such payment is owing by the Administrative
Agent on behalf of such Lender to cure, in full or in part, such
failure by such Lender, but shall nevertheless be deemed to have been
paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything contained herein to the contrary:
(A) the foregoing provisions of this SECTION 3.02(b)(iv) shall
apply only with respect to the proceeds of payments of
Obligations;
(B) a Lender shall cease to be a Defaulting Lender at such
time as an amount equal to such Lender's original Pro Rata
Share of the requested principal portion of such Revolving
Loan or such other amount is fully funded to the applicable
Borrower, whether made by such Lender itself or by operation
of the terms of this SECTION 3.02(b)(iv), and whether or not
the Non Pro Rata Funding with respect thereto has been repaid;
(C) amounts advanced to a Borrower to cure, in full or in
part, any such Defaulting Lender's failure to fund its Pro
Rata Share of any Revolving Loan Borrowing ("CURE FUNDINGS")
shall bear interest from and after the date made available to
the applicable Borrower at the rate applicable to the other
Revolving Loans comprising such Borrowing and shall be treated
as Revolving Loans comprising such Borrowing for all purposes
herein;
(D) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the
instructions of the Borrower as to its desired application,
all repayments of principal which, in accordance with the
other terms of this SECTION 3.02, would be applied to the
outstanding Revolving Loans shall be applied FIRST, ratably to
all Non Pro Rata Fundings, SECOND, ratably to Revolving Loans
or other amounts payable other than those constituting Non Pro
Rata Fundings or Cure Fundings and, THIRD, ratably to Cure
Fundings; and
(E) no Lender shall be relieved of any obligation such Lender
may have to the Borrower under the terms of this Agreement as
a result of the provisions of this SECTION 3.02(b)(iv).
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be
made by a Borrower hereunder or under the Notes is stated to be due on a day
which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in SECTION 4.02(a)(iv), the next
preceding Business Day), and any such extension of time shall be included in the
computation of the payment of interest and fees hereunder.
3.03. PRO RATA SHARES ADJUSTMENT. In the event the Pro Rata
Shares of the Lenders under a Credit Facility are altered after giving effect to
any Commitment Reallocation Request, after giving effect to any partial
reduction of the Commitments made pursuant to SECTION 3.01(a), after giving
effect to any mandatory reduction of the Commitments made pursuant to
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SECTION 3.02(b) or after giving effect to any participation under SECTION 2.03,
the Lenders whose Pro Rata Shares have increased as a result shall effect such
purchases of Loans from the other Domestic Lenders or Multicurrency Lenders, as
applicable, on the next Swing Loan Settlement Date (with respect to the Domestic
Lenders) and on the next Overdraft Loan Settlement Date (with respect to the
Multicurrency Lenders) such that after giving effect to such purchases each
Lender is owed Loans in an amount equal to its adjusted Pro Rata Share of the
Credit Facility Outstandings outstanding in respect of the applicable Credit
Facility.
3.04. TAXES.
(a) PAYMENT OF TAXES. Any and all payments by the Borrowers
hereunder or under any Note or other document evidencing any Obligations shall
be made free and clear of and without reduction for any and all taxes, levies,
imposts, deductions, charges, withholdings, and all stamp or documentary taxes,
excise taxes, ad valorem taxes and other taxes imposed on the value of the
Property, charges or levies which arise from the execution, delivery or
registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Commitments and all other liabilities with
respect thereto excluding, in the case of each Lender, each Issuing Bank and the
Administrative Agent, taxes imposed on its income, capital, receipts, property,
profits or gains and franchise taxes imposed on it by (i) the United States,
except certain withholding taxes contemplated pursuant to SECTION
3.04(d)(ii)(c), (ii) the Governmental Authority of any jurisdiction (or any
political subdivision thereof) in which any Applicable Lending Office of such
Lender is located, (iii) the Governmental Authority of the jurisdiction in which
such Lender is organized, managed and controlled or any political subdivision
thereof, (iv) any political subdivision of the United States, unless such taxes
are imposed solely as a result of such Lender's performance of any of the Loan
Documents in such political subdivision and such Lender would not otherwise be
subject to tax by such political subdivision, or (v) the United Kingdom, except
any deduction or withholding from any payment by a Borrower for or on account of
any tax in respect of any payments made hereunder or under any Note or other
document evidencing any Obligations to the Administrative Agent or otherwise on
behalf of any Lender or Issuing Bank arising (A) in respect of any Participation
Amount (provided that each Lender shall, where possible, make all reasonable
efforts to enable the relevant Borrower to make any such payment free of United
Kingdom withholding tax) or (B) by reason of a change in (or in the
interpretation, administration, or application of) any law of the United Kingdom
or any applicable tax treaty or any published practice or concession of any
relevant taxing authority after the later of the Closing Date or the date on
which such Lender became a Lender or such Issuing Bank became an Issuing Bank
(such non-excluded United Kingdom taxes being hereinafter referred to as
"INCLUDED UK WITHHOLDING TAXES") (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "TAXES"); provided, however, that neither withholding taxes contemplated
pursuant to SECTION 3.04(d)(ii)(C) nor Included UK Withholding Taxes shall be
excluded from Taxes by reason of the application of CLAUSE (ii) or CLAUSE (iii)
of this sentence to any Applicable Lending Office of a Lender or to any Lender,
respectively. If a Borrower shall be required by law to withhold or deduct any
Taxes from or in respect of any sum payable hereunder or under any Note or other
document evidencing any Obligations to any Lender, the Issuing Bank or the
Administrative Agent, (x) the sum payable to such Lender, such Issuing
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Bank or the Administrative Agent shall be increased as may be necessary so that
after making all required withholding or deductions (including withholding or
deductions applicable to additional sums payable under this SECTION 3.04) such
Lender, such Issuing Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) such Borrower shall make such
withholding or deductions, and (z) such Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) INDEMNIFICATION. (i) The Domestic Borrowers jointly and
severally agree to indemnify each Domestic Lender, the Issuing Bank and the
Administrative Agent, and (ii) the Multicurrency Borrowers jointly and severally
agree to indemnify the Multicurrency Lenders, the Issuing Bank and the
Administrative Agent, against, and reimburse each on demand for, the full amount
of all Taxes (including, without limitation, any Taxes imposed by any
Governmental Authority on amounts payable under this SECTION 3.04 and any
additional income or franchise taxes resulting therefrom) incurred or paid by
such Lender, the Issuing Bank or the Administrative Agent (as the case may be
but only to the extent relating to the applicable Credit Facility) or any of
their respective Affiliates and any liability (including penalties, interest,
and out-of-pocket expenses paid to third parties) arising therefrom or with
respect thereto, whether or not such Taxes were lawfully payable (other than any
liability that results from the gross negligence or willful misconduct of the
Lenders and the Administrative Agent), and whether or not such Taxes were
correctly or legally asserted by the relevant taxing authority or other
Governmental Authority. A certificate as to any additional amount payable to any
Person under this SECTION 3.04 submitted by it to any Borrower shall, absent
manifest error, be final, conclusive and binding upon all parties hereto. Each
Lender, the Administrative Agent and each Issuing Bank agrees (i) within a
reasonable time after receiving a written request from any Borrower, to provide
such Borrower and the Administrative Agent with such certificates as are
reasonably required, and (ii) take such other actions as are reasonably
necessary to claim such exemptions as such Lender, the Administrative Agent or
such Issuing Bank or Affiliate may be entitled to claim in respect of all or a
portion of any Taxes which are otherwise required to be paid or deducted or
withheld pursuant to this SECTION 3.04 in respect of any payments under this
Agreement or under the Notes. If any Lender or the Administrative Agent receives
a refund in respect of any Taxes for which such Lender or the Administrative
Agent has received payment from a Borrower hereunder, it shall promptly apply
such refund (including any interest received by such Lender or the
Administrative Agent from the taxing authority with respect to the refund with
respect to such Taxes) to the Obligations of such Borrower, net of all
out-of-pocket expenses of such Lender or the Administrative Agent; provided that
such Borrower, upon the request of such Lender or the Administrative Agent,
agrees to reimburse such refund (plus penalties, interest or other charges) to
such Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund. Each Multicurrency
Borrower jointly and severally agrees to pay and indemnify each Multicurrency
Lender, Issuing Bank and the Administrative Agent against any cost, loss or
liability that such Person incurs in relation to all stamp duty, registration
and other similar taxes payable in respect of any Loan Document. Each Domestic
Borrower jointly and severally agrees to pay and indemnify each Domestic Lender,
Issuing Bank and the Administrative Agent against any cost, loss or liability
that such Person incurs in relation to all stamp duty, registration and other
similar taxes payable in respect of any Loan Document. Each Domestic Borrower
jointly and severally agrees, and
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each Multicurrency Borrower jointly and severally agrees, to pay promptly any
stamp duty (and any interest or penalty in connection therewith) which is
payable on any Receivables Sale Agreement (or any document executed in
connection therewith) if it becomes reasonably necessary that the UK Borrower
prove its entitlement to Receivables which are the subject of the relevant
Receivables Sale Agreement and the payment of such stamp duty is reasonably
necessary in order to do so.
(c) RECEIPTS. Within sixty (60) days after the date of any
payment of Taxes pursuant to this SECTION 3.04 by any Borrower or any of the
Borrowers' Subsidiaries, the Borrowers will furnish to the Administrative Agent
at its request, at its notice address in effect under SECTION 14.08, a copy of a
receipt, if any, or other documentation reasonably satisfactory to the
Administrative Agent, evidencing payment thereof. The Borrowers shall furnish to
the Administrative Agent, within sixty (60) days after the request of the
Administrative Agent from time to time, a certificate of a Financial Officer
stating that all Taxes of which they have Knowledge are due have been paid.
(d) NON-DOMESTIC BANK CERTIFICATIONS.
(i) Each Lender or Issuing Bank that is not created or
organized under the laws of the United States or a political
subdivision thereof shall deliver to the Borrowers and the
Administrative Agent on the date such Lender becomes a Lender or such
Issuing Bank becomes an Issuing Bank, (i) a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender or Issuing Bank to the effect that such Lender or Issuing Bank
is eligible to receive all payments hereunder and under the Notes
without deduction or withholding of United States federal income tax
and (ii) a properly completed and executed IRS Form W-8 (or any
successor forms, including IRS Form W-8 BEN, W-8IMY or W-8ECI). If a
Lender or an Issuing Bank is unable to deliver the certificate and
forms described in, and on the dates required by, the preceding
sentence, then the applicable Borrower shall withhold the applicable
tax and shall have no indemnification obligation with respect to such
withholding tax.
(ii) Each Lender and each Issuing Bank further agrees to
promptly deliver to the Borrowers and the Administrative Agent from
time to time, subsequent to delivery of the certification referred to
in SECTION 3.04(d)(i), a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender or such Issuing
Bank before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to the
Borrowers and the Administrative Agent pursuant to this SECTION 3.04(d)
(including, but not limited to, a change in such Lender's or such
Issuing Bank's Applicable Lending Office). Each certificate required to
be delivered pursuant to this SECTION 3.04(d)(ii) shall certify as to
one of the following:
(A) that such Lender or such Issuing Bank can continue to
receive payments hereunder and under the Notes without
deduction or withholding of United States federal income tax;
(B) that such Lender or such Issuing Bank cannot continue to
receive payments hereunder and under the Notes without
deduction or withholding of United States
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federal income tax as specified therein but does not require
additional payments pursuant to SECTION 3.04(a) because it is
entitled to recover the full amount of any such deduction or
withholding from a source other than the Borrowers;
(C) that such Lender or Issuing Bank is no longer capable of
receiving payments hereunder and under the Notes without
deduction or withholding of United States federal income tax
as specified therein solely by reason of a change in law
(including the Internal Revenue Code or applicable tax treaty)
after the later of the Closing Date or the date on which such
Lender became a Lender or such Issuing Bank became an Issuing
Bank and that it is not capable of recovering the full amount
of the same from a source other than the Borrowers; or
(D) that such Lender or such Issuing Bank is no longer capable
of receiving payments hereunder without deduction or
withholding of United States federal income tax as specified
therein other than by reason of a change in law (including the
Internal Revenue Code or applicable tax treaty) after the
later of the Closing Date or the date on which such Lender
became a Lender or such Issuing Bank became an Issuing Bank.
Each Lender and each Issuing Bank agrees to deliver to the Borrowers
under the applicable Credit Facility and the Administrative Agent
further duly completed copies of the above-mentioned IRS forms on or
before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding from United States
federal income tax and (y) fifteen (15) days after the occurrence of
any event requiring a change in the most recent form previously
delivered by such Lender or such Issuing Bank to the Borrowers and the
Administrative Agent, unless any change in treaty, law, regulation or
official interpretation thereof which would render such form
inapplicable or which would prevent the Lender from duly completing and
delivering such form has occurred prior to the date on which any such
delivery would otherwise be required and the Lender or the Issuing Bank
promptly advises the Borrowers that it is not capable of receiving
payments hereunder or under the Notes without any deduction or
withholding of United States federal income tax.
(e) The UK Borrower shall take all steps as may be reasonably
requested by the Administrative Agent on behalf of any Lender or Issuing Bank to
enable the relevant Lender or Issuing Bank to comply with certification or other
procedures requisite to obtaining any available benefits under the tax treaty
then in effect between the United Kingdom and the United States (or other
applicable jurisdiction) with respect to any payment hereunder or under any Note
or other document evidencing any Obligations, including (without limitation)
providing information to the UK Borrower's local tax office, and shall take such
steps as soon as reasonably possible (having regard to the consequences of any
delay).
3.05. INCREASED CAPITAL. If after the date hereof any Lender
or Issuing Bank determines that (i) the adoption or implementation of or any
change in or in the interpretation or administration of any law or regulation or
any guideline or request from any central bank or other Governmental Authority
or quasi-governmental authority exercising jurisdiction, power or
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control over any Lender, Issuing Bank or banks or financial institutions
generally (whether or not having the force of law), compliance with which
affects or would affect the amount of capital required or expected to be
maintained by such Lender or Issuing Bank or any corporation controlling such
Lender or Issuing Bank and (ii) the amount of such capital is increased by or
based upon (A) the making or maintenance by any Lender of its Loans, any
Lender's participation in or obligation to participate in the Loans, Letters of
Credit or other advances made hereunder or the existence of any Lender's
obligation to make Loans or (B) the issuance or maintenance by the Issuing Bank
of, or the existence of the Issuing Bank's obligation to Issue, Letters of
Credit, then, in any such case, upon written demand by (x) such Domestic Lender
or Issuing Bank (with a copy of such demand to the Administrative Agent), the
Domestic Borrowers, or (y) such Multicurrency Lender or Issuing Bank (with a
copy of such demand to the Administrative Agent), the Multicurrency Borrowers
jointly and severally agree immediately to pay to the Administrative Agent for
the account of such Lender or Issuing Bank, from time to time as specified by
such Lender or Issuing Bank, additional amounts sufficient to compensate such
Lender or Issuing Bank or such corporation therefor; provided that the Borrowers
shall not be required to compensate any Lender or Issuing Bank pursuant to this
SECTION 3.05 for any increased capital costs incurred more than 180 days prior
to the date such Issuing Bank or Lender notifies the applicable Borrower of the
event giving rise to such increased capital cost and of such Lender's or Issuing
Bank's intention to claim compensation therefor; provided further, however, that
such 180-day limitation shall not apply to any cost that is applicable
retroactively so long as the applicable Lender notifies the Borrowers of such
cost within 180 days of a responsible officer of such Lender receiving actual
knowledge thereof. Such demand shall be accompanied by a statement as to the
amount of such compensation and include a summary of the basis for such demand
with detailed calculations. Such statement shall be conclusive and binding for
all purposes, in the absence of manifest error.
3.06. CASH MANAGEMENT AND CONCENTRATION ACCOUNTS.
(a) ESTABLISHMENT OF ACCOUNTS. On the Closing Date, the Credit
Parties shall have established the Bank Accounts identified on SCHEDULE 6.01-Z.
After the Closing Date, the Borrowers agree to establish, and cause the Credit
Parties or such other Subsidiaries who are agreed to by the Administrative Agent
and the Borrowers, to establish, such other Bank Accounts as the Administrative
Agent may reasonably request, and SCHEDULE 6.01-Z shall be updated accordingly.
After any such Bank Account is established, the Borrowers or such Subsidiaries
may change the Bank Accounts or add to the Bank Accounts listed on SCHEDULE
6.01-Z as their needs may require and agree to notify the Administrative Agent
in writing of any such changes (such schedule being deemed to be amended by any
such notice); PROVIDED, HOWEVER, no Credit Party shall:
(i) change any Bank Account other than a Disbursement Account
(except as contemplated above) or establish any new Bank Account other
than a Disbursement Account with any bank which is not acceptable to
the Administrative Agent and which, in the case of a Collection Account
to be maintained at such bank, has not executed a Collection Account
Agreement with respect to such Collection Account, or
(ii) establish any other Bank Account other than a
Disbursement Account, or modify any arrangement with respect to any
other existing Bank Account other than a
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Disbursement Account, without the prior consent of the Administrative
Agent, which consent may be granted or withheld in the reasonable
discretion of the Administrative Agent.
(b) COLLECTIONS. Each Credit Party, (i) has directed, and in
the future will direct, all of its account debtors to remit all monies, checks,
notes, drafts or funds received by it, including, without limitation, all
payments in respect of Receivables, all other proceeds of Collateral, and all
Net Cash Proceeds (the "COLLECTIONS") directly to a Lockbox or Collection
Account (or in accordance with other arrangements approved by the Administrative
Agent), or (ii) to the extent that the account debtors of such Credit Party,
notwithstanding the instructions described in CLAUSE (I) above, remit such
Collections directly to such Credit Party, each Borrower agrees, and agrees to
cause each Credit Party to, deposit all such Collections into a Collection
Account promptly upon such Person's receipt thereof. The Borrowers agree to
cause all Collections now or hereafter received directly or indirectly by any
Borrower or any such Credit Party or any agent thereof or in the possession of
any Borrower or any Credit Party or any agent thereof to be held in trust for,
or, in the case of Collections received by any Foreign Credit Party, on trust
for (or as otherwise provided in the relevant Foreign Security Agreements
relating thereto) the Administrative Agent and, promptly upon receipt thereof,
to be deposited into a Collection Account. The contents of each Lockbox shall
automatically be deposited into a Collection Account or be emptied and deposited
into a Collection Account by a representative of the Collection Account Bank at
which the applicable Collection Account has been established. Only the
Administrative Agent and the applicable Collection Account Bank, if any, shall
have power of withdrawal from each Lockbox and the related Collection Account.
NMHG Distribution shall not remit, nor shall permit the deposit of, any
Collections to account number 757123 held at City National Bank and account
numbers ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇, and 754116069 held at National City Bank, and, to
the extent any Collections are so deposited, shall promptly wire such funds to a
Collection Account.
(c) CONCENTRATION ACCOUNTS; CASH COLLATERAL ACCOUNTS. All
immediately available funds, or as otherwise provided in any Collection Account
Agreement with respect to low volume Collection Accounts, in any Collection
Account (w) of any Domestic Borrower shall be automatically transferred (either
directly or indirectly) into the Domestic Concentration Account, (x) of the
Multicurrency Borrowers shall be transferred (either directly or indirectly)
automatically or as otherwise provided pursuant to the applicable Collection
Account Agreement and/or Multicurrency Concentration Accounts Agreements into
(A) with respect to funds denominated in Sterling, the applicable Sterling
Concentration Account, (B) with respect to funds denominated in Euros, the
applicable Euro Concentration Account, and (C) with respect to funds denominated
in Dollars, the applicable Dollars Concentration Account. Funds shall be
directed in accordance with the instructions of the Administrative Agent to the
applicable Cash Collateral Account upon a demand made pursuant to SECTION
11.02(b). The Domestic Concentration Account and each Domestic Cash Collateral
Account shall be in the name of and owned by the Administrative Agent. The
Multicurrency Concentration Account and each Multicurrency Cash Collateral
Account shall be under the sole dominion and control and subject to the first
priority security interest of the Administrative Agent. The following procedures
shall apply to the Domestic Concentration Account, the Multicurrency
Concentration Accounts and the Cash Collateral Accounts:
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(i) GENERALLY. Each Bank Account shall be denominated in a
single currency. The Administrative Agent alone shall have power of
withdrawal from the Concentration Accounts and the Cash Collateral
Accounts. Subject to SECTIONS 3.01(b)(ii), 3.01(b)(iii), 3.02(b)(ii),
3.02(b)(iii) and 11.03, (A) the Domestic Borrowers hereby authorize the
Administrative Agent to apply all immediately available funds on
deposit in the Domestic Concentration Account and, if necessary,
Domestic Cash Collateral Account to the Domestic Obligations, and (B)
the Multicurrency Borrowers hereby authorize the Administrative Agent
to apply all immediately available funds on deposit in each
Multicurrency Concentration Account and, if necessary, each
Multicurrency Cash Collateral Account, to the Multicurrency Obligations
denominated in the Specified Foreign Currency maintained in such
Multicurrency Concentration Account and Multicurrency Cash Collateral
Account. Solely with respect to the Domestic Concentration Account, to
the extent any such funds remain after such application or disbursement
to a Domestic Borrower pursuant to SECTION 3.02(b) and no Default or
Event of Default has occurred and is continuing, each Domestic Borrower
hereby authorizes the Administrative Agent to invest such funds in
accordance with SECTION 3.06(c)(ii). Solely with respect to the
Multicurrency Concentration Accounts, to the extent any such funds
remain after such application or disbursement to a Multicurrency
Borrower pursuant to SECTION 3.02(b) and no Default or Event of Default
has occurred and is continuing, any Multicurrency Borrower may, upon
notice to the Administrative Agent not later than 10:30 a.m. (London
time), convert any funds on deposit in a Multicurrency Concentration
Account into another Optional Currency and transfer such funds (less
any reasonable foreign exchange costs) to another Multicurrency
Concentration Account in which such other Optional Currency is
maintained.
(ii) INVESTMENTS. Subject to the right of the Administrative
Agent to apply and/or withdraw funds from the Domestic Concentration
Account and the Domestic Cash Collateral Account as provided in this
Agreement, the Administrative Agent shall, so long as no Default or
Event of Default shall have occurred and be continuing, from time to
time invest funds (or procure the investment of such funds) on deposit
in such accounts and accrued interest thereon, procure the reinvestment
of proceeds of any such investments which may mature or be sold, and
invest interest or other income received from any such investments, in
each case in an overnight investment selected by the Administrative
Agent. None of the Administrative Agent, any Lender or the Issuing Bank
shall be liable to any Borrower for, or with respect to, any decline in
value of amounts on deposit in the Domestic Concentration Account or
Domestic Cash Collateral Account which shall have been invested
pursuant to this SECTION 3.06(c)(ii) pursuant to such overnight
investments selected by the Administrative Agent. All funds on deposit
in the Multicurrency Concentration Accounts and Multicurrency Cash
Collateral Accounts shall bear interest in accordance with the
applicable account agreement.
(iii) ADDITIONAL PAYMENTS. If at any time the Administrative
Agent determines that any funds held in any Concentration Account or
Cash Collateral Account are subject to any interest, right, claim or
Lien (other than Liens arising in the ordinary course of business for
amounts which are not yet due and payable) of any Person other than the
Administrative Agent or the applicable Borrower, the Domestic Borrowers
jointly and
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severally (with respect to funds deposited by the Domestic Borrowers)
and the Multicurrency Borrowers jointly and severally (with respect to
funds deposited by the Multicurrency Borrowers) agree that (i)
forthwith upon demand by the Administrative Agent, to pay to the
Administrative Agent, as additional funds to be deposited and held in
the applicable Concentration Account or Cash Collateral Account, as the
case may be, an amount equal to the amount of funds subject to such
interest, right, claim or Lien or (ii) if no such payment is made, the
Administrative Agent shall immediately and without requirement of
notice as set forth in the definitions of Multicurrency Borrowing Base
and Domestic Borrowing Base, as applicable, impose an Eligibility
Reserve in the amount of such funds (unless such interest, right, claim
or Lien has then been included in any Eligibility Reserve with respect
to such funds or has been factored into a decreased advance rate with
respect to Cash Collateral).
(iv) CUSTODY OF CASH COLLATERAL. The Administrative Agent
shall exercise reasonable care in the custody and preservation of any
funds held in the Concentration Accounts and the Cash Collateral
Accounts and shall be deemed to have exercised such care if such funds
are accorded treatment substantially equivalent to that which the
Administrative Agent accords its own like property, it being understood
that the Administrative Agent shall not be required to preserve rights
of the Borrowers in such accounts or any amounts on deposit therein or
any Investments subject thereto against third parties but may do so at
its option. All expenses incurred in connection therewith shall be for
the joint and several account of the Multicurrency Borrowers with
respect to any funds deposited by the Multicurrency Borrowers or the
joint and several account of the Domestic Borrowers with respect to any
funds deposited by the Domestic Borrowers, and, in each case, shall
constitute Obligations hereunder.
Notwithstanding anything to the contrary contained in this Agreement, except as
set forth in this CLAUSE (c), none of the Borrowers or any Person or entity
claiming on behalf of or through a Borrower shall have any right to withdraw any
of the funds held in the Domestic Concentration Account or any Cash Collateral
Account. Upon the Payment In Full of the Obligations and termination of the
Commitments, any funds remaining in the Domestic Concentration Account or the
Domestic Cash Collateral Account shall be returned by the Administrative Agent
to the relevant Borrower or paid by the Administrative Agent to whomever may be
legally entitled thereto, and in relation to funds in the Multicurrency
Concentration Accounts and the Multicurrency Cash Collateral Accounts, the
Administrative Agent shall release the security over such accounts and terminate
any associated control rights it may have.
(d) FEES AND EXPENSES. With respect to fees, costs and
expenses incurred (i) in respect of the Domestic Facility, the Domestic
Borrowers jointly and severally agree, and (ii) in respect of the Multicurrency
Facility, the Multicurrency Borrowers jointly and severally agree, in each case,
to pay to the Administrative Agent any and all reasonable fees, costs and
expenses which the Administrative Agent incurs in connection with opening and
maintaining the Collection Accounts, Concentration Accounts and Cash Collateral
Accounts, lockbox or other similar payment collection mechanisms for such
Borrowers and depositing for collection any check or item of payment received by
and/or delivered to the Collection Account Banks or the Administrative Agent on
account of the Obligations. With respect to the Collection Account Banks (x) for
the Domestic Borrowers, the Domestic Borrowers jointly and severally agree, (y)
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for the Multicurrency Borrowers, the Multicurrency Borrowers jointly and
severally agree, in each case, to reimburse the Administrative Agent for any
amounts paid to any Collection Account Bank arising out of any required
indemnification by the Administrative Agent of such Collection Account Bank
against damages incurred by the Collection Account Bank in the operation of a
Collection Account.
ARTICLE IV
INTEREST AND FEES
4.01. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) RATE OF INTEREST. All Loans and the outstanding principal
balance of all other Obligations shall bear interest on the unpaid principal
amount thereof from the date such Loans are made and such other Obligations are
due and payable until paid in full, except as otherwise provided in SECTION
4.01(d), as follows:
(i) If a Floating Rate Loan or such other Obligation, at a
rate per annum equal to the sum of the Floating Rate in effect from
time to time as interest accrues, PLUS the Applicable Floating Rate
Margin in effect from time to time;
(ii) If an Overdraft Loan, at a rate per annum equal to the
sum of the Overdraft Rate in effect from time to time as interest
accrues, PLUS the Applicable Overdraft Rate Margin in effect from time
to time; and
(iii) If a Fixed Rate Loan, at a rate per annum equal to the
sum of the Fixed Rate determined for the applicable Interest Period and
the applicable currency, PLUS the Applicable Fixed Rate Margin in
effect from time to time during such Interest Period.
The applicable basis for determining the rate of interest on any Loan shall be
initially determined in accordance with SECTION 2.01(d). The applicable basis
for determining the rate of interest on such Loan shall be selected thereafter
by the relevant Borrower at the time a Notice of Conversion/Continuation is
delivered by such Borrower to the Administrative Agent. Notwithstanding the
foregoing, such Borrower may not select the Fixed Rate as the applicable basis
for determining the rate of interest on such a Loan if (x) such Loan is to be
made on the Closing Date or (y) at the time of such selection an Event of
Default or Default would occur or has occurred and is continuing. If on any day
any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms hereof
specifying the basis for determining the rate of interest on that day, then for
that day interest on that Loan shall be determined by reference to the
applicable Floating Rate.
(b) INTEREST PAYMENTS.
(i) Interest accrued on each Floating Rate Loan shall be
payable in arrears in the currency in which such Loan is denominated
(A) on the first Business Day of each calendar month for the preceding
calendar month, commencing on the first such day following the making
of such Floating Rate Loan and (B) if not theretofore paid in full, at
maturity (whether by acceleration or otherwise) of such Floating Rate
Loan.
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(ii) Interest accrued on each Fixed Rate Loan shall be payable
in arrears in the currency in which such Loan is denominated on the
last day of each Fixed Rate Interest Payment Date with respect to such
Loan and (B) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Fixed Rate Loan.
(iii) Interest accrued on the principal balance of all other
Obligations shall be payable in arrears in the currency in which such
Obligation is denominated (A) on the first Business Day of each month,
commencing on the first such day following the incurrence of such
Obligation and (B) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) CONVERSION OR CONTINUATION.
(i) Each Domestic Borrower shall have the option (A) to
convert at any time all or any part of its outstanding Floating Rate
Loans (other than Swing Loans) to Fixed Rate Loans or (B) to convert
all or any part of its outstanding Fixed Rate Loans having Interest
Periods which expire on the same date to Floating Rate Loans on such
expiration date; and each Borrower shall have the option to continue
all or any part of its outstanding Fixed Rate Loans having Interest
Periods which expire on the same date as Fixed Rate Loans denominated
in the same currency, and the succeeding Interest Period of such
continued Loans shall commence on such expiration date; provided,
however, in each case, no such outstanding Loan may be continued as, or
be converted into, a Fixed Rate Loan (i) if the continuation of, or the
conversion into, such Fixed Rate Loan would violate any of the
provisions of SECTION 4.02 or (ii) if an Event of Default or Default
would occur or has occurred and is continuing. Any conversion into or
continuation of Fixed Rate Loans under this SECTION 4.01(c) shall be in
a minimum amount of the Dollar Equivalent of $7,500,000 for Domestic
Loans and $5,000,000 for Multicurrency Loans and in integral Dollar
Equivalent multiples of $1,000,000 in excess of that amount. Such
minimum levels may be achieved under the Domestic Facility by combining
the Loans of more than one Borrower being continued as or converted
into Fixed Rate Loans with the same Interest Period so long as the
minimum amount of any single Borrowing is the Dollar Equivalent of
$1,000,000; and such minimum levels may be achieved under the
Multicurrency Facility by combining the Loans of the same currency of
more than one Borrower being continued as or converted into Fixed Rate
Loans with the same Interest Period so long as the minimum amount of
any single Borrowing is the Dollar Equivalent of $1,000,000.
(ii) To convert or continue a Loan under SECTION 4.01(c)(i),
the applicable Borrower shall deliver a Notice of
Conversion/Continuation to the Administrative Agent no later than 12:00
p.m. (New York time) at least three Business Days in advance of the
proposed conversion/continuation date with respect to Domestic Loans
and 3:00 p.m. (London time) at least four Business Days in advance of
the proposed conversion/continuation date with respect to Multicurrency
Loans. Promptly after receipt of a Notice of Conversion/Continuation
under this SECTION 4.01(c)(ii), the Administrative Agent shall notify
each Lender under the applicable Credit Facility by telex or telecopy,
or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for
conversion to, or continuation of, a Loan shall be
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irrevocable, and the applicable Borrower shall be bound to convert or
continue in accordance therewith.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTION 4.01(a) or elsewhere herein, and to the extent permitted by
applicable law, effective immediately upon the occurrence of any Event of
Default and for as long thereafter as such Event of Default shall be continuing,
the principal balance of all Loans and of all other Obligations shall bear
interest at a rate which is two percent (2.0%) per annum in excess of the rate
of interest applicable to such Loans and Obligations from time to time.
(e) COMPUTATION OF INTEREST. Interest on all Obligations shall
be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and (i) with respect to Obligations for Sterling
Loans and Overdraft Loans denominated in Sterling, a year of 365 days, and (ii)
with respect to all other Obligations, a year of 360 days. In computing interest
on any Loan, the date of the making of the Loan shall be included and the date
of payment shall be excluded.
(f) CHANGES; LEGAL RESTRICTIONS. If after the date hereof any
Lender or the Issuing Bank determines that the adoption or implementation of or
any change in or in the interpretation or administration of any law or
regulation or any guideline or request from any central bank or other
Governmental Authority or quasi-governmental authority exercising jurisdiction,
power or control over any Lender, the Issuing Bank or over banks or financial
institutions generally (whether or not having the force of law), compliance with
which, in each case after the date hereof:
(i) subject to the provisions of SECTION 3.04 (which will be
conclusive as to matters covered thereby), does or will subject a
Lender or an Issuing Bank (or its Applicable Lending Office or Fixed
Rate Affiliate) to charges (other than Taxes) of any kind which such
Lender or Issuing Bank reasonably determines to be applicable to the
Commitments of the Lenders and/or the Issuing Bank to make Fixed Rate
Loans or Issue and/or participate in Letters of Credit or change the
basis of taxation of payments to that Lender or Issuing Bank of
principal, fees, interest, or any other amount payable hereunder with
respect to Fixed Rate Loans or Letters of Credit; or
(ii) does or will impose, modify, or hold applicable, in the
determination of a Lender or an Issuing Bank, any reserve (other than
reserves taken into account in calculating the Fixed Rate), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities (including those
pertaining to Letters of Credit) in or for the account of, advances or
loans by, commitments made, or other credit extended by, or any other
acquisition of funds by, a Lender or an Issuing Bank or any Applicable
Lending Office or Fixed Rate Affiliate of that Lender or Issuing Bank;
and the result of any of the foregoing is to increase the cost to that Lender or
Issuing Bank of making, renewing or maintaining any Loans or its Commitments or
issuing or participating in the Letters of Credit or to reduce any amount
receivable thereunder; then, in any such case, upon written demand by such
Lender or Issuing Bank (with a copy of such demand to the
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Administrative Agent), (x) the Domestic Borrowers jointly and severally agree
promptly to pay to the Administrative Agent for the account of such Domestic
Lender or Issuing Bank, from time to time as specified by such Domestic Lender
or Issuing Bank, such amount or amounts as may be necessary to compensate such
Domestic Lender or Issuing Bank or its Fixed Rate Affiliate for any such
additional cost incurred or reduced amount received in connection with the
Domestic Facility and (y) the Multicurrency Borrowers jointly and severally
agree promptly to pay to the Administrative Agent for the account of such
Multicurrency Lender or Issuing Bank, from time to time as specified by such
Multicurrency Lender or Issuing Bank, such amount or amounts as may be necessary
to compensate such Multicurrency Lender or Issuing Bank or its Fixed Rate
Affiliate for any such additional cost incurred or reduced amount received in
connection with the Multicurrency Facility; provided that the Borrowers shall
not be required to compensate any Lender or Issuing Bank pursuant to this
SECTION 4.01(f) for any increased costs or reductions incurred more than 180
days prior to the date such Issuing Bank or Lender notifies the applicable
Borrower of the event giving rise to such increased cost or reduction and of
such Lender's or Issuing Bank's intention to claim compensation therefor;
provided further, however, that such 180-day limitation shall not apply to any
cost or reduction that is applicable retroactively to periods prior to the
effective date of the applicable event so long as the applicable Lender notifies
the Borrowers of such event within 180 days of a responsible officer of the
Administrative Agent receiving actual knowledge thereof. Such demand shall be
accompanied by a statement as to the amount of such compensation. Such statement
shall be conclusive and binding for all purposes, absent manifest error.
(g) CONFIRMATION OF FIXED RATE. Upon the reasonable request of
any Borrower from time to time, the Administrative Agent shall promptly provide
to such Borrower such information with respect to the applicable Fixed Rate as
may be so requested.
4.02. SPECIAL PROVISIONS GOVERNING FIXED RATE LOANS. With
respect to Fixed Rate Loans:
(a) DETERMINATION OF INTEREST PERIOD. By giving notice as set
forth in SECTION 2.01(d) (with respect to a new Borrowing of Domestic Loans or
Multicurrency Loans) or SECTION 4.01(c) (with respect to a conversion into or
continuation of a Fixed Rate Loan), the applicable Borrower shall have the
option, subject to the other provisions of this SECTION 4.02, to select an
interest period (each, an "INTEREST PERIOD") to apply to the Loans described in
such notice, subject to the following provisions:
(i) (A) Such Domestic Borrower may only select, as to a
particular Borrowing of Fixed Rate Loans, an Interest Period of either
one (1), two (2), three (3) or six (6) months in duration and (B) such
Multicurrency Borrower may only select, as to a particular Borrowing of
Fixed Rate Loans, an Interest Period of either seven (7) days, fourteen
(14) days, one (1) month, two (2) months, three (3) months or six (6)
months in duration;
(ii) In the case of immediately successive Interest Periods
applicable to a Borrowing of Fixed Rate Loans, each successive Interest
Period shall commence on the day on which the next preceding Interest
Period expires;
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(iii) If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall be extended to
expire on the next succeeding Business Day if the next succeeding
Business Day occurs in the same calendar month, and if there shall be
no succeeding Business Day in such calendar month, such Interest Period
shall expire on the immediately preceding Business Day;
(iv) Such Borrower may not select an Interest Period as to any
Loan if such Interest Period terminates later than the Termination
Date;
(v) There shall be no more than ten (10) Interest Periods in
effect at any one time; and
(vi) No Fixed Rate Loan may be borrowed on the Closing Date,
and no Notice of Conversion/Continuation may be delivered prior to the
Closing Date.
(b) DETERMINATION OF INTEREST RATE. As soon as practicable on
the applicable Fixed Rate Determination Date, the Administrative Agent shall
determine (pursuant to the procedures set forth in the definition of "FIXED
RATE") the interest rate which shall apply to Fixed Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
currency and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to the applicable Borrowers and to each Lender. The
Administrative Agent's determination shall be presumed to be correct, absent
manifest error, and shall be binding upon such Borrowers.
(c) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In
the event that (x) in the case of Domestic Loans, at least one (1) Business Day
before and (y) in the case of Multicurrency Loans, on the Fixed Rate
Determination Date with respect to any Fixed Rate Loan in the relevant currency:
(i) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by
reference to which the applicable Fixed Rate for the applicable
Optional Currency then being determined is to be fixed;
(ii) the Administrative Agent determines that deposits in such
currency and in the principal amounts of the Fixed Rate Loans
comprising such Borrowing are not generally available in the London
interbank market for a period equal to such Interest Period; or
(iii) the Requisite Lenders in the applicable Credit Facility
advise the Administrative Agent that the applicable Fixed Rate for the
applicable Optional Currency, as determined by the Administrative
Agent, after taking into account the adjustments for reserves and
increased costs provided for in SECTION 4.01(f), will not adequately
and fairly reflect the cost to such Lenders of funding the relevant
Fixed Rate Loans in the currency in which such Loans are denominated;
then the Administrative Agent shall forthwith give notice thereof to the
Borrowers under the applicable Credit Facility, whereupon (until the
Administrative Agent notifies such Borrowers that the circumstances giving rise
to such suspension no longer exist) the right of such Borrowers
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to elect to have Loans bear interest based upon the Fixed Rate in such currency
shall be suspended and each outstanding Fixed Rate Loan which is denominated in
the affected currency shall be converted into a Floating Rate Loan denominated
in such currency on the last day of the then current Interest Period therefor,
and any Notice of Borrowing with respect to Loans denominated in such currency
for which Revolving Loans have not then been made shall be deemed to be a
request for Floating Rate Loans in such currency, notwithstanding any prior
election by any such Borrower to the contrary.
(d) ILLEGALITY.
(i) If at any time any Lender determines (which determination
shall, absent manifest error, be final and conclusive and binding upon
all parties) that the making or continuation of any Fixed Rate Loan in
any currency has become unlawful or impermissible by compliance by that
Lender with any law, governmental rule, regulation or order of any
Governmental Authority (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful or would
result in costs or penalties), then, and in any such event, such Lender
may give notice of that determination, in writing, to the Borrowers
under the applicable Credit Facility and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each
other Lender.
(ii) When notice is given by a Lender under SECTION
4.02(d)(i), (a) such Borrowers' right to request from such Lender and
such Lender's obligation, if any, to make Fixed Rate Loans in such
currency shall be immediately suspended, and such Lender shall make a
Floating Rate Loan as part of any requested Borrowing of Fixed Rate
Loans in such currency and (B) if the affected Fixed Rate Loan or Loans
are then outstanding, the applicable Borrower shall, on the last day of
the applicable Interests Period(s), or if such postponement is not
permitted by applicable law, then by no later than the date it is
required to do so in accordance with applicable law, upon at least one
(1) Business Day's prior written notice to the Administrative Agent and
the affected Lender, convert each such Loan into a Floating Rate Loan.
(iii) If at any time after a Lender gives notice under SECTION
4.02(d)(i) in respect of a Fixed Rate Loan in any currency such Lender
determines that it may lawfully make Fixed Rate Loans in such currency,
such Lender shall promptly give notice of that determination, in
writing, to the Borrowers under the applicable Credit Facility and the
Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender. Such Borrowers' right to
request, and such Lender's obligation, if any, to make Fixed Rate Loans
shall thereupon be restored.
(e) COMPENSATION. In addition to all amounts required to be
paid by the Borrower pursuant to SECTION 4.01, each Domestic Borrower agrees to
compensate each Domestic Lender and each Multicurrency Borrower agrees to
compensate each Multicurrency Lender, upon demand, for all losses, expenses and
similar liabilities (including, without limitation, any loss or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund or maintain such Lender's Fixed Rate Loans made to such
Borrower but excluding any loss of the Applicable Fixed Rate Margin on the
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relevant Loans) which that Lender may sustain (i) if for any reason a Borrowing
of, conversion into or continuation of such Fixed Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by such Borrower or a successive Interest Period
does not commence after notice therefor is given pursuant to SECTION 4.01(c),
including, without limitation, pursuant to SECTION 4.02(c), (ii) if for any
reason any Fixed Rate Loan made to such Borrower is prepaid (including, without
limitation, mandatorily pursuant to SECTION 3.01) on a date which is not the
last day of the applicable Interest Period (it being understood and agreed that,
notwithstanding anything contained in this Agreement to the contrary, so long as
no Default or Event of Default shall have occurred and be continuing, such
Borrower may, in lieu of making a mandatory prepayment of a Fixed Rate Loan
which would otherwise be required to be made under this Agreement on a date
which is not the last day of the applicable Interest Period, deposit an amount
equal to the amount which would otherwise be required to be so prepaid (plus
interest accrued thereon for the appropriate number of days at the rate
applicable to such Loan) into the Domestic Cash Collateral Account (or, in the
case of Fixed Rate Loans denominated in an Optional Currency, an appropriate
Cash Collateral Account) as Cash Collateral for application by the
Administrative Agent to such Loan on the last day of such Interest Period),
(iii) as a consequence of a required conversion of such Fixed Rate Loan to a
Floating Rate Loan as a result of any of the events indicated in SECTION 4.02(c)
or (d) or (iv) as a consequence of any failure by such Borrower to repay Fixed
Rate Loans when required by the terms hereof. The Lender making demand for such
compensation shall deliver to the applicable Borrower concurrently with such
demand a written statement as to such losses, expenses and similar liabilities,
and such statement shall be conclusive as to the amount of compensation due to
that Lender, absent manifest error.
4.03. FEES.
(a) LETTER OF CREDIT FEE. In addition to any charges paid
pursuant to SECTION 2.02(g), each Borrower agrees to pay to the Administrative
Agent for the account of the Lenders under the applicable Credit Facility as
provided in the following sentence with respect to any Letter of Credit Issued
by the Issuing Bank for the account of such Borrower, a fee per annum (the
"LETTER OF CREDIT FEE") equal to the Applicable Letter of Credit Fee Rate in
effect as of the date of each such payment on the undrawn face amount of such
Letter of Credit, payable in arrears on the first Business Day of each calendar
month for the preceding calendar month and on the date on which such Letter of
Credit expires in accordance with its terms; provided, however, effective
immediately upon the occurrence of any Event of Default and for so long
thereafter as such Event of Default shall be continuing, the rate at which the
Letter of Credit Fees shall accrue and be payable shall be equal to two percent
(2.0%) per annum in excess of the Applicable Letter of Credit Fee Rate in effect
from time to time. The Administrative Agent shall pay each Letter of Credit Fee
to the Lenders in accordance with their respective Pro Rata Shares of the Credit
Facility under which such Letter of Credit has been issued.
(b) UNUSED COMMITMENT FEE. The Domestic Borrowers jointly and
severally agree to pay to the Administrative Agent, for the account of the
Domestic Lenders, and the Multicurrency Borrowers jointly and severally agree to
pay to the Administrative Agent, for the account of the Multicurrency Lenders,
in accordance with each Lender's respective Pro Rata Shares of the applicable
Credit Facility, a fee (the "UNUSED COMMITMENT FEE"), in each case accruing from
the Closing Date at a per annum rate equal to the Applicable Unused Commitment
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Fee Rate in effect as of the payment date set forth below, on the average amount
by which (i) the Commitment under the applicable Credit Facility exceeds (ii) an
amount equal to the Credit Facility Outstandings under such Credit Facility less
the Letter of Credit Obligations set forth in CLAUSE (c) of the definition
thereof to the extent included in the determination of Credit Facility
Outstandings, for the period commencing on the Closing Date and ending on the
Termination Date, the accrued portion of such fee being payable (A) monthly, in
arrears, on the first Business Day of the immediately succeeding calendar month,
commencing on the first such day after the Closing Date and (B) on the
Termination Date. Notwithstanding the foregoing, no Defaulting Lender shall be
entitled to any Unused Commitment Fees with respect to its Commitment under the
applicable Credit Facility until such Lender ceases to be a Defaulting Lender in
accordance with SECTION 3.02(b)(iv)(B), and no Borrower shall be required to pay
any Unused Commitment Fees with respect to such Credit Facility to such Lender
for such period.
(c) OTHER FEES. The Borrowers agree to pay to the
Administrative Agent solely for its own account such other fees as are set forth
in the Letter Agreement.
(d) CALCULATION AND PAYMENT OF FEES. All of the above fees
that are based on a per annum rate shall be calculated on the basis of the
actual number of days elapsed in a 360-day year. All such fees shall be payable
in addition to, and not in lieu of, interest, expense reimbursements,
indemnification and other Obligations. Fees shall be payable by the Domestic
Borrowers to the Domestic Concentration Account and by the Multicurrency
Borrowers to the Multicurrency Payment Account in accordance with SECTION 3.02.
All fees payable hereunder shall be fully earned and, subject only to SECTION
14.01(c), nonrefundable when paid. All fees specified or referred to herein due
to the Administrative Agent, the Issuing Bank or any Lender, including, without
limitation, those referred to in this SECTION 4.03, shall bear interest, if not
paid when due, at the interest rate for Loans in accordance with SECTION
4.01(d), shall constitute Obligations and shall be secured by the Collateral.
ARTICLE V
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement
shall become effective on the date (the "CLOSING DATE") when all of the
following conditions precedent shall have been satisfied or waived in writing by
the Administrative Agent:
(a) DOCUMENTS. The Administrative Agent (on behalf of itself
and the Lenders) shall have received on or before the Closing Date all of the
following:
(i) this Agreement, the Notes and all other agreements,
documents and instruments (other than items designated as
"post-closing" items) relating to the loan and other credit
transactions contemplated by this Agreement and described in the List
of Closing Documents attached hereto and made a part hereof as EXHIBIT
S (the "CLOSING LIST"), each duly executed where appropriate and in
form and substance satisfactory to the Administrative Agent and in
sufficient copies for each of the Lenders; without limiting the
foregoing, the Borrowers hereby direct their counsel, (A) ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇ and (B) each of its other counsel listed in the Closing
List to prepare and deliver
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to the Administrative Agent, the Lenders, the Issuing Bank and Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, the opinions referred to in the Closing List
with respect to such counsel;
(ii) the Pro Forma accompanied by the Initial Projections;
(iii) a solvency certificate for each Borrower, Foreign Credit
Party and for the Borrowers and their Subsidiaries on a combined basis,
duly executed by a Financial Officer of each Borrower, dated the
Closing Date and giving effect to the financing transactions
contemplated under this Agreement and the Senior Notes;
(iv) a Notice of Borrowing executed by each Borrower which
desires to borrow Loans on the Closing Date, dated the Closing Date,
with respect to such Loans;
(v) a certificate of a Financial Officer of each Borrower
executed and delivered on behalf of such Borrower certifying that (A)
no Material Adverse Effect has occurred since December 31, 2001, (B)
all conditions precedent set forth in this SECTION 5.01 and SECTION
5.02 have been satisfied and (C) after giving effect to the financing
transactions contemplated under this Agreement and the Senior Notes,
all representations and warranties in this Agreement and the other Loan
Documents are true and correct in all respects, no Default or Event of
Default has occurred and is continuing and no event that is reasonably
likely to have a Material Adverse Effect has occurred and is
continuing;
(vi) a Borrowing Base Certificate for the Domestic Borrowers
and a Borrowing Base Certificate for the Multicurrency Borrowers, dated
as of the Closing Date and giving effect to the financing transactions
contemplated under this Agreement and the Senior Notes, adequately
supporting the Loans requested to be made and the Letters of Credit
requested to be Issued and showing aggregate Availability under the
Credit Facilities in excess of $50,000,000 after giving effect to such
Loans or Letters of Credit;
(vii) a fully executed copy of the most recent management
letter, if any, issued by the Auditor; and
(viii) such additional documentation as the Administrative
Agent and the Lenders may reasonably request.
(b) COLLATERAL INFORMATION; PERFECTION OF LIENS. The
Administrative Agent shall have received complete and accurate information from
each Borrower with respect to the name and the location of the principal place
of business and chief executive office for each Borrower and each Borrower
Subsidiary; all Uniform Commercial Code and other filing and recording fees and
taxes shall have been paid or duly provided for; and the Administrative Agent
shall have received evidence to its satisfaction that all Liens granted to the
Administrative Agent with respect to all Collateral are valid, effective,
perfected and of first priority, except as otherwise permitted under this
Agreement. All certificates representing Capital Stock included in the
Collateral shall have been delivered to the Administrative Agent (with duly
executed stock powers, as appropriate) and all instruments included in the
Collateral shall have been delivered to the Administrative Agent (duly endorsed
to the Administrative Agent).
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(c) ISSUANCE OF SENIOR NOTES. The Lenders shall be satisfied
in all material respects (i) with terms of, and underlying documentation
relating to, the Senior Notes, (ii) that all conditions precedent to the
issuance and effectiveness of the Senior Notes have been satisfied (or waived
with the prior written consent of the Administrative Agent), and (iii) that net
cash proceeds from the issuance of Senior Notes in excess of $225,000,000 shall
have been received by NMHG Holding.
(d) CORPORATE AND CAPITAL STRUCTURE: DUE DILIGENCE; AMOUNT OF
INDEBTEDNESS. The corporate, capital and legal structure of NMHG Holding and its
Subsidiaries and all legal due diligence with respect thereto, shall be
acceptable to the Administrative Agent. The Indebtedness of the Borrowers and
their Subsidiaries shall be in form and substance satisfactory to the
Administrative Agent. The Administrative Agent shall have determined, in it sole
discretion, (a) that aggregate Availability under the Credit Facilities will be
greater than $50,000,000 after giving effect to the initial Loans and Letters of
Credit hereunder, and (b) that the Financial Covenant Debt of NMHG Holding and
its Subsidiaries as of the Closing Date does not exceed $380,000,000.
(e) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment
or decree of any Governmental Authority shall exist, which, in the sole
discretion of the Administrative Agent, imposes adverse conditions on the
Borrowers, the Borrower Subsidiaries or the consummation of the transactions
contemplated hereunder; and the Administrative Agent shall not have received any
notice that any action, suit, investigation, litigation or proceeding is pending
or threatened in any court or before any arbitrator or Governmental Authority
which is likely to (i) enjoin, prohibit or restrain the making of Loans and/or
the Issuance of Letters of Credit on the Closing Date, or (ii) have a Material
Adverse Effect.
(f) NO CHANGE IN CONDITION. Nothing contained in any
disclosure made by NMHG Holding or any of its Subsidiaries after the date of the
Commitment Letter or in any information disclosed to any Lender by NMHG Holding
or any of its Subsidiaries after such date shall constitute, and the
Administrative Agent shall not become aware of any fact or condition not
disclosed to it prior to the date of the Commitment Letter which constitutes, in
each case in the Administrative Agent's reasonable opinion, a material adverse
change in the condition (financial or otherwise), business, performance,
operations, prospects or properties of any Borrower or the Borrowers and the
Borrower Subsidiaries taken as a whole from that disclosed in the information
provided to the Administrative Agent on or before the date of the Commitment
Letter.
(g) NO DEFAULT. No Event of Default or Default shall have
occurred and be continuing or would result from the making of the Loans
requested to be made or the Issuance of the Letters of Credit requested to be
Issued on the Closing Date.
(h) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties contained in this Agreement and in any of the other Loan
Documents shall be true and correct on and as of the Closing Date, both before
and immediately after giving effect to the making of the Loans and the Issuance
of any Letters of Credit, if any, on such date.
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(i) FEES AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the account of the Lenders and the Administrative
Agent or other Persons entitled thereto, for their respective individual
accounts, all fees (including, without limitation, the reasonable legal fees of
counsel to the Administrative Agent and local counsel to the Administrative
Agent) due and payable on or before the Closing Date (including, without
limitation, all such fees described in the Letter Agreement), and all expenses
(including, without limitation, legal expenses) due and payable on or before the
Closing Date.
(j) CONSENTS, ETC. Each Borrower and each Borrower Subsidiary
shall have received all consents and authorizations required pursuant to any
Contractual Obligation with any other Person and shall have obtained all Permits
of, and effected all notices to and filings with, any Governmental Authority as
may be necessary to allow each Borrower and each Borrower Subsidiary lawfully
(A) to execute, deliver and perform, in all respects, their respective
obligations hereunder, under the other Loan Documents to which each of them is,
or shall be, a party and each other agreement or instrument to be executed and
delivered by each of them pursuant thereto or in connection therewith and (B) to
create and perfect the Liens on the Collateral to be owned by each of them in
the manner and for the purpose contemplated by the Loan Documents. No such
consent or authorization shall impose any conditions upon any Borrower or any
Borrower Subsidiary that are not acceptable to the Administrative Agent.
(k) CASH MANAGEMENT SYSTEMS. The Administrative Agent shall
have received satisfactory evidence that on and after the Closing Date it will
have control of the Bank Accounts and deposit accounts (other than any
Disbursement Accounts), and securities accounts of the Credit Parties.
(l) DISSOLUTION OF CERTAIN SUBSIDIARIES. The Administrative
Agent shall have received satisfactory evidence that on or prior to the Closing
Date Hyster International Sales Corporation, a Delaware corporation, and Lift
Truck Funding Company, LLC, an Oregon limited liability company, have been
dissolved. The Administrative Agent shall have received satisfactory evidence
that on or prior to the Closing Date the documents required to dissolve Hyster
Canada Limited, a Canadian entity, have been sent by Federal Express for
delivery to the appropriate Governmental Authorities.
(m) RECEIVABLES SALES. The Administrative Agent shall have
received satisfactory documentation:
(i) demonstrating to its satisfaction that the Netherlands
Borrower has transferred (by way of sale and assignment) all of its
rights, title and interest in, under and to each Receivable originated
by it (and which is still outstanding at the Closing Date) to the UK
Borrower and that, subject to SECTION 8.10(b), all steps required to be
taken (in any jurisdiction) to ensure that the UK Borrower can exercise
all of its rights under the Receivables (including the right to require
payment) directly against the relevant account debtors have been taken;
(ii) pursuant to which all of the rights, title and interest
of the Netherlands Borrower to each Receivable originated by it after
the Closing Date will be transferred, by way of sale, to the UK
Borrower on a daily basis and which require the parties thereto
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to take all steps necessary to ensure that the UK Borrower can exercise
all of its rights under the Receivables so transferred directly against
the relevant account debtors;
(iii) to the extent required, enabling the UK Borrower and the
Administrative Agent to effect transfers of the bare legal title of any
Receivables to the UK Borrower at agreed times in the future; and
(iv) demonstrating to its satisfaction that all rights, title
and interest of Bank of Scotland in any Receivable originated by the UK
Borrower, the Netherlands Borrower or NACCO Materials Handling S.R.L.
(and, in the case of those originated other than by the UK Borrower,
subsequently sold to the UK Borrower and then by the UK Borrower to
Bank of Scotland) shall have been transferred to the UK Borrower by
Bank of Scotland, free and clear of all security interests created by
it, that Bank of Scotland shall have released any Liens which it holds
with respect to the UK Borrower, other than any Liens it has over
accounts of the UK Borrower maintained with it, and any other Foreign
Subsidiary, that all relevant notices of such re-transfers and releases
shall have been given to all relevant persons including account debtors
and that all arrangements giving Bank of Scotland any trust over or
interest in or control over any Collection Accounts and other bank
accounts (other than Disbursement Accounts) of the UK Borrower or any
Foreign Subsidiary shall have been unconditionally and absolutely
terminated.
(n) HITFL CONTRACT. One of the following shall have occurred:
(i) the Administrative Agent shall have received a fully executed and effective
amendment or waiver to the HITFL Contract in form and substance satisfactory to
the Administrative Agent; (ii) a Notice of Letter of Credit Issuance shall have
been delivered to the Administrative Agent, the beneficiary of the Letter of
Credit to be issued thereunder shall be HSBC International Trade Finance Limited
("HITFL"), the terms of the Letter of Credit to be Issued thereunder shall be in
form and substance satisfactory to the Administrative Agent, and the
Administrative Agent shall have received a fully executed amendment or waiver to
the HITFL Contract in form and substance satisfactory to the Administrative
Agent which shall become effective upon the Issuance of such Letter of Credit;
or (iii) a Notice of Borrowing has been delivered with wire transfer
instructions to HITFL in an amount sufficient to pay in full all obligations
under the HITFL Contract.
5.02. CONDITIONS PRECEDENT TO REVOLVING LOANS, SWING LOANS,
OVERDRAFT LOANS AND LETTERS OF CREDIT. The obligation of each Lender to make any
Revolving Loan, of the Overdraft Line Bank to make any Overdraft Loan and of the
Swing Loan Bank to make any Swing Loan, requested to be made by it on any date,
and the agreement of each Issuing Bank to Issue any Letter of Credit on any date
is subject to the following conditions precedent as of each such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such date, both
before and after giving effect to the Loans to be made or the Letter of Credit
to be Issued on such date, all of the representations and warranties of the
Borrowers and the Borrower Subsidiaries in this Agreement and in any other Loan
Document (other than representations and warranties which expressly speak as of
a different date, which representations shall be only made on such date) shall
be true and correct in all material respects.
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(b) NO DEFAULT. No Event of Default or Default shall have
occurred and be continuing or would result from the making of the requested Loan
or the Issuance of the requested Letter of Credit.
(c) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received from the Requisite Lenders, the Swing Loan Bank, the
Overdraft Line Bank or Issuing Bank, as the case may be, notice that, in the
judgment of such Person, any action, suit, investigation, litigation or
proceeding is pending or threatened in any court or before any arbitrator or
Governmental Authority which is likely to enjoin, prohibit or restrain, or
impose or result in the imposition of any material adverse condition upon, (i)
such Lender's making of the requested Loan or participation in the requested
Letter of Credit, (ii) the Swing Loan Bank's making of the requested Swing Loan,
(iii) the Overdraft Line Bank's making of the requested Overdraft Loan or (iv)
such Issuing Bank's issuance of the requested Letter of Credit.
Each submission by a Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Revolving Loan or Swing Loan, each acceptance by a
Borrower of the proceeds of each such Revolving Loan and Swing Loan and any
Overdraft Loan, each submission by a Borrower to an Issuing Bank of a Notice of
a Letter of Credit Issuance and the Issuance of such Letter of Credit, shall
constitute a representation and warranty by such Borrower as of the Funding Date
in respect of such Revolving Loan, as of the Swing Loan Funding Date in respect
of such Swing Loan, as of the funding date in respect of any Overdraft Loan and
as of the date of issuance of such Letter of Credit, that all the conditions
contained in subsections (a), (b) and (c) of this SECTION 5.02 have been
satisfied or waived in accordance with SECTION 14.07.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWERs. In
order to induce the Lenders and the Issuing Bank to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrowers
and to Issue the Letters of Credit described herein, each of the Borrowers
(other than the Multicurrency Borrowers, which so represent and warrant in favor
of the Multicurrency Lenders, only with respect to themselves and their
unconsolidated liabilities, assets, business and operations) hereby represents
and warrants to each Lender, each Issuing Bank and the Administrative Agent as
of the Closing Date and thereafter on each date as required by SECTION 5.02(a)
that the following statements are true, correct and complete:
(a) ORGANIZATION; CORPORATE POWERS.
(i) Each of the Borrowers and Borrower Subsidiaries (A) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (B) is duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and
in good standing is reasonably likely to have a Material Adverse
Effect, and (C) has all requisite corporate power and authority to own,
operate and encumber its Property and to conduct its business as
presently conducted and as proposed to be conducted in connection with
and following the consummation of the transactions contemplated by
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this Agreement. NMHG has filed and maintained effective (unless exempt
from the requirements for filing) a current Business Activity Report
with the appropriate Governmental Authority in the states of New Jersey
and Minnesota and NMHG Distribution has no account debtors located in
the states of New Jersey or Minnesota.
(ii) True, correct and complete copies of the Constituent
Documents identified on SCHEDULE 6.01-a attached hereto have been
delivered to the Administrative Agent, each of which is in full force
and effect, has not been modified or amended except to the extent
indicated therein and, to the best of each Borrower's knowledge, there
are no defaults under such Constituent Documents and no events which,
with the passage of time or giving of notice or both, would constitute
a default under such Constituent Documents.
(b) AUTHORITY; ENFORCEABILITY.
(i) Each Borrower and Borrower Subsidiary has the requisite
corporate power and authority to execute, deliver and perform each of
the Loan Documents to which it is a party.
(ii) The execution, delivery and performance of each of the
Loan Documents which have been executed and to which any Borrower or
Borrower Subsidiary is a party and the consummation of the transactions
contemplated thereby, have been duly approved by the boards of
directors and (to the extent required by law) the shareholders of such
Borrower or Borrower Subsidiary, respectively, and such approvals have
not been rescinded, revoked or modified in any respect. No other
corporate action or proceedings on the part of any Borrower or any
Borrower Subsidiary are necessary to consummate such transactions.
(iii) Each of the Loan Documents to which any Borrower or any
Borrower Subsidiary is a party has been duly executed and delivered on
behalf of such Person and constitutes its legal, valid and binding
obligation, enforceable against such Person in accordance with its
terms and is in full force and effect and no material term or condition
thereof has been amended, modified or waived from the terms and
conditions contained therein as delivered to the Administrative Agent
pursuant to SECTION 5.01(a) without the prior written consent of the
Requisite Lenders.
(iv) Each of the Loan Documents to which any Borrower or any
Borrower Subsidiary is a party, where applicable, creates valid and
perfected first priority Liens (subject only to Customary Permitted
Liens specified in CLAUSES (a) AND (b) of the definition thereof) in
the Collateral covered thereby securing the payment of all of the
Obligations purported to be secured thereby.
(v) Each Borrower and Borrower Subsidiary has performed and
complied with all the terms, provisions, agreements and conditions set
forth in each Loan Document to which it is a party and required to be
performed or complied with by such parties on or before the Closing
Date, all filings and recordings and other actions which are necessary
or desirable to perfect and protect the Liens granted pursuant to the
Loan Documents and
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preserve their required priority have been duly taken, and no Default,
Event of Default or breach of any covenant by any such party exists
thereunder.
(c) SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK. SCHEDULE 6.01-C
(i) contains a diagram indicating the corporate structure of each Borrower,
Borrower Subsidiary and any other Affiliate thereof in which such Person holds a
direct or indirect partnership, joint venture or other equity interest as of the
Closing Date; and (ii) accurately sets forth as of the Closing Date (A) the
correct legal name, the jurisdiction of incorporation, the organizational
identification number issued by the state of organization of and the federal
employer identification number of (in each case, if applicable) each Borrower
and Borrower Subsidiary, and the jurisdictions in which each Borrower and
Borrower Subsidiary is qualified to transact business as a foreign corporation,
(B) the authorized, issued and outstanding shares of each class of Capital Stock
of such Person and the owners of such shares, and (C) a summary of the direct
and indirect partnership, joint venture, or other equity interests, if any, of
each such Person in any Person that is not a corporation. None of the issued and
outstanding Capital Stock of any Borrower and Borrower Subsidiary is subject to
any vesting, redemption, or repurchase agreement, and there are no warrants or
options outstanding with respect to such Capital Stock. The outstanding Capital
Stock of each Borrower and Borrower Subsidiary is duly authorized, validly
issued, fully paid and nonassessable and is not Margin Stock.
(d) NO CONFLICT. The execution, delivery and performance of
each of the Loan Documents to which any Borrower or Borrower Subsidiary is a
party do not and will not (i) conflict with the Constituent Documents of any
Borrower or Borrower Subsidiary, (ii) constitute a tortious interference with
any Contractual Obligation of any Person, (iii) conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law or other Contractual Obligation of any
Borrower or Borrower Subsidiary, or require the termination of any other
Contractual Obligation, (iv) result in or require the creation or imposition of
any Lien whatsoever upon any of the Property or assets of any Borrower or
Borrower Subsidiary, other than Liens contemplated by the Loan Documents, or (v)
require any approval of any Borrower or Borrower Subsidiary shareholders that
has not been obtained.
(e) GOVERNMENTAL CONSENTS, ETC. The execution, delivery and
performance of each of the Loan Documents to which each Borrower and Borrower
Subsidiary is a party do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by any Governmental
Authority, except (i) filings, consents or notices which have been made,
obtained or given, or, in a timely manner, will be made, obtained, or given; and
(ii) filings necessary to create or perfect security interests in the
Collateral. None of the Borrowers and Borrower Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, or the Investment Company Act of 1940,
or any other federal or state statute or regulation which limits its ability to
incur indebtedness or its ability to consummate the transactions contemplated in
the Loan Documents.
(f) ACCOMMODATION OBLIGATIONS; CONTINGENCIES. Except as set
forth on SCHEDULE 1.01.4 as of the Closing Date, no Borrower or any Borrower
Subsidiary has any Accommodation Obligation, contingent liability or liability
for any Taxes, long-term lease or commitment, not reflected in its Financial
Statements delivered to the Administrative Agent on
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or prior to the Closing Date or otherwise disclosed to the Administrative Agent
and the Lenders in the other Schedules hereto.
(g) RESTRICTED PAYMENTS. Since the date of the Commitment
Letter, no Borrower or any Borrower Subsidiary has directly or indirectly
declared, ordered, paid or made or set apart any sum or Property for any
Restricted Payment or agreed to do so, except as permitted pursuant to SECTION
9.06 hereof.
(h) FINANCIAL POSITION. The Initial Projections and each of
the business plans and all other financial projections and related materials and
documents delivered to the Lenders pursuant hereto (including, but not limited
to, each Borrowing Base Certificate delivered hereunder) were prepared in good
faith and are based upon facts and assumptions that management of the Borrowers
believe to be reasonable in light of the then current and foreseeable business
conditions and prospects of NMHG Holding and its Subsidiaries and represent
management's opinion of the projected financial performance based on the
information available at the time so furnished. All Financial Statements
included in such materials were prepared in all material respects in conformity
with GAAP, except as otherwise noted therein, and fairly present in all material
respects the respective consolidated financial positions, and the consolidated
results of operations and cash flows for each of the periods covered thereby of
NMHG Holding and its Subsidiaries as at the respective dates thereof. The Pro
Forma, copies of which have been furnished to the Lenders, fairly presents on a
PRO FORMA basis the financial condition of NMHG Holding and its Subsidiaries as
of the Closing Date, and reflects on a PRO FORMA basis those liabilities
reflected in the notes thereto and resulting from consummation of the
transactions contemplated by the Loan Documents, and the payment or accrual of
all transaction costs payable with respect to any of the foregoing. The
Borrowers believe that the Initial Projections and the assumptions expressed in
the Pro Forma are reasonable based on the information available to the Borrowers
at the time so furnished.
(i) LITIGATION; ADVERSE EFFECTS. Except as set forth in
SCHEDULE 6.01-I, there is no action, suit, audit, proceeding, claim, allegation
of defective pricing, investigation or arbitration (or series of related
actions, suits, proceedings, allegations, investigations or arbitrations) before
or by any Governmental Authority or private arbitrator pending or, to the
Knowledge of any Borrower or any Borrower Subsidiary, threatened against any
Borrower or any Borrower Subsidiary or any Property of any of them (i)
challenging the validity or the enforceability of any of the Loan Documents,
(ii) which has or is reasonably likely to have a Material Adverse Effect, or
(iii) under the Racketeering Influenced and Corrupt Organizations Act or any
similar federal or state statue where such Person is a defendant in a criminal
indictment that provides for the forfeiture of assets to any Governmental
Authority as a criminal penalty. There is no material loss contingency within
the meaning of GAAP which has not been reflected in the consolidated Financial
Statements of NMHG Holding and its Subsidiaries. No Borrower nor any Borrower
Subsidiary is (A) in violation of any applicable Requirements of Law which
violation has had or is reasonably likely to have a Material Adverse Effect, or
(B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority which has had or is reasonably likely to
have a Material Adverse Effect.
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(j) NO MATERIAL ADVERSE CHANGE. Since December 31, 2001, there
has occurred no event which has resulted or is reasonably likely to have a
Material Adverse Effect.
(k) PAYMENT OF TAXES. All tax returns and reports of each
Borrower and Borrower Subsidiary required to be filed have been timely filed,
and all taxes, assessments, fees and other governmental charges thereupon and
upon their respective Property, assets, income and franchises which are shown in
such returns or reports to be due and payable have been paid other than such
taxes, assessments, fees and other governmental charges (i) which are being
contested in good faith by a Borrower or Borrower Subsidiary, as the case may
be, by appropriate proceedings diligently instituted and conducted as permitted
by the terms of SECTION 8.04 and (ii) non-payment of the amounts thereof would
not, individually or in the aggregate, result in a Material Adverse Effect. No
Borrower or Borrower Subsidiary has any knowledge of any proposed tax assessment
against any Borrower or Borrower Subsidiary that shall have or is reasonably
likely to have a Material Adverse Effect.
(l) PERFORMANCE. None of the Borrowers or Borrower
Subsidiaries has received notice or has actual Knowledge that (i) it is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it; (ii) any condition exists which, with the giving of notice or the lapse of
time or both, would constitute a default with respect to any such Contractual
Obligation; or (iii) any of its Property is in violation of any Requirement of
Law and which in the case of any of the foregoing has had or is reasonably
likely to have a Material Adverse Effect.
(m) DISCLOSURE. The representations and warranties of each
Borrower and Borrower Subsidiary contained in the Loan Documents and all
certificates and documents delivered to the Administrative Agent and the Lenders
pursuant to the terms hereof and the other Loan Documents, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained herein or therein, in light of the
circumstances under which and the time at which they were made, not misleading.
No Borrower nor Borrower Subsidiary has intentionally withheld any fact from the
Administrative Agent, the Issuing Bank or any Lender in regard to any matter
which has had or is reasonably likely to have a Material Adverse Effect.
(n) REQUIREMENTS OF LAW. Each of the Borrowers and Borrower
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its business, in each case where the failure to so comply individually or in the
aggregate shall have or is reasonably likely to have a Material Adverse Effect.
(o) ENVIRONMENTAL MATTERS. Except as set forth in SCHEDULE
6.01-O and except as is not reasonably likely to have a Material Adverse Effect:
(i) the operations of the Borrowers and Borrower Subsidiaries
comply in all respects with all applicable Environmental, Health or
Safety Requirements of Law;
(ii) each Borrower and Borrower Subsidiary has obtained all
environmental, health and safety Permits necessary for its respective
operations as currently conducted and Properties as currently used, and
all such Permits are in good standing, and each
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Borrower and each Borrower Subsidiary is currently in compliance with
all terms and conditions of such Permits;
(iii) none of the Borrowers and Borrower Subsidiaries nor any
of their respective present or past Property or operations, are subject
to or the subject of any currently effective or ongoing judicial or
administrative proceeding, order, judgment, decree, dispute,
negotiations, agreement, or settlement respecting (I) any violation of
or liability under any Environmental, Health or Safety Requirements of
Law, (II) any Remedial Action, or (III) any Claims or Liabilities and
Costs arising from the Release or threatened Release of a Contaminant
into the environment;
(iv) no Borrower nor any Borrower Subsidiary has filed any
notice under any applicable Requirement of Law: (A) reporting to any
Person or Governmental Authority a Release of a Contaminant within the
past three years; (B) reporting under Section 103(c) of CERCLA,
indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or
any state equivalent; or (C) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law or condition in any
Permit under an Environmental, Health or Safety Requirement of Law
within the past three years;
(v) none of the present or, to any Borrower's Knowledge, past
Property of any Borrower or Borrower Subsidiary is listed or proposed
for listing on the National Priorities List ("NPL") pursuant to CERCLA
or on the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of sites
requiring Remedial Action;
(vi) no Borrower nor any Borrower Subsidiary has, to its
Knowledge, sent or directly arranged for the transport of any product,
material or waste, to any current or proposed NPL site, or any site on
any similar state list of sites requiring Remedial Action;
(vii) there is not now in connection with or resulting from
any Borrower's or any of Borrower Subsidiary's operations, nor, to any
Borrower's knowledge, has there ever been on or in any of the current
or former Property (A) any treatment, recycling, storage or disposal of
any hazardous waste requiring a permit under 40 C.F.R. Parts 264 and
265 or any state equivalent, (B) any solid waste landfill, waste pile,
petroleum or hazardous waste, swamp, pit, pond, underground storage
tank or surface impoundment, or (C) a reportable or non-permitted
Release to the environment of any Contaminant involving any
polychlorinated biphenyls used in hydraulic oils, electrical
transformers or other Equipment;
(viii) to each Borrower's and Borrower Subsidiary's Knowledge,
there have been no Releases of any Contaminants to the environment from
any Property except (A) in compliance with Environmental, Health or
Safety Requirements of Law, or (B) which have been addressed to the
satisfaction of the appropriate Governmental Authorities;
(ix) no Environmental Lien has attached to any Property;
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(x) within the last year each Borrower and Borrower Subsidiary
has inspected its respective Property and such Property does not
contain any asbestos-containing material or visible evidence of mold
growth;
(xi) none of the Property presently is subject to any
Environmental Property Transfer Act, or the extent such acts are
presently applicable to any such Property, the Borrowers and the
Borrower Subsidiaries have fully complied with the requirements of such
acts; and
(xii) the Borrowers and their Subsidiaries, taken as a whole,
are not, and to their Knowledge will not be, subject to Liabilities and
Costs arising out of or relating to environmental, health or safety
matters that have resulted or are reasonably likely to result in cash
expenditures by the Borrowers and their Subsidiaries in excess of
$2,500,000 in the aggregate for any calendar year ending after the
Closing Date.
(p) ERISA MATTERS. No Borrower nor any ERISA Affiliate
maintains or contributes to any Benefit Plan, Multiemployer Plan or Foreign
Pension Plan other than those listed on SCHEDULE 6.01-P attached hereto. Each
Plan which is intended to be qualified under Section 401(a) of the Internal
Revenue Code as currently in effect either (i) has received a favorable
determination letter from the IRS that the Plan is so qualified or (ii) an
application for determination of such tax-qualified status will be made to the
IRS prior to the end of the applicable remedial amendment period under Section
401(a) of the Internal Revenue Code as currently in effect, and a Borrower or an
ERISA Affiliate shall diligently seek to obtain a determination letter with
respect to such application. Except as identified on SCHEDULE 6.01-P, no
Borrower nor any Borrower Subsidiary maintains or contributes to any 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. Each Borrower and each Borrower Subsidiary is in
compliance in all material respects with the responsibilities, obligations and
duties imposed on it by ERISA and the Internal Revenue Code with respect to all
Plans. No Benefit Plan has incurred any accumulated funding deficiency (as
defined in Sections 302(a)(2) of ERISA and 412(a) of the Internal Revenue Code)
whether or not waived. No Borrower nor 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. No Borrower nor any ERISA Affiliate
has any potential liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. No Borrower nor any ERISA Affiliate has incurred any liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
and furnished to the Administrative Agent is complete and accurate. Except as
identified on SCHEDULE 6.01-P, since the date of each such Schedule B, there has
been no material adverse change in the funding status or financial condition of
the Benefit Plan relating to such Schedule B. No Borrower nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan. No Borrower nor any ERISA
Affiliate has failed to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or
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other payment. No Borrower nor any ERISA Affiliate is required to provide
security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 6.01-P, no Borrower nor any
Borrower Subsidiary has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement. 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 Closing 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 employees under each such plan, and any information about funding to
provide for such welfare benefits.
(q) FOREIGN EMPLOYEE BENEFIT MATTERS. Each Foreign Employee
Benefit Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plan. Each Foreign Employee Benefit Plan intended
to qualify for the most favorable tax and accounting treatment available in
respect of it is so qualified. With respect to any Foreign Pension Plan with a
defined benefit element not wholly covered by insurance maintained or
contributed to by any Borrower or Borrower Subsidiary, the most recent valuation
for such plan has been disclosed. Contributions to such Foreign Pension Plan are
being made at the rate recommended by actuarial advice to eliminate any
projected benefit obligation (PBO) deficits disclosed in such valuations in the
period prior to the next valuation, and no Borrower or Borrower Subsidiary, or
trustee has taken nor will take, any action which would materially increase any
such deficit. With respect to any Foreign Employee Benefit Plan maintained or
contributed to by any Borrower or any Borrower Subsidiary (other than a Foreign
Pension Plan), reasonable reserves have been established in accordance with
prudent business practice or where required by best accounting practices in the
jurisdiction in which such Plan is maintained having regard to tax legislation.
The aggregate unfunded liabilities, after giving effect to any reserves for such
liabilities, with respect to such Plans will not result in a material liability.
There are no actions, suits or claims (other than routine claims for benefits)
pending or, to the best knowledge of the Borrowers, threatened against any
Borrower, any Borrower Subsidiary or any ERISA Affiliate with respect to any
Foreign Employee Benefit Plan.
(r) LABOR MATTERS.
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(i) Except as set forth in SCHEDULE 6.01-R, as of the Closing
Date there is no collective bargaining agreement covering any of the
employees of any Borrower or Borrower Subsidiary. To each Borrower's
Knowledge, except as set forth on SCHEDULE 6.01-R, as of the Closing
Date no attempt to organize the employees of any Borrower or Borrower
Subsidiary is pending, threatened or planned.
(ii) Set forth in SCHEDULE 6.01-R or SCHEDULE 6.01-P, as the
case may be, is a list, as of the Closing Date, of all material
consulting agreements, material executive employment agreements,
executive compensation plans, deferred compensation agreements,
employee pension plans or retirement plans, employee profit sharing
plans, employee stock purchase and stock option plans, and severance
plans of NMHG Holding and its Subsidiaries providing for benefits for
employees of NMHG Holding and its Subsidiaries.
(s) SECURITIES ACTIVITIES. None of the Borrowers or Borrower
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(t) SOLVENCY. After giving effect to (i) the issuance of any
Indebtedness on any date, (ii) the making of any Restricted Payment or payment
on any Senior Note on any date, (iii) the sale of assets on any date and (iv)
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.
(u) PATENTS, TRADEMARKS, PERMITS, ETC.; GOVERNMENT APPROVALS.
(i) Each Borrower and Borrower Subsidiary owns, is licensed or
otherwise has the lawful right to use, or have all permits and other
governmental approvals, patents, trademarks, trade names, industrial
designs, copyrights, technology, know-how and processes used in or
necessary for the conduct of its respective business as currently
conducted except where the failure to do so would not have or be
reasonably likely to have a Material Adverse Effect. Except as set
forth on SCHEDULE 6.01-U, as of the Closing Date no claims are pending
or, to the best of each Borrower's Knowledge following inquiry,
threatened that any Borrower or any Borrower Subsidiary is infringing
upon the rights of any Person with respect to such permits and other
governmental approvals, patents, trademarks, trade names, industrial
designs, copyrights, technology, know-how and processes, except for
such claims and infringements that do not, in the aggregate, give rise
to any liability on the part of any Borrower or any Borrower Subsidiary
which has, or is reasonably likely to, have a Material Adverse Effect.
(ii) Except for Liens granted to the Administrative Agent for
the benefit of the Administrative Agent, the Issuing Bank and the
Lenders, the transactions contemplated by the Loan Documents will not
impair the ownership of or rights under (or the license or other right
to use, as the case may be) any permits and governmental approvals,
patents, trademarks, trade names, industrial designs, copyrights,
technology, know-how or
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processes by any Borrower or Borrower Subsidiary in any manner which
shall have or is reasonably likely to have a Material Adverse Effect.
(v) ASSETS AND PROPERTIES. Each Borrower and each Borrower
Subsidiary has good and marketable title to all of the Collateral and all other
material assets and Property (tangible and intangible) owned by it (except
insofar as marketability may be limited by any laws or regulations of any
Governmental Authority affecting such assets or by the existence of any Liens
permitted under SECTION 9.03), and all such assets and Property are free and
clear of all Liens except Liens securing the Obligations and Liens permitted
under SECTION 9.03. Substantially all of the material assets and Property owned
by, leased to, or used by each Borrower and/or each Borrower Subsidiary is in
adequate operating condition and repair, ordinary wear and tear excepted, is
free and clear of any known defects except such defects as do not substantially
interfere with the continued use thereof in the conduct of normal operations,
and is able to serve the function for which they are currently being used,
except in each case where the failure of such asset to meet such requirements
has not, or is not reasonably likely to have a Material Adverse Effect. Neither
this Agreement nor any other Loan Document, nor any transaction contemplated
under any such agreement, will affect any right, title or interest of any
Borrower or any Borrower Subsidiary in and to any of such assets in a manner
that has, or is reasonably likely to have, a Material Adverse Effect. SCHEDULE
6.01-V contains a true and complete list of (i) all of the Real Property owned
in fee simple by each Credit Party, (ii) a true and complete list of all Leases
in effect on the Closing Date with annual rental payments which exceed $100,000
or with Inventory at any time with a Fair Market Value of $1,000,000 or more,
and (iii) a true and complete list of all Bailees at which there is, or is
reasonably expected to be, (A) for a period of 30 days or more during any
twelve-month period, Inventory with a Fair Market Value of $250,000 or more or
(B) at any time, Inventory with a Fair Market Value of $1,000,000 or more.
(w) INSURANCE. SCHEDULE 6.01-W attached hereto accurately sets
forth as of the Closing Date all insurance policies and programs currently in
effect with respect to the respective Property and assets and business of the
Borrowers and the Borrower Subsidiaries, specifying for each such policy and
program, (i) the amount thereof, (ii) the risks insured against thereby, (iii)
the name of the insurer and each insured party thereunder, (iv) the policy or
other identification number thereof, (v) the expiration date thereof, (vi) the
annual premium with respect thereto, and (vii) a list of claims in excess of
$500,000 made thereunder during the immediately preceding three (3) calendar
years. Each Borrower has delivered to the Administrative Agent copies of all
such insurance policies. Such insurance policies and programs are currently in
full force and effect, in compliance with the requirements of SECTION 8.05 and
are in amounts sufficient to cover the replacement value of the respective
Property and assets of the Borrowers and the Borrower Subsidiaries.
(x) PLEDGE OF COLLATERAL. The grant and perfection of the
security interests in the Capital Stock pledged pursuant to any Pledge
Agreement, is not made in violation of the registration provisions of the
Securities Act, any applicable provisions of other federal securities laws,
state securities or "Blue Sky" law, foreign securities law, or applicable
general corporation law or in violation of any other Requirement of Law.
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(y) TRANSACTIONS WITH AFFILIATES. SCHEDULE 6.01-Y lists as of
the Closing Date each and every existing material agreement (other than the Loan
Documents) as of the Closing Date and arrangement that any Credit Party has
entered into with any of their respective Affiliates which are not Credit
Parties.
(z) BANK ACCOUNTS. SCHEDULE 6.01-Z sets forth as of the
Closing Date all of (i) the Collection Account Banks and other bank accounts of
the Credit Parties where proceeds of Collateral are from time to time deposited
by the Credit Parties, including the Lockboxes, the Collection Accounts and the
Disbursement Accounts, their addresses and the relevant account numbers, and
(ii) the Cash Collateral Accounts, and each Borrower has disclosed all
additions, subtractions and modifications to such Schedule to the Administrative
Agent and the Lenders as required by SECTION 3.06.
(aa) INDEBTEDNESS; REFINANCED INDEBTEDNESS. SCHEDULE 1.01.5
sets forth as of the Closing Date all Indebtedness for borrowed money of each
Borrower and Borrower Subsidiary, and there are no defaults in the payment of
principal or interest on any such Indebtedness and no payments thereunder have
been deferred or extended beyond their stated maturity (except as disclosed on
such Schedule). The Refinanced Indebtedness and all accrued and unpaid interest
thereon has been paid in full or provision for payment has been made such that,
in accordance with the express provisions of the instruments governing such
Indebtedness, the Borrowers and all Borrower Subsidiaries have been or will be
upon payment in full of the Refinanced Indebtedness irrevocably released from
all liability and Contractual Obligations with respect thereto. All Liens, if
any, securing the Refinanced Indebtedness have been released.
(bb) TAX EXAMINATIONS. The IRS has examined (or is foreclosed
from examining by applicable statutes) the Parent's consolidated federal income
tax returns for all tax periods prior to and including the taxable year ending
December 31, 1997. All deficiencies which have been asserted against or with
respect to any Borrower or any Borrower Subsidiary as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and no issue has been raised in any such
examination which, by application of similar principles, reasonably can be
expected to result in assertion of a material deficiency for any other year not
so examined which has not been reserved for in NMHG Holding's consolidated
Financial Statements to the extent, if any, required by GAAP. No Borrower nor
any Borrower Subsidiary has taken any reporting positions for which it does not
have a reasonable basis and does not anticipate any further material tax
liability with respect to the years which have not been closed pursuant to
applicable law.
(cc) COMPENSATION. Except (i) as disclosed in documents filed
with the Securities and Exchange Commission, (ii) as set forth on SCHEDULE
6.01-CC attached hereto, and (iii) for increases in the ordinary course of
business and in accordance with past practices, during the period commencing on
January 1, 2002, and ending on the Closing Date, no Borrower nor any Borrower
Subsidiary has increased or agreed to increase the aggregate compensation or
benefits (including severance benefits) payable or accruing to any past or
present officer of any of such Persons or Person having management
responsibilities.
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(dd) RECEIVABLES SALE AGREEMENTS. Each of the Receivables Sale
Agreements constitutes a legal, valid and binding obligation of the parties
thereto, enforceable against such parties in accordance with its terms and is in
full force and effect. All Receivables originated by the Netherlands Borrower
have been sold and assigned to the UK Borrower and will be sold and assigned to
the UK Borrower on a daily basis. After the effective date, if any, of the
Receivables Sale Agreement between the UK Borrower and NACCO Materials Handling
S.R.L., all Receivables originated by NACCO Materials Handling S.R.L. have been
sold and assigned to the UK Borrower and will be sold and assigned to the UK
Borrower on a daily basis. All steps necessary to ensure that the UK Borrower
can exercise all of its rights under the Receivables so transferred under the
Receivables Sale Agreements directly against the relevant account debtors have
been taken. To the extent required, the Receivables Sale Agreements enable the
UK Borrower and the Administrative Agent to effect transfers of the bare legal
title of any Receivables to the UK Borrower at agreed times in the future.
(ee) CERTAIN BORROWER SUBSIDIARIES. None of the following
Persons have, as of any date of determination, total assets in excess of
$5,000,000: Hyster Canada Limited, Hyster France S.A.R.L., Hyster Germany GmbH,
Hyster Italia S.R.L., Hyster Singapore Pte Ltd., Yale Fordertechnik
Handelgesellschaft mbH, and Yale France Manutention S.A.R.L. except to the
extent the Capital Stock of such Borrower Subsidiary has been pledged for the
benefit of the Administrative Agent in accordance with SECTION 9.07(c) and such
Borrower Subsidiary has provided the guarantees and security required under
SECTION 9.07(c).
ARTICLE VII
REPORTING COVENANTS
Each Borrower (other than the Multicurrency Borrowers which so
covenant in favor of the Multicurrency Lenders only with respect to themselves
and their consolidated liabilities, assets, business and operations) covenants
and agrees that so long as any Commitment is outstanding and thereafter until
Payment In Full of all of the Obligations, unless the Requisite Lenders shall
otherwise give prior written consent thereto:
7.01. FINANCIAL STATEMENTS. Each Borrower shall maintain, and
shall cause each Borrower Subsidiary to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated and consolidating Financial Statements in
conformity with GAAP, and each of the Financial Statements described below shall
be prepared from such system and records. The Borrowers shall deliver or cause
to be delivered to the Administrative Agent and the Lenders:
(a) MONTHLY REPORTS. Within thirty (30) days after the end of
each fiscal month in each Fiscal Year (other than each fiscal month which is the
last month of any fiscal quarter or of the Fiscal Year), the consolidated
balance sheets of NMHG Holding and its Subsidiaries as at the end of such period
and the related consolidated statements of income and cash flow of NMHG Holding
and its Subsidiaries for such fiscal month and for the period from the beginning
of the then current Fiscal Year to the end of such fiscal month, and for the
corresponding period during the previous Fiscal Year, and a comparison of the
statement of the year to date earnings and cash flow to the corresponding
statement for the corresponding period from the previous Fiscal Year, and the
forecasted consolidated balance sheet and consolidated
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statement of earnings and cash flow most recently provided pursuant to SECTION
7.01(f), and a comparison of the statement of year to date earnings and cash
flow to the annual operating plan, certified by a Financial Officer of NMHG
Holding as fairly presenting in all material respects the consolidated financial
position of NMHG Holding and its Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
accordance with GAAP, subject to normal year end adjustments.
(b) QUARTERLY REPORTS. As soon as practicable, and in any
event within forty-five (45) days after the end of the first three fiscal
quarters in each Fiscal Year:
(i) the consolidated balance sheets of NMHG Holding and its
Subsidiaries as at the end of such period and the related consolidated
statements of income, and cash flow of NMHG Holding and its
Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal
quarter, setting forth in each case in comparative form, on a
consolidated basis only, the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the consolidated financial forecast for the current Fiscal
Year delivered on the Closing Date or pursuant to SECTION 7.01(f), as
applicable,
(ii) the consolidating balance sheets of NMHG Holding, which
includes the wholesale and retail divisions of NMHG Holding and
eliminations as at the end of such period and the related consolidating
statements of income and cash flow of NMHG Holding, which includes the
wholesale and retail divisions of NMHG Holding and eliminations for
such fiscal quarter and for the period from the beginning of the then
current Fiscal Year to the end of such fiscal quarter;
(iii) the consolidated balance sheets of the UK Borrower as at
the end of such period and the related consolidated statements of
income and cash flow of the UK Borrower for such fiscal quarter and for
the period from the beginning of the then current Fiscal Year to the
end of such fiscal quarter; and
(iv) the consolidated balance sheets of the Netherlands
Borrower and its Subsidiaries as at the end of such period and the
related consolidated statements of income and cash flow of the
Netherlands Borrower and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current Fiscal Year to
the end of such fiscal quarter;
in each case, certified by a Financial Officer of (x) with respect to CLAUSE (i)
or (ii) above, NMHG Holding, (y) with respect to CLAUSE (iii) above, NMHG
Holding or the UK Borrower, and (z) with respect to CLAUSE (iv) above, NMHG
Holding or the Netherlands Borrower, as fairly presenting the consolidated and
consolidating (where applicable) financial position of the reporting Persons as
at the dates indicated and the results of their operations and cash flow for the
periods indicated in accordance with GAAP (with respect to the UK Borrower, the
Netherlands Borrower and/or their Subsidiaries, GAAP in the United Kingdom and
the Netherlands, respectively), subject to normal year end adjustments.
Notwithstanding the foregoing, the reports described in CLAUSES (b)(iii),
(b)(iv), (c)(iii) AND (c)(ii)(A) AND (c)(ii)(B)
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shall not be required following the refinancing of the Multicurrency Facility in
accordance with SECTION 9.01(m).
(c) ANNUAL REPORTS.
(i) Within ninety (90) days after the end of each Fiscal Year:
(A) audited consolidated Financial Statements of NMHG Holding
and its Subsidiaries reported on by the Accounting Firm, which
report shall be unqualified (or, if qualified, only as to
non-material matters) and shall state that such Financial
Statements fairly present the consolidated financial position
of NMHG Holding and its Subsidiaries as at the dates indicated
and the results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which
such Accounting Firm shall concur and which shall have been
disclosed in the notes to the Financial Statements) and that
the examination by such Accounting Firm in connection with
such consolidated Financial Statements has been made in
accordance with generally accepted auditing standards, and
(B) the consolidating balance sheets of NMHG Holding, which
includes the wholesale and retail divisions of NMHG Holding
and eliminations as at the end of such period and the related
consolidating statements of income and cash flow of NMHG
Holding, which includes the wholesale and retail divisions of
NMHG Holding and eliminations of NMHG Holding for such Fiscal
Year;
(ii) Within one hundred thirty-five (135) days after the end
of each Fiscal Year:
(A) the consolidated audited (by an Accounting Firm) balance
sheets of the UK Borrower as at the end of such period and the
related audited (by an Accounting Firm) consolidated
statements of income and cash flow of the UK Borrower for such
Fiscal Year, which balance sheets and statements of income
constitute the local statutory reports; and
(B) the consolidated audited balance sheets of the Netherlands
Borrower and its Subsidiaries as at the end of such period and
the related audited (by an Accounting Firm) consolidated
statements of income and cash flow of the Netherlands Borrower
and its Subsidiaries for such Fiscal Year, which balance
sheets and statements of income constitute the local statutory
reports;
in each case, certified by a Financial Officer of NMHG Holding as fairly
presenting the consolidated and consolidating (where applicable) financial
position of the reporting Persons as at the dates indicated and the results of
their operations and cash flow for the periods indicated in accordance with GAAP
(with respect to the UK Borrower, the Netherlands Borrower and/or their
Subsidiaries, GAAP in the United Kingdom and the Netherlands, respectively).
(d) PARENT REPORTS. The Parent's annual report on Form 10-K
and annual report to shareholders (including audited financial statements).
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(e) OFFICER'S CERTIFICATE. Together with each delivery of any
Financial Statement pursuant to (i) PARAGRAPHS (A), (B) and (C) of this SECTION
7.01, an Officer's Certificate of NMHG Holding, stating that the Financial
Officer signatory thereto has reviewed the terms of the Loan Documents, and has
made, or caused to be made under his/her supervision, a review in reasonable
detail of the transactions and consolidated and consolidating financial
condition of NMHG Holding and its Subsidiaries during the accounting period
covered by such Financial Statements, that such review has not disclosed the
existence during or at the end of such accounting period, and that such Person
does not have knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event which constitutes an Event of Default or
Default, or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action any Borrower or any
Borrower Subsidiary has taken, is taking and proposes to take with respect
thereto; and (ii) PARAGRAPHS (b) and (c) of this SECTION 7.01, a certificate
(the "COMPLIANCE CERTIFICATE"), which shall be substantially in the form of
EXHIBIT T attached hereto, signed by a Financial Officer of NMHG Holding,
setting forth calculations (with such specificity as the Administrative Agent
may reasonably request) for the period then ended which demonstrate compliance,
when applicable, with the provisions of ARTICLE X and, when applicable,
demonstrate whether the Applicable Fixed Rate Margin, the Applicable Floating
Rate Margin, the Applicable Letter of Credit Fee Rate, the Applicable Overdraft
Rate Margin, and the Applicable Unused Commitment Fee Rate are to be adjusted
due to a change in the Leverage Ratio.
(f) BUSINESS PLANS; FINANCIAL PROJECTIONS. Within one calendar
week of each February meeting of the board of directors of NMHG Holding and not
later than March 1st of each Fiscal Year, and containing substantially the same
types of financial information contained in the Initial Projections, the annual
business plan for NMHG Holding and its Subsidiaries for such Fiscal Year and for
each month in such Fiscal Year, the annual long-range business forecast of NMHG
Holding and its Subsidiaries for each succeeding Fiscal Year, up to and
including the Fiscal Year during which it is anticipated that the Obligations
shall be Paid In Full, containing a consolidated balance sheet, income statement
and statement of cash flow.
(g) MANAGEMENT LETTER. Together with each delivery of the
Financial Statements referred to in SECTION 7.01(c), a copy of any management
letter or any similar report delivered to any Borrower by the Accountant in
connection with such Financial Statements. The Administrative Agent and each
Lender may, with the written consent of any Borrower (which consent shall not be
unreasonably withheld or delayed), communicate directly with such accountants in
the presence of, or with the consent of, a Financial Officer of such Borrower or
of NMHG Holding.
7.02. EVENTS OF DEFAULT. Promptly upon any Borrower obtaining
Knowledge (a) of any condition or event which constitutes an Event of Default or
Default, or becoming aware that any Lender, the Issuing Bank or the
Administrative Agent has given any written notice with respect to a claimed
Event of Default or Default, (b) that any Person has given any notice to any
Borrower or any Borrower Subsidiary or taken any other action with respect to a
claimed default or event or condition of the type referred to in SECTION
11.01(e), or (c) of any condition or event which has or is reasonably likely to
result in a Material Adverse Effect or affect the value of, or the
Administrative Agent's interest in, the Collateral in any material respect, such
Borrower shall deliver to the Administrative Agent and the Lenders an Officer's
Certificate specifying (A) the
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nature and period of existence of any such claimed default, Event of Default,
Default, condition or event, (B) the notice given or action taken by such Person
in connection therewith, and (C) the remedial action any Borrower or Borrower
Subsidiary, as the case may be, has taken, is taking and proposes to take with
respect thereto.
7.03. LAWSUITS. Promptly upon (and, in any event, within ten
(10) Business Days of) any Borrower obtaining Knowledge of the institution of,
or written threat of, any Claim, action, suit, proceeding, governmental
investigation, any allegation of defective pricing, or any arbitration against
or affecting any Borrower or any Borrower Subsidiary or any Property of any
Borrower or Borrower Subsidiary not previously disclosed pursuant to SECTION
6.01(i), which action, suit, proceeding, governmental investigation or
arbitration exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in such Borrower's reasonable
judgment, any Borrower or Borrower Subsidiary (or the Borrowers and the Borrower
Subsidiaries as a whole) to liability which has or is reasonably likely to have
a Material Adverse Effect, such Borrower shall give written notice thereof to
the Administrative Agent and the Lenders and provide such other information as
may be reasonably available to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. On the first Business Day of each
fiscal quarter, the Borrowers shall provide the Administrative Agent with a
schedule identifying (a) any written threat of, any Claim, action, suit,
proceeding, governmental investigation, any allegation of defective pricing, or
any arbitration against or affecting any Borrower or any Borrower Subsidiary or
any Property of any Borrower or Borrower Subsidiary not previously disclosed
pursuant to SECTION 6.01(i) or notified to the Administrative Agent in
accordance with this SECTION 7.03, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose any Borrower or Borrower
Subsidiary (or the Borrowers and the Borrower Subsidiaries as a whole) to a
liability in an amount aggregating $3,000,000 or more (exclusive of claims
covered by insurance policies of any Borrower or Borrower Subsidiary unless the
insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims) and (b) any commercial tort claim filed by any
Domestic Credit Party stating a claim of $1,000,000 or more, together with an
addendum granting a security interest in such claim as required by the Domestic
Security Agreement.
7.04. INSURANCE. As soon as practicable and in any event by
the last day in each calendar year, each Borrower shall deliver to the
Administrative Agent (i) a report in form and substance reasonably satisfactory
to the Administrative Agent outlining all material insurance coverage (including
any self-insurance provided by any Borrower, Parent or any Borrower Subsidiary
but excluding health, medical, dental and life insurance (other than key man
life insurance)) maintained as of the date of such report by any Borrower,
Borrower Subsidiary or the Parent on their behalf and the duration of such
coverage and (ii) evidence that all premiums then due and payable with respect
to such coverage have been paid (except as otherwise agreed to by the
Administrative Agent).
7.05. BORROWING BASE CERTIFICATE. On each Wednesday (or if
such day is not a Business Day, on the next succeeding Business Day) or more
frequently if requested by the Administrative Agent in its sole discretion
(each, a "BORROWING BASE DELIVERY DATE"), the
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Domestic Borrowers and the Multicurrency Borrowers shall each provide the
Administrative Agent (which the Administrative Agent will promptly deliver to
each Domestic Lender and each Multicurrency Lender, respectively) with a
Borrowing Base Certificate (a) with respect to Eligible Receivables, reporting
as of the last day of the immediately preceding week and (b) with respect to
Eligible Inventory, reporting as of (i) the last Business Day of the second
preceding calendar month on any Borrowing Base Delivery Date on or prior to the
fifteenth day of the calendar month and (ii) as of the last Day of the
immediately preceding calendar month on any Borrowing Base Delivery Date after
the fifteenth day of the calendar month, or, in any case of clauses (a) or (b)
above, as of any other date requested by the Administrative Agent in its sole
discretion, together with such supporting documents as the Administrative Agent
requests, all with respect to the Domestic Facility certified as being true,
accurate and complete by a Financial Officer of the Domestic Borrowers, and all
with respect to the Multicurrency Facility certified as being true, accurate and
complete by a Financial Officer of the Multicurrency Borrowers.
7.06. ERISA AND ANALOGOUS NOTICES. Each Borrower shall deliver
or cause to be delivered to the Administrative Agent and the Lenders, at such
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event:
(a) within ten (10) Business Days after any Borrower or any
ERISA Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of a Financial Officer of such Borrower describing
such Termination Event and the action, if any, which such Borrower or any ERISA
Affiliate has taken, is taking or proposes to take with respect thereto, and
when known, any action taken or threatened by the IRS, DOL, PBGC or any
analogous foreign Governmental Authority in relation to Foreign Pension Benefit
Plans with respect thereto;
(b) within ten (10) Business Days after any Borrower or any
Borrower Subsidiary knows or has reason to know that a prohibited transaction
defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has
occurred, a statement of a Financial Officer of such Borrower describing such
transaction and the action which such Borrower or any ERISA Affiliate has taken,
is taking or proposes to take with respect thereto;
(c) within three (3) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within three (3) Business Days after receipt by any
Borrower or any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan, copies of
each such report;
(e) within three (3) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with respect to
any Benefit Plan and all communications received by any Borrower or any ERISA
Affiliate with respect to such request;
(f) within three (3) Business Days after the occurrence any
material increase in the benefits of any existing Benefit Plan or the
establishment of any new Benefit Plan or the
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commencement of contributions to any Benefit Plan to which any Borrower or any
ERISA Affiliate was not previously contributing, notification of such increase,
establishment or commencement;
(g) within three (3) Business Days after any Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of each
such notice;
(h) within three (3) Business Days after any Borrower or any
Borrower Subsidiary receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such notice and letter;
(i) within three (3) Business Days after any Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within three (3) Business Days after any Borrower or any
ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or payment, a notification of such failure or with respect
to a Foreign Pension Plan, within three (3) Business Days after any Borrower or
Borrower Subsidiary fails to make a required installment or other payment in
accordance with a schedule of contributions, the terms of such Foreign Pension
Plan or as otherwise required by a foreign Governmental Authority;
(k) within three (3) Business Days after any Borrower or any
ERISA Affiliate knows (A) a Multiemployer Plan has been terminated, (B) the
administrator or plan sponsor of a Multiemployer Plan intends to terminate a
Multiemployer Plan, or (C) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan; and
(l) within ten (10) Business Days after any Borrower receives
written notice from the Administrative Agent requesting the same, copies of any
Foreign Employee Benefit Plan and related documents, reports and correspondence
specified in such notice.
For purposes of this SECTION 7.06, each Borrower and any ERISA Affiliate shall
be deemed to know all facts known by the Administrator of any Plan of which any
Borrower or any ERISA Affiliate is the plan sponsor.
7.07. ENVIRONMENTAL NOTICES.
(a) Each Borrower shall notify the Administrative Agent and
the Lenders in writing, promptly upon such Borrower's learning thereof, of any:
(i) notice or Claim to the effect that any Borrower or any
Borrower Subsidiary is or may be liable to any Person as a result of
exposure to or the Release or threatened Release of any Contaminant,
which liability is reasonably likely to result in an
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expenditure by any Borrower or Borrower Subsidiary of over $1,000,000
in any Fiscal Year;
(ii) notice that any Borrower or any Borrower Subsidiary is
subject to investigation by any Governmental Authority evaluating
whether any Remedial Action is needed to respond to the Release or
threatened Release of any Contaminant into the environment which
investigation is reasonably likely to result in an expenditure by any
Borrower or Borrower Subsidiary of over $1,000,000 in any Fiscal Year;
(iii) notice that any Property is subject to an Environmental
Lien;
(iv) notice to any Borrower or any Borrower Subsidiary of any
violation of any Environmental, Health or Safety Requirement of Law,
except for such violations or Claims as are not reasonably likely to
result in a Material Adverse Effect;
(v) condition, practice or circumstance reasonably likely to
result in a violation of any Environmental, Health or Safety
Requirement of Law or a Claim by any Person under any Environmental,
Health or Safety Requirement of Law, except for such violations as are
not reasonably likely to result in a Material Adverse Effect;
(vi) commencement or threat of any judicial or administrative
proceeding alleging a violation by any Borrower or any Borrower
Subsidiary of any Environmental, Health or Safety Requirement of Law,
except for such violations as are not reasonably likely to result in a
Material Adverse Effect;
(vii) new or proposed changes to any existing Environmental,
Health or Safety Requirement of Law that are reasonably likely to
result in a Material Adverse Effect;
(viii) any proposed acquisition of stock, assets, real estate,
or leasing of property, or any other similar action by any Borrower or
any Borrower Subsidiary that is reasonably likely to subject any
Borrower or any Borrower Subsidiary to additional environmental, health
or safety Liabilities and Costs of over $1,000,000 in any Fiscal Year;
or
(ix) any filing or report made by any Borrower or any Borrower
Subsidiary with any Person or Governmental Authority with respect to
any unpermitted Release or threatened Release of a Contaminant, which
Release or threatened Release is reasonably likely to result in an
expenditure of over $1,000,000 in any Fiscal Year.
(b) Within forty-five (45) days after the end of each Fiscal
Year, each Borrower shall submit to the Administrative Agent and the Lenders a
report summarizing the status of environmental, health or safety compliance,
hazard or liability issues identified in notices required pursuant to SECTION
7.07(a), disclosed on SCHEDULE 6.01-O or identified in any notice or report
required herein.
7.08. LABOR MATTERS. A Borrower shall notify the
Administrative Agent and the Lenders in writing, promptly after any Borrower has
Knowledge thereof, of (i) any material labor dispute to which any Borrower or
Borrower Subsidiary is or may become a party, including,
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without limitation, any strikes, lockouts or other disputes relating to such
Persons' plants and other facilities and (ii) any liability in excess of
$3,000,000 (arising pursuant to the Worker Adjustment and Retraining
Notification Act or otherwise) incurred with respect to the closing of any plant
or other facility of such Persons.
7.09. PUBLIC FILINGS AND REPORTS. Promptly upon the filing
thereof with the Securities and Exchange Commission, NMHG shall deliver to the
Administrative Agent and the Lenders copies of all filings or reports made in
connection with outstanding Indebtedness and Capital Stock of any Borrower or of
the Parent.
7.10. BANK ACCOUNT INFORMATION. Promptly upon receipt of a
request therefor from the Administrative Agent, the Credit Parties shall provide
to the Administrative Agent and the Lenders copies of bank statements (covering
the period of time requested by the Administrative Agent) with respect to any
bank accounts then maintained by any Borrower or any Borrower Subsidiary.
7.11. SENIOR NOTES; DEBT. NMHG Holding shall deliver a copy to
the Administrative Agent and the Lenders of (a) any material notice or other
material communication delivered by or on behalf of any Borrower to any Person
in connection with any material agreement or other document relating to the
Senior Notes or Senior Note Indenture at the same time and by the same means as
such notice or other communication is delivered to such Person and (b) any
notice or other material communication received by any Borrower from any Person
alleging the occurrence in connection with any Indebtedness described in SECTION
11.01(e) of an event described in such Section, promptly after such notice or
other communication is received by the Borrower.
7.12. OTHER REPORTS. The Borrowers shall deliver or cause to
be delivered to the Administrative Agent and the Lenders copies of all Financial
Statements, material reports and material notices (such as Form 10-Q's, Form
10-K's and other material filings), if any, sent or made available generally by
any Borrower or the Parent to its Securities holders or filed with the
Securities and Exchange Commission and all press releases made available
generally by any Borrower, the Parent or any Borrower Subsidiary to the public
concerning material developments in the business of any Borrower, the Parent or
any Borrower Subsidiary, and all notifications received by any Borrower, the
Parent or any Borrower Subsidiary pursuant to the Securities Exchange Act and
the rules promulgated thereunder.
7.13. OTHER INFORMATION. Promptly upon receipt of a request
therefor from the Administrative Agent, the Borrowers shall prepare and deliver
to the Administrative Agent and the Lenders such other information with respect
to any Borrower, the Parent or any Borrower Subsidiary or the Collateral
including, without limitation, schedules identifying and describing the
Collateral and any dispositions thereof and copies of each existing written
agreement or arrangement set forth on SCHEDULE 6.01-y, as from time to time may
be reasonably requested by the Administrative Agent.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Each of the Borrowers (other than the Multicurrency Borrowers
which so covenant in favor of the Multicurrency Lenders only with respect to
themselves and their consolidated liabilities, assets, business and operations)
covenants and agrees that so long as any Commitment is outstanding and
thereafter until Payment In Full of all of the Obligations, unless the Requisite
Lenders shall otherwise give prior written consent:
8.01. CORPORATE EXISTENCE, ETC. Each Borrower shall, and shall
cause each Borrower Subsidiary to, at all times maintain its respective
corporate existence and preserve and keep, or cause to be preserved and kept, in
full force and effect its rights and franchises material to its business except
where the failure to so maintain or preserve would not have or be reasonably be
likely to have a Material Adverse Effect.
8.02. CORPORATE POWERS; CONDUCT OF BUSINESS, ETC. Each
Borrower shall, and shall cause each Borrower Subsidiary to, qualify and remain
qualified to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing except where the failure to qualify or
remain qualified would not have or be reasonably be likely to have a Material
Adverse Effect.
8.03. COMPLIANCE WITH LAWS, ETC. Each Borrower shall and shall
cause each Borrower Subsidiary to, (a) comply with all Requirements of Law and
all restrictive covenants affecting such Person or the business, Property,
assets or operations of such Person, and (b) obtain as needed all Permits
necessary for such Person's operations and maintain such Permits in good
standing, except, in each case, where the failure to do is not reasonably likely
to result in a Material Adverse Effect.
8.04. PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. Each
Borrower shall, and shall cause each Borrower Subsidiary to, pay (a) all taxes,
assessments and other governmental charges less than or equal to $2,000,000
imposed upon it or on any of its Property or assets or in respect of any of its
franchises, business, income or Property within five days upon Knowledge that a
penalty or interest has accrued thereon, and (b) all Claims (including, without
limitation, claims for labor, services, materials and supplies) for sums less
than or equal to $2,000,000 which have become due and payable and which by law
have or may become a Lien (other than a Lien permitted by SECTION 9.03) upon any
of any Borrower's or Borrower Subsidiary's Property or assets, within five days
upon Knowledge that any penalty or fine has accrued with respect thereto. Each
Borrower shall, and shall cause each Borrower Subsidiary to, pay (a) on the day
when due, all taxes, assessments and other governmental charges greater than
$2,000,000 imposed upon it or on any of its Property or assets or in respect of
any of its franchises, business, income or Property, and (b) all Claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums greater than $2,000,000 which have become due and payable and
which by law have or may become a Lien (other than a Lien permitted by SECTION
9.03) upon any of any Borrower's or Borrower Subsidiary's Property or assets.
Notwithstanding the preceding sentences, any Borrower or Borrower Subsidiary
shall have the right to contest in good faith the validity or amount of any such
taxes or claims by
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proper proceedings timely instituted, and may permit the taxes or claims to be
contested to remain unpaid during the period of such contest if (i) it
diligently prosecutes such contest, (ii) it makes adequate provision in
conformity with GAAP with respect to the contested items, and (iii) during the
period of such contest, the enforcement and ability of any taxing authority to
force payment of any contested item or to impose a Lien with respect thereto is
effectively stayed. Each Borrower shall promptly pay or cause to be paid any
valid judgment enforcing any such taxes and cause the same to be satisfied of
record. No Borrower will, or will permit any Borrower Subsidiary to, file or
consent to the filing of any consolidated income tax return with any Person
other than its parent and its Subsidiaries pursuant to the Tax Sharing Agreement
or otherwise.
8.05. INSURANCE. Each Borrower shall maintain for itself and
its Subsidiaries, or shall cause each of its Subsidiaries to maintain in full
force and effect the insurance policies and programs listed on SCHEDULE 6.01-W
or substantially similar policies and programs or other policies and programs as
are acceptable to the Administrative Agent. All such policies and programs shall
be maintained with responsible and reputable insurance companies, other than
with respect to self insurance programs described in SCHEDULE 6.01-W. Each
certificate and policy relating to the Collateral and/or business interruption
coverage (other than self insurance programs) shall contain an endorsement, in
form and substance acceptable to the Administrative Agent, showing loss payable
to the Administrative Agent, for the benefit of the Holders, and, if required by
the Administrative Agent, naming the Administrative Agent as an additional
insured under such policy. Each certificate and policy relating to coverage
other than the foregoing (other than self insurance programs) shall, if required
by the Administrative Agent, contain an endorsement naming the Administrative
Agent as an additional insured under such policy. Such endorsement or an
independent instrument furnished to the Administrative Agent shall provide that
the insurance companies will give the Administrative Agent at least thirty (30)
days' written notice before any such policy or policies of insurance shall be
altered adversely to the interests of the Holders or cancelled and that no act,
whether willful or negligent, or default of any Borrower, any of its
Subsidiaries or any other Person shall affect the right of the Administrative
Agent to recover under such policy or policies of insurance in case of loss or
damage. In the event any Borrower or any Borrower Subsidiary, at any time or
times hereafter shall fail to obtain or maintain any of the policies or
insurance required herein or to pay any premium in whole or in part relating
thereto, then the Administrative Agent, without waiving or releasing any
obligations or resulting Event of Default hereunder, may at any time or times
thereafter (but shall be under no obligation to do so) obtain and maintain such
policies of insurance and pay such premiums and take any other action with
respect thereto which the Administrative Agent deems advisable. All sums so
disbursed by the Administrative Agent shall constitute Protective Advances
hereunder and be part of the Obligations, payable as provided in this Agreement.
8.06. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
(a) Each Borrower shall, and shall cause each of its
Subsidiaries to, permit any authorized representative(s) designated by the
Administrative Agent to visit and inspect, whether by access to such Borrower's
and its Subsidiaries' MIS or otherwise, any of the Property, to examine, audit,
check and make copies of its respective financial and accounting records, books,
journals, orders, receipts and any correspondence (other than privileged
correspondence with legal counsel) and other data relating to their respective
businesses or the
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transactions contemplated hereby or referenced herein (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers,
management personnel, and independent certified public accountants (in the
presence, or with the consent of, a Financial Officer of such Borrower or NMHG),
all upon reasonable written notice and at such reasonable times during normal
business hours, as often as may be reasonably requested. Each such visitation
and inspection shall be at such Borrower's expense.
(b) Each Borrower shall keep and maintain, and cause each of
its Subsidiaries to keep and maintain, in all material respects on its MIS and
otherwise proper books of record and account in which entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its
respective businesses and activities, including, without limitation,
transactions and other dealings with respect to the Collateral. If an Event of
Default has occurred and is continuing, each Borrower, upon the Administrative
Agent's request, shall, and shall cause each of its Subsidiaries to, turn over
any such records to the Administrative Agent or its representatives; provided,
however, that the Borrower may, in its discretion, retain copies of such
records.
(c) Each Borrower will, at all times from and after the date
hereof, ▇▇▇▇ the original copy of all chattel paper with a legend describing the
Administrative Agent's security interest therein and shall take all other
actions required by the applicable Security Agreements with respect to chattel
paper, and each Borrower will hold in trust and safely keep such chattel paper
so legended at locations which are either (i) owned by a Borrower or (ii) leased
by a Borrower and with respect to which a Collateral Access Agreement has been
executed.
8.07. ERISA COMPLIANCE. Each Borrower shall, and shall cause
each of its Subsidiaries to, and shall use its best efforts to cause its ERISA
Affiliates who are not Borrower Subsidiaries to, establish, maintain and operate
all Plans to comply in all material respects with the provisions of ERISA, the
Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
8.08. FOREIGN EMPLOYEE BENEFIT PLAN COMPLIANCE. Each Borrower
shall, and shall cause each of its Subsidiaries to, establish, maintain and
operate all Foreign Employee Benefit Plans to comply in all material respects
with all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans.
8.09. MAINTENANCE OF PROPERTY. Each Borrower shall, and shall
cause each of its Subsidiaries to, maintain in all material respects all of its
respective owned and leased Property in good, safe and insurable condition and
repair, ordinary wear and tear excepted, and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required;
provided, however, that such Property may be altered or renovated in the
ordinary course of such Borrower's or its Subsidiaries' business.
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8.10. FURTHER ASSURANCES; ADDITIONAL COLLATERAL.
(a) Each Borrower shall execute and deliver, and cause the
Borrower Subsidiaries to execute and deliver, within the time periods set forth
with respect to such items on the Closing List, all agreements, documents and
instruments designated as "post-closing items" on the Closing List. In the event
that any such agreement, document or instrument is not delivered within such
time periods, in addition to any other remedies provided hereunder or under the
Loan Documents, the Collateral Value of Collateral subject to such agreement,
document or instrument, if any, shall be deemed to be zero or, if such
Collateral does not otherwise have Collateral Value, the Administrative Agent
shall have the right to establish appropriate Availability Reserves based on the
value of such Collateral, until such agreements, documents and instruments with
respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and
obligations of the parties under CLAUSE (a) above, with respect to each
jurisdiction where the aggregate amount of Receivables owing by account debtors
(each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK
Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with
respect to which Receivables would be given eligibility pursuant to CLAUSES (i)
and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL
FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on or before June
29, 2002, with respect to jurisdictions constituting Material Foreign Account
Debtor Jurisdictions as of the Closing Date, cause to be delivered to the
Administrative Agent an opinion of counsel, addressed to the Administrative
Agent, the Lenders and the Issuing Bank, in form and substance reasonably
satisfactory to the Administrative Agent and, without limiting the generality of
the foregoing, concluding that, under the laws of the Material Foreign Account
Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor
Jurisdiction would recognize the stated choice of law governing the Receivables
(being Netherlands law, English law, and, if Receivables governed by Italian law
are then included, Italian law) owing from the Foreign Account Debtors in such
Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in
respect of such Receivables obtained in the courts of the jurisdiction whose law
governs the Receivables would be enforced in the Material Foreign Account Debtor
Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the
Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L.
pursuant to a Receivables Sale Agreement, such sale, and the stated choice of
Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO
Materials Handling S.R.L., Italian law, would be recognized under the laws of
the Material Foreign Account Debtor Jurisdiction (assuming that the same
constituted a valid sale under Dutch, or, as the case may be, Italian, law and
assuming that the notice of the sale required by the Receivables Sale Agreement
had been given to the Foreign Account Debtor); and (iv) if the Administrative
Agent so requires legal opinions of counsel in the relevant Material Foreign
Account Debtor Jurisdiction as enables the Administrative Agent to assess the
level of risk of the Liens granted over the Receivables (under English, Dutch,
or as applicable, Italian law under the English Deed of Charge, the Dutch law
governed Foreign Security Agreement granted by the UK Borrower or, if
applicable, any Italian law governed Foreign Security Agreement granted by the
UK Borrower): (A) not being recognized or upheld under the laws of the relevant
Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof
being successfully challenged by a trustee in bankruptcy, liquidator or similar
officer of the UK Borrower under the laws of the relevant
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Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the
level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER
OPINIONS"); provided, however, that, in the event that the Required Cross-Border
Opinions have not been delivered on or before June 30, 2002, with respect to any
Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x)
the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency
Borrowers (and any other Borrower Subsidiary party to a Receivables Sale
Agreement) shall thereafter transfer all Receivables owing from account debtors
located in such Material Foreign Account Debtor Jurisdiction to the Receivables
Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency
Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands
Borrower, the other Credit Parties and such other Borrower Subsidiary shall
enter into amendments to this Agreement and the other Loan Documents, or other
agreements, documents and instruments, in each case as the Administrative Agent
may reasonably request, to permit the transactions among the Receivables
Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower
Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower
hereunder and to grant to the Administrative Agent a Lien on all Property (other
than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In
the event that any jurisdiction where account debtors of the UK Borrower are
located becomes a Material Foreign Account Debtor Jurisdiction after the Closing
Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border
Opinions for such jurisdiction within 45 days after the date such jurisdiction
becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not
already completed, take all actions required under CLAUSES (X) and (Y) of the
proviso to the preceding sentence within 90 days after the date such
jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and
obligations of the parties under CLAUSES (a) and (b) above, at any time and from
time to time, (i) promptly following the Administrative Agent's written request
and at the expense of the applicable Person, each Borrower agrees to duly
execute and deliver, and to cause its Subsidiaries to duly execute and deliver,
any and all such further instruments and documents and take such further action
as the Administrative Agent may reasonably deem desirable in order to perfect
and protect any Lien granted or purported to be granted pursuant to the Loan
Documents or to enable the Administrative Agent, in accordance with the terms of
the applicable Loan Documents, to exercise and enforce its rights and remedies
under the Loan Documents with respect to such Collateral and (ii) promptly upon
the request of the Administrative Agent, assign to the Administrative Agent,
pursuant to an assignment in form and substance satisfactory to the
Administrative Agent, the right to receive proceeds (for application to the
Obligations in accordance with this Agreement) of any Interest Rate Contracts or
Currency Agreement to which any Credit Party is a party. Notwithstanding the
foregoing, the granting of such further assurances or security interest under
this SECTION 8.10 shall not be required if it would (A) be prohibited by other
Contractual Obligations to which such Borrower or such Subsidiary is a party,
(B) be prohibited by applicable law, or (C) result in material adverse tax
consequences to any Borrower. If the Australian Reorganization is not complete
prior to July 31, 2002, or with the consent of the Administrative Agent,
September 30, 2002, the Borrowers shall pledge for the benefit of the
Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock
of each first tier Subsidiary of any Domestic Borrower organized under the laws
of Australia.
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8.11. LANDLORD AND BAILEE WAIVERS.
(a) On or prior to the Closing Date, the Borrowers shall
obtain and deliver, and cause the Credit Parties to obtain and deliver, to the
Administrative Agent Collateral Access Agreements relating to each Bailee
location listed on SCHEDULE 6.01-V as of the Closing Date. The Borrowers shall
provide the Administrative Agent with written supplements to SCHEDULE 6.01-V as
necessary to give a true representation and warranty in SECTION 6.01(v), and the
Borrowers shall obtain and deliver, and cause the Credit Parties to obtain and
deliver, to the Administrative Agent Collateral Access Agreements relating to
each location so listed from time to time on SCHEDULE 6.01-V. With respect to
any location not listed on SCHEDULE 6.01-V in which there is, or is reasonably
expected to be, during any period of thirty days or more, Inventory with a Fair
Market Value of $250,000 or more, each Borrower shall use, and shall cause the
Credit Parties to use, its best efforts to obtain and deliver to the
Administrative Agent Collateral Access Agreements.
(b) Each Borrower shall use, and shall cause the Credit
Parties to use, its best efforts to obtain and deliver to the Administrative
Agent Collateral Access Agreements with respect to all leased Properties in
which there is, or is reasonably expect to be, Inventory with a Fair Market
Value of $1,000,000 or more.
8.12. ENVIRONMENTAL COMPLIANCE.
(a) Each Borrower and each Borrower Subsidiary shall comply
with all Environmental, Health or Safety Requirements of Law in all material
respects.
(b) Each Borrower shall obtain as needed all material Permits
necessary for their operations, and shall maintain such Permits in good
standing.
8.13. INSURANCE AND CONDEMNATION PROCEEDS.
(a) DIRECTION TO INSURERS. Each Borrower hereby directs (and,
if applicable, shall cause its Subsidiaries to direct) all insurers under
policies of Property damage, boiler and machinery and business interruption
insurance and payors of any condemnation claim or award relating to the Property
to pay all proceeds payable under such policies or with respect to such claim or
award directly to the Administrative Agent for deposit in the Domestic
Concentration Account or applicable Cash Collateral Account, as appropriate.
(b) APPLICATION OF PROCEEDS. In the event proceeds of
insurance received by the Administrative Agent under property damage, boiler and
machinery policies, business interruption insurance policies, or with respect to
a condemnation claim or award exceed $500,000 and do not constitute Replacement
Proceeds, the Administrative Agent shall, upon receipt of such proceeds, apply
all of the proceeds so received in repayment of the Obligations in the manner
set forth in SECTION 3.01(b)(iii). Notwithstanding the foregoing, in the event
proceeds of insurance received by the Administrative Agent under property
damage, boiler and machinery policies or business interruption insurance
policies (i) is less than $500,000 or (ii) constitutes Replacement Proceeds,
Administrative Agent shall, upon receipt of such proceeds, remit the amount so
received to the applicable Borrower or Borrower Subsidiary; provided, however,
in
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the case of an insurance payment or condemnation award in an amount greater
than $500,000, if (i) the Administrative Agent receives notice from the
applicable Borrower that it or its Subsidiary, as applicable, does not intend to
restore, rebuild or replace the Property subject to such insurance payment or
condemnation award, (ii) the applicable Borrower or its applicable Subsidiary
fails to replace or commence the restoration or rebuilding of such Property
within one year after the Administrative Agent's receipt of the proceeds of such
insurance payment or condemnation award, or (iii) upon completion of the
restoration, rebuilding or replacement of such Property, the unused proceeds
from such insurance payment or condemnation award exceed $500,000, then (x) upon
the occurrence of either of the events described in CLAUSES (I) or (II) above,
all such proceeds, and (y) upon the occurrence of the event described in CLAUSES
(III) above, such excess, shall constitute Net Cash Proceeds of Sale received by
the Borrower or a Subsidiary of the Borrower and shall be applied to the
Obligations pursuant to the terms of SECTION 3.01(b)(iii).
ARTICLE IX
NEGATIVE COVENANTS
Each of the Borrowers (other than the Multicurrency Borrowers
which so covenant in favor of the Multicurrency Lenders only with respect to
themselves and their consolidated liabilities, assets, business and operations)
covenants and agrees that it shall comply with the following covenants so long
as any Commitment is outstanding and thereafter until Payment In Full of all of
the Obligations, unless (except as otherwise provided below) the Requisite
Lenders shall otherwise give prior written consent thereto:
9.01. INDEBTEDNESS. No Borrower shall, or shall permit any
Borrower Subsidiary to, directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) Indebtedness for trade payables, wages and other accrued
expenses incurred in the ordinary course of business;
(c) Permitted Existing Indebtedness and any extensions,
renewals, refundings or replacements of such Indebtedness, provided that any
such extension, renewal, refunding or replacement is in an aggregate principal
amount not greater than the principal amount of, and, taken as a whole is on
terms no less favorable to such Borrower or such Subsidiary than the terms of,
such Permitted Existing Indebtedness so extended, renewed, refunded or replaced;
(d) (i) Indebtedness under Capital Leases and Indebtedness
secured by purchase money Liens (including the interest of a lessor under a
Capital Lease and Liens to which any Property is subject at the time of such
Borrower's or Borrower Subsidiary's purchase thereof) ("PURCHASE MONEY LIENS")
securing a principal amount not to exceed, together with the amounts permitted
under CLAUSE (ii) below, $35,000,000 in the aggregate at any time or from time
to time outstanding so long as each Purchase Money Lien shall attach only to the
Property to be acquired or constructed and any sale or insurance proceeds
thereof (but excluding rental contracts covering such property or any proceeds
thereof), (ii) Capital Leases and purchase
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money Indebtedness incurred to finance the acquisition of fixed assets, the
outstanding principal amount of which in the aggregate and when aggregated with
the amount of Indebtedness permitted under CLAUSE (I) above does not exceed
$35,000,000 at any time, (iii) Indebtedness under Capital Leases entered into
pursuant to a Lease Finance Transaction or with respect to rental equipment,
whether or not reflected on the balance sheet of the applicable Borrower or
Borrower Subsidiary as Inventory, collectively securing an aggregate principal
amount not to exceed $45,000,000 at any time; and (iv) any refinancing of such
Indebtedness so long as (A) any Liens granted in connection with such
Indebtedness shall only attach to the same Property formerly subject to the
Purchase Money Lien and any sale or insurance proceeds thereof (but excluding
rental contracts covering such Property or any proceeds thereof), (B) the
aggregate principal amount of the Indebtedness so refinanced shall not be
increased, (C) the Indebtedness is incurred for the same purpose as the
Indebtedness so refinanced and (D) the refinancing shall be on terms and
conditions no more restrictive than the terms and conditions of the Indebtedness
so refinanced; provided, however, the aggregate outstanding principal amount of
Indebtedness permitted under this CLAUSE (D) shall at no time exceed
$70,000,000.
(e) Indebtedness in respect of taxes, assessments,
governmental charges and Claims for labor, materials or supplies, to the extent
that payment thereof is not required pursuant to SECTION 8.04;
(f) Indebtedness constituting Accommodation Obligations
permitted by SECTION 9.05;
(g) Indebtedness arising from unsecured intercompany loans (i)
from any Credit Party to any other Credit Party, (ii) from any Borrower
Subsidiary not a Credit Party to any Credit Party or Pledged Entity, (iii) among
Borrower Subsidiaries that are not Credit Parties or Pledged Entities, (iv)
among Pledged Entities, or (v) from any Credit Party or Pledged Entity to any
Borrower Subsidiary that is not a Credit Party or Pledged Entity not to exceed,
with Investments permitted under SECTIONS 9.04(e)(v) and Accommodation
Obligations permitted under SECTION 9.05(f)(v) but without duplication,
$55,000,000 in principal amount outstanding at any time; provided, that all such
loans specified in CLAUSES (i) and (v) (with respect to loans by a Credit Party
only) shall be evidenced by promissory notes and pledged to the Administrative
Agent pursuant to a Pledge Agreement; provided, further that no additional loans
described in CLAUSES (i) THROUGH (v) shall be permitted after the occurrence and
during the continuance of an Event of Default;
(h) Indebtedness of any Borrower arising pursuant to Interest
Rate Contracts entered into in the ordinary course of business or otherwise
reasonably acceptable to the Administrative Agent;
(i) Indebtedness of any Borrower arising pursuant to Currency
Agreements entered into in the ordinary course of business or otherwise
reasonably acceptable to the Administrative Agent;
(j) Indebtedness of NMHG Holding and the Guarantors in respect
of the Senior Notes;
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(k) Indebtedness with respect to customary warranties and
indemnities made under (i) any agreements for asset sales permitted under
SECTION 9.02, (ii) Contractual Obligations of any Borrower or any Borrower
Subsidiary entered into in the ordinary course of its business, or (iii) the
payment of the Refinanced Indebtedness owing to Bank of Scotland;
(l) (i) Indebtedness with respect to the Australian Credit
Facility, (ii) Indebtedness with respect to any working capital facility
guaranteed pursuant to the Foreign Working Capital Guaranty, and (iii)
Indebtedness with respect to the Bank of Scotland Overdraft Line, provided that
such Bank of Scotland Overdraft Line may not be extended beyond June 30, 2002,
unless the Indebtedness thereunder is otherwise permitted under SECTION 9.01(q);
(m) any refinancing of the Multicurrency Facility so long as
(i) in connection therewith the Multicurrency Commitments are permanently
reduced to zero and terminated and the Multicurrency Obligations are Paid in
Full, (ii) any Liens granted in connection with such Indebtedness do not attach
to any Domestic Collateral or other Property of the Domestic Credit Parties,
(iii) the aggregate principal amount of the Indebtedness so refinanced is not
greater than $70,000,000, (iv) the Indebtedness is incurred for the same purpose
as the Indebtedness so refinanced, (v) no Default or Event of Default has
occurred and is continuing or would result after giving effect to such
refinancing, and (vi) the refinancing is on terms and conditions satisfactory to
the Administrative Agent and no more restrictive than the terms and conditions
of the Multicurrency Facility (and all documents requested by the Administrative
Agent in connection with the making of such determination shall have been
provided to the Administrative Agent) (a "PERMITTED MULTICURRENCY REFINANCING");
(n) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within five Business Days of its incurrence;
(o) unsecured Indebtedness in respect of obligations owed to
an Affiliate of the Parent (other than a Borrower or Borrower Subsidiary)
approved by the Administrative Agent and created in connection with the transfer
of accrued liabilities of the Borrowers and the Borrower Subsidiaries in respect
of transferred self-insured risk to the extent such self-insurance is permitted
under SECTION 8.05;
(p) unsecured Indebtedness pursuant to the ING Working Capital
Line; and
(q) in addition to the Indebtedness permitted by CLAUSES (A)
THROUGH (P) above, other unsecured Indebtedness, in an aggregate principal
amount not to exceed $15,000,000 at any time outstanding;
provided, however, that further incurrences of the Indebtedness described in
CLAUSES (d) and (g) above shall be prohibited if either (A) a Default or an
Event of Default shall have occurred and be continuing at the time of such
incurrence or would result therefrom or (B) such Indebtedness is prohibited
under the terms of any Indebtedness of any Borrower or Borrower Subsidiary.
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9.02. SALES OF ASSETS. No Borrower shall, or shall permit any
Borrower Subsidiary to, sell, assign, transfer, lease, convey or otherwise
dispose of any Property, whether now owned or hereafter acquired, or any income
or profits therefrom, or enter into any agreement to do so, except:
(a) the sale of Inventory in the ordinary course of business
(including sales of such Property among any of the Borrowers and the Borrower
Subsidiaries);
(b) the sale of Property for consideration not less than the
Fair Market Value thereof and (i) with respect to sales not covered by CLAUSES
(ii) through (v) below, having an aggregate Fair Market Value not in excess of
$10,000,000 in any Fiscal Year; (ii) in connection with the closure or
relocation of any facilities; (iii) such sale is of the assets or the Capital
Stock of the Australian Subsidiaries or the NMHG Mauritius Entities; (iv) such
sale is of the assets of NMHG Distribution or of the assets or the Capital Stock
of NMHG Distribution's Subsidiaries (other than of any Australian Subsidiary)
(collectively, the "DISTRIBUTION PROPERTY"), PROVIDED, that, in the case of any
sale of any Distribution Property of NMHG Distribution (other than Capital Stock
of a Subsidiary thereof), if such Distribution Property includes any Receivables
or Inventory, upon consummation of such sale, an Availability Reserve shall
become effective with respect to the Domestic Borrowing Base in an amount equal
to ten percent (10%) of the positive difference between (A) the portion of the
total consideration for such sale of Distribution Property attributable to such
Receivables and Inventory and (B) the portion of the Domestic Borrowing Base
attributable to such Receivables and Inventory, in each case as determined in
good faith by the Domestic Borrowers and the Administrative Agent; or (v) plants
and/or Property described on SCHEDULE 9.02-B; PROVIDED, HOWEVER, that (w) none
of the Property subject to sales permitted by CLAUSES (i), (ii) or (v) above
shall constitute Collateral, (x) any non-cash consideration resulting from such
sale (which shall be limited to not more than twenty-five percent (25.0%) of the
total consideration for such sale) shall, to the extent received by a Credit
Party, be pledged or assigned to the Administrative Agent pursuant to the
applicable Security Documents to which it is a party, (y) such Borrower complies
with the mandatory prepayment provisions set forth in SECTION 3.01(b) and the
conditions to the release of Collateral described in SECTION 12.09(c) and (z)
before and after giving effect to such sale, no Default or Event of Default
shall have occurred and be continuing;
(c) the transfer of Property from any Borrower Subsidiary to
any Credit Party, among any of the Credit Parties, or among any Borrower
Subsidiaries not constituting Credit Parties, in each case, otherwise in
accordance with the Loan Documents;
(d) the sale of Investments in Cash Equivalents permitted
pursuant to SECTION 9.04(a);
(e) (i) sales of Inventory or Receivables by NACCO Materials
Handling S.R.L. to the UK Borrower pursuant to any agreement in form and
substance satisfactory to the Administrative Agent, and (ii) sales and
assignments of Receivables by the Netherlands Borrower to the UK Borrower
pursuant to the Receivables Sale Agreements, provided, that all actions under
the applicable Requirements of Law required to perfect the UK Borrower's
ownership of such Receivables and Inventory, if applicable, shall have been
taken;
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(f) the sale of Property permitted pursuant to SECTION 9.10 or
in connection with transactions permitted in SECTION 9.09; and
(g) additional dispositions of Property other than Inventory
and Receivables of the Credit Parties which may be approved by the
Administrative Agent in its sole discretion and which result in Net Cash
Proceeds of not more than $5,000,000 in the aggregate and $2,000,000 in any
Fiscal Year.
9.03. LIENS. No Borrower shall, or shall permit any Borrower
Subsidiary to, directly or indirectly create, incur, assume or permit to exist
any Lien on or with respect to any of their respective Property or assets
(including the Capital Stock of each Borrower Subsidiary) except:
(a) Liens created by the Loan Documents;
(b) Permitted Existing Liens;
(c) Customary Permitted Liens;
(d) Purchase Money Liens and Liens securing Indebtedness
permitted by SECTION 9.01(d), provided, that such Purchase Money Liens and other
Liens are created within 90 days after the incurrence of the related
Indebtedness;
(e) extensions, renewals, refundings and replacements of Liens
referred to in CLAUSES (a) and (b) of this SECTION 9.03; provided that any such
extension, renewal, refunding or replacement of a Lien referred to in CLAUSE (b)
shall be limited to the Property covered by the Lien extended, renewed, refunded
or replaced and that the obligations secured by any such extension, renewal,
refunding or replacement Lien shall be in an amount not greater than the amount
of the obligations then secured by the Lien extended, renewed, refunded or
replaced;
(f) certain statutory and contractual rights of retention on
the Inventory of the Multicurrency Borrowers and their Subsidiaries located
outside of the United States which are subordinate to the Administrative Agent's
security interest therein;
(g) Liens arising from judgments, decrees or attachments under
circumstances that do not otherwise result in an Event of Default;
(h) Liens arising from precautionary UCC-1 financing statement
filings regarding Operating Leases covering only the Property subject thereto;
and
(i) any Lien approved by the Administrative Agent in
connection with an Acquisition permitted under SECTION 9.04(f) on or affecting
any Property (other than Capital Stock) acquired by a Borrower or a Borrower
Subsidiary or Property of any acquired Borrower Subsidiary or Person which
becomes a Borrower Subsidiary after the date of this Agreement; PROVIDED, that
(i) such Lien is created prior to the date on which such Person becomes a
Borrower Subsidiary, (ii) the Lien was not created in contemplation of such
Acquisition, (iii) such Lien secures Indebtedness permitted hereunder and the
principal amount thereof has not increased in contemplation of or since such
Acquisition and (iv) such Lien is removed or
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discharged within ninety (90) days of such Property being acquired or such
Person becoming a Borrower Subsidiary, as the case may be.
9.04. INVESTMENTS. No Borrower shall, or shall permit any
Borrower Subsidiary to, directly or indirectly make or own any Investment
except:
(a) Investments in cash and Cash Equivalents (including,
without limitation, Cash Collateral) (i) pledged to the Administrative Agent or
deposited in the Lockboxes, the Collection Accounts and the Cash Collateral
Accounts in accordance with the provisions of this Agreement and the other Loan
Documents and (ii) on deposit in the Disbursement Accounts or other operating or
payroll accounts of the Borrower; provided, that the aggregate amount in the
Disbursement Accounts identified on SCHEDULE 9.04 on an overnight basis shall
not exceed for any consecutive two Business Days, $20,000,000; provided further,
that the aggregate amount in such other disbursement or other accounts
(excluding payroll accounts and bank errors) on an overnight basis shall not
exceed at any time $15,000,000;
(b) Permitted Existing Investments;
(c) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(d) Investments in the form of advances to employees in the
ordinary course of business for moving, relocation and travel expenses; and
other loans to employees for any lawful purpose, provided that (i) each loan
permitted under this CLAUSE (D) shall be evidenced by a promissory note and (ii)
the aggregate principal amount of all such advances and loans at any time
outstanding shall not exceed $1,500,000 and (iii) no such advances or loans
outstanding at any time to any one Person shall exceed $500,000;
(e) (i) Investments by Credit Parties in other Credit Parties;
(ii) Investments by Borrower Subsidiaries that are not Credit Parties in Pledged
Entities or Credit Parties; (iii) Investments by Pledged Entities in other
Pledged Entities; (iv) Investments among Borrower Subsidiaries that are not
Credit Parties or Pledged Entities; or (v) Investments by Credit Parties and
Pledged Entities in Borrower Subsidiaries that are not Credit Parties or Pledged
Entities which, with Indebtedness permitted pursuant to SECTION 9.01(g)(v) and
Accommodation Obligations permitted pursuant to SECTION 9.05(f)(v) but without
duplication, does not exceed $55,000,000;
(f) Investments in connection with the merger with,
consolidation with, or acquisition of all or substantially all of the assets or
Capital Stock of, or any other combination with or acquisition of any other
Person (each a "ACQUISITION") so long as (i) the Administrative Agent has
received at least thirty (30) Business Days' prior written notice of such
Acquisition and, prior to the consummation thereof, has consented in writing to
such Acquisition, (ii) the purchase price payable in cash and non-cash
consideration does not exceed $5,000,000 in any one Acquisition or $15,000,000
in the aggregate in any Fiscal Year, (iii) both before and after giving effect
to such Acquisition, (A) aggregate Availability under the Credit Facilities will
be in excess of $35,000,000, or (B) if the Multicurrency Facility has been
refinanced pursuant to
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SECTION 9.01(m), aggregate Availability under the Domestic
Facility is in excess of $25,000,000 and Cumulative Availability is in excess of
$35,000,000, (iv) no Default or Event of Default has occurred and is continuing
or would result after giving effect to such Acquisition, (v) to the extent
applicable, the requirements of SECTION 9.07 and SECTION 9.09 have been
satisfied, (vi) to the extent any Lien is required pursuant to SECTION 9.07, the
Administrative Agent has been granted such a first priority secured Lien
(subject only to Customary Permitted Liens and Liens permitted pursuant to
SECTION 9.03(i)) in all Property (other than Property excluded from the
definition of Collateral) acquired in such Acquisition, and the Borrowers and
the target of such Acquisition shall have executed all documents and taken all
actions as may be required by the Administrative Agent in connection therewith,
(vii) the board of directors of the target of such Acquisition shall have
approved such Acquisition and such Acquisition shall otherwise be consensual,
(viii) the Indebtedness acquired in connection with such Acquisition, if any, is
otherwise permitted pursuant to SECTION 9.01, and (ix) the Borrowers shall have
delivered all financial reports and other documents requested by the
Administrative Agent in connection with such Acquisition; provided, that any
Inventory or Receivables acquired in connection with such Acquisition shall not
constitute Eligible Inventory or Eligible Receivables until the Administrative
Agent has received an audit satisfactory to the Administrative Agent and has
otherwise approved such Property for inclusion in Eligible Inventory or Eligible
Receivables, as applicable; and
(g) Investments permitted in connection with Accommodation
Obligations permitted under SECTION 9.05(e).
9.05. ACCOMMODATION OBLIGATIONS. No Borrower shall or shall
permit any of its Subsidiaries to directly or indirectly create or become or be
liable with respect to any Accommodation Obligation, except:
(a) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of its business;
(b) Permitted Existing Accommodation Obligations and any
extensions, renewals or replacements thereof, provided that the aggregate
Indebtedness under any such extension, renewal or replacement is not greater
than the Indebtedness under, and shall be on terms no less favorable to the
Borrower or such Subsidiary than the terms of, the Permitted Existing
Accommodation Obligation so extended, renewed or replaced;
(c) Accommodation Obligations (i) arising under the Loan
Documents, (ii) with respect to the Indebtedness permitted under SECTIONS
9.01(d) so long as such Accommodation Obligations are unsecured and the remedies
thereunder only arise after a default has occurred or is continuing under such
related Indebtedness or (iii) otherwise in respect of the Indebtedness permitted
under SECTION 9.01(a), (h), (i), (m) or (q);
(d) Accommodation Obligations of the Domestic Credit Parties
with respect to the Senior Notes;
(e) Accommodation Obligations of the Credit Parties with
respect to Lift Truck Financing Guarantees;
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(f) Accommodation Obligations (i) of Credit Parties with
respect to Indebtedness of Credit Parties; (ii) of Borrower Subsidiaries not
constituting Credit Parties with respect to Indebtedness of Credit Parties or
Pledged Entities; (iii) of Pledged Entities with respect to Indebtedness of
Pledged Entities; (iv) of Borrower Subsidiaries not constituting Credit Parties
with respect to Indebtedness of Borrower Subsidiaries not constituting Credit
Parties; and (v) of Credit Parties with respect to Indebtedness of Borrower
Subsidiaries not constituting Credit Parties in an aggregate amount, together
with Indebtedness permitted pursuant to SECTION 9.01(g)(v) and Investments
permitted pursuant to SECTIONS 9.04(e)(v) but without duplication, not to exceed
$55,000,000; and
(g) in addition to the Accommodation Obligations permitted by
CLAUSES (a) through (f) above, other unsecured Accommodation Obligations in an
aggregate amount not to exceed $15,000,000 at any time outstanding.
9.06. RESTRICTED PAYMENTS.
(a) RESTRICTION ON DIVIDENDS.
(i) From the Closing Date and through December 31, 2002, NMHG
Holding may not make any cash dividend or other distribution, direct or
indirect, on account of any shares of, or interests in, any class of
Capital Stock of NMHG Holding (a "DIVIDEND"); and
(ii) NMHG Holding may not make a Dividend after December 31,
2002, unless (A) the aggregate Dividends made in any Fiscal Year do not
exceed $5,000,000, (B) as of the end of the most recent fiscal quarter,
the Leverage Ratio is less than or equal to 3.0x, (C) after giving
effect to such Dividend, (1) aggregate Availability under the Credit
Facilities exceeds $50,000,000, or (2) if the Multicurrency Facility
has been refinanced pursuant to SECTION 9.01(m), aggregate Availability
under the Domestic Facility is in excess of $35,000,000 and Cumulative
Availability is in excess of $50,000,000, (D) a Default or Event of
Default has not occurred nor is continuing, and after giving effect to
such Dividend, no Default or Event of Default would occur or be
continuing, and (E) no Bankruptcy Event with respect to the Parent has
occurred and is continuing.
(b) OTHER RESTRICTED PAYMENTS. Except as set forth in SECTION
9.06(a) above, no Borrower shall or shall permit any Borrower Subsidiary to
otherwise declare or make any Restricted Payment, except:
(i) regularly scheduled payments of principal and interest by
NMHG Holding on the Senior Notes;
(ii) cash dividends on the Capital Stock of any Borrower to
any other Borrower paid and declared in any Fiscal Year;
(iii) dividends or distributions to the Parent consistent with
past practices (A) to pay franchise taxes and other amounts allocable
to such Borrower or Borrower Subsidiary required by the Parent to
maintain its corporate existence, (B) to pay for all
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operating and overhead expenses of the Parent allocable to such
Borrower or Borrower Subsidiary (including, without limitation,
salaries and other compensation of employees, and directors' fees and
expenses) incurred by the Parent in the ordinary course of its
business, (C) to pay the Parent fees for services provided by the
Parent to such Borrower or Borrower Subsidiary that would otherwise
have been performed by third parties and (D) to reimburse the Parent
for the payment of amounts relating to travel and entertainment
expenses and legal, consulting, software, accounting and other similar
services provided by third parties on any Borrower or Borrower
Subsidiary's behalf; provided, however, that such aggregate dividends
or other distributions by all Borrowers and Borrower Subsidiaries
pursuant to CLAUSE (B) of this SECTION 9.06(b)(iii) shall not exceed in
any Fiscal Year an aggregate of $3,000,000;
(iv) payments or repayments of advances to the Parent pursuant
to the Tax Sharing Agreement to the extent consistent with past
practices;
(v) cash dividends (or other distributions) paid solely to a
Borrower or Borrower Subsidiary by any of such Person's Subsidiaries;
(vi) payments of intercompany Indebtedness (A) by any Borrower
Subsidiary (other than a Borrower) to any Credit Party, (B) by any
Borrower Subsidiary (other than a Credit Party) to any other Borrower
Subsidiary, and (C) by any Credit Party to any Borrower Subsidiary, in
each case, to the extent such Indebtedness is permitted by SECTION
9.01(g) and 9.01(O); and
(vii) payments of Indebtedness permitted by SECTION 9.01(p);
provided, however, that the Restricted Payments described in CLAUSES (iii)(b),
(vi)(c) and (vii) above shall not be permitted if either (A) a Default or an
Event of Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom or (B) such Restricted
Payment is prohibited under the terms of any Indebtedness or Capital Stock of
any Borrower or Borrower Subsidiary; provided, further, however, that the
Restricted Payments described in CLAUSE (vii) above shall not be subject to the
limitations set forth in this paragraph following the refinancing of the
Multicurrency Facility in accordance with SECTION 9.01(m).
9.07. CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS.
(a) No Borrower shall, or shall permit any Borrower Subsidiary
to, engage in any business other than the businesses engaged in by it on the
date hereof and any business or activities which are substantially similar,
related or incidental thereto.
(b) No Borrower shall, or shall permit any Borrower Subsidiary
to, create, capitalize or acquire any Subsidiary after the date hereof except
with the prior written consent of the Administrative Agent and so long as:
(i) with respect to any Domestic Subsidiary created,
capitalized or acquired after the Closing Date, (A) the Capital Stock
of such Subsidiary has been pledged to the Administrative Agent as
security for the Obligations pursuant a Pledge Agreement, (B)
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such Subsidiary has guaranteed the Obligations pursuant to a
Multicurrency Borrower Guaranty and a Domestic Borrower Guaranty, and
(C) such Subsidiary has granted to the Administrative Agent as security
for the Obligations a security interest in all of its assets pursuant
to a Domestic Security Agreement (and a Trademark Security Agreement,
if applicable);
(ii) with respect to any first tier Foreign Subsidiary of any
Domestic Borrower created, capitalized or acquired after the Closing
Date, (A) sixty-five percent (65.0%) of the Capital Stock of such
Subsidiary has been pledged to the Administrative Agent as security for
the Obligations pursuant to a Pledge Agreement and (B) and if such
Subsidiary owns directly, or indirectly, Capital Stock of a
Multicurrency Borrower, (1) such Subsidiary has granted to the
Administrative Agent as security for the Multicurrency Obligations a
security interest in all of its assets pursuant to a Foreign Security
Agreement, (2) such Subsidiary has guaranteed the Multicurrency
Obligations pursuant to a Foreign Guaranty and (3) such Subsidiary has
pledged the Capital Stock of each of its Foreign Subsidiaries as
security for the Multicurrency Obligations pursuant to a Pledge
Agreement; provided, however, that until the earlier of (x) the
consummation of the Australian Reorganization and (y) July 31, 2002
(which date, in the sole discretion of the Administrative may be
extended to September 30, 2002) the Australian Subsidiaries shall not
be subject to this CLAUSE (iii);
(iii) with respect to any Subsidiary of any Foreign Credit
Party created, capitalized or acquired after the Closing Date, (A) the
Capital Stock of such Subsidiary has been pledged to the Administrative
Agent as security for the Multicurrency Obligations pursuant to a
Pledge Agreement, (B) such Subsidiary has guaranteed the Multicurrency
Obligations pursuant to a Foreign Guaranty, and (C) such Subsidiary has
granted to the Administrative Agent as security for the Multicurrency
Obligations a security interest in all of its assets pursuant to a
Foreign Security Agreement (and a Trademark Security Agreement, if
applicable) and (D) such Subsidiary has pledged the Capital Stock of
each of its Foreign Subsidiaries as security for the Multicurrency
Obligations, except that if the total assets of such Subsidiary do not
exceed $5,000,000, the foregoing CLAUSE (III) shall not apply until
such time as such Subsidiary's total assets are in excess of such
amount; and
(iv) with respect to an Acquisition, such Acquisition is
otherwise permitted pursuant to SECTION 9.04(f).
(c) No Borrower shall permit any Domestic Subsidiary, first
tier Foreign Subsidiary of a Domestic Borrower, or Subsidiary of a Foreign
Credit Party to have total assets in excess of $5,000,000 unless (i) all of (or
if subject to the following paragraph, sixty-five percent (65.0%) of) the
Capital Stock of such Subsidiary has been pledged to the Administrative Agent as
security for the Obligations (or, with respect to a Subsidiary of a
Multicurrency Borrower, for the Multicurrency Obligations only) pursuant to a
Pledge Agreement, (ii) with respect to any Domestic Subsidiary, such Subsidiary
has guaranteed the Obligations pursuant to a Multicurrency Borrower Guaranty and
a Domestic Borrower Guaranty and has granted to the Administrative Agent as
security for the Obligations a security interest in all of its assets pursuant
to a Domestic Security Agreement (and a Trademark Security Agreement, if
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applicable), and (iii) with respect to any Subsidiary of a Foreign Credit Party,
such Subsidiary has guaranteed the Multicurrency Obligations pursuant to a
Foreign Guaranty and has granted to the Administrative Agent as security for the
Obligations a security interest in all of its assets pursuant to a Foreign
Security Agreement (and a Trademark Security Agreement, if applicable).
Notwithstanding anything to the contrary in the foregoing paragraphs (b) and
(c), if any Borrower Subsidiary is a controlled foreign corporation within the
meaning of United States Treasury Regulations Section 1.956-2(c)(1), then no
more than 65.0% of the Capital Stock of such Subsidiary shall be required to be
pledged to the Administrative Agent as security for the Domestic Obligations.
9.08. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No
Borrower shall, or shall permit any Borrower Subsidiary to, directly or
indirectly enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder or holders of more than five percent
(5%) of any class of equity Securities of any Borrower, or with any other
Affiliate of any Borrower which is not its Subsidiary:
(a) on terms that are less favorable to such Borrower or such
Borrower Subsidiary, as applicable, than those that might be obtained in an
arm's length transaction at the time from Persons who are not such a holder or
Affiliate;
(b) if such Affiliate transaction involves an amount in excess
of $10,000,000, unless the terms of which are set forth in writing and a
majority of the members of such Borrower or Borrower Subsidiary's board of
directors disinterested with respect to such Affiliate transaction have
determined in good faith that the criteria set forth in CLAUSE (a) are satisfied
and have approved the relevant Affiliate transaction as evidenced by a
resolution of such board of directors; provided, that for purposes of this
paragraph only, in the event of any Affiliate transaction involving the Parent,
those members of the board of directors of the applicable Borrower or Borrower
Subsidiary who are not Permitted Holders and are members of the board of
directors of the Parent shall be deemed disinterested; or
(c) if such Affiliate transaction involves an amount in excess
of (i) $10,000,000 in the case of any Affiliate transaction between the Parent,
on the one hand, and any Borrower or any Borrower Subsidiary, on the other hand,
or (ii) $20,000,000 in the case of any other Affiliate transaction, unless the
board of directors of the applicable Borrower or Borrower Subsidiary shall also
have received a written opinion from an Independent Qualified Party to the
effect that such Affiliate transaction is fair, from a financial standpoint, to
NMHG Holding and its Subsidiaries and the applicable Borrower or Borrower
Subsidiary or not less favorable to NMHG Holding and its Subsidiaries and the
applicable Borrower or Borrower Subsidiary than could reasonably be expected to
be obtained at the time in an arm's-length transaction with a Person who was not
an Affiliate.
Nothing contained in this SECTION 9.08 shall prohibit (w) any transaction
expressly permitted by SECTIONS 9.01, 9.02, 9.04, 9.05 and 9.06; (x) increases
in compensation and benefits for officers and employees of any Borrower or any
Borrower Subsidiary which are customary in the industry or consistent with the
past business practice of such Borrower or such Subsidiary, provided that
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no Event of Default or Default has occurred and is continuing; (y) payment of
customary directors' fees and indemnities; or (z) performance of any obligations
arising under the Loan Documents.
9.09. RESTRICTION ON FUNDAMENTAL CHANGES. No Borrower shall,
or shall permit any Borrower Subsidiary to, enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of such Person's
business or Property, whether now or hereafter acquired, except:
(a) in connection with transactions permitted under SECTION
9.02;
(b) for a merger of (i) a Domestic Credit Party into a
Domestic Borrower or a Foreign Credit Party into a Multicurrency Borrower, (ii)
a Guarantor into another Guarantor, or (iii) any other Borrower Subsidiary into
another Borrower Subsidiary, provided that if the non-surviving entity was a
Pledged Entity, the Capital Stock of such surviving entity shall be pledged to
the Administrative Agent in accordance with SECTION 9.07 as if such surviving
entity is a newly acquired entity; provided that the documents governing such
merger are satisfactory to the Administrative Agent; and
(c) in connection with the Australian Reorganization, provided
that the Capital Stock of each first tier Subsidiary of a Domestic Borrower in
existence upon consummation thereof (whether previously existing, newly formed
or as the surviving entity of a merger), shall be pledged to the Administrative
Agent in accordance with SECTION 9.07 as if such surviving Australian Subsidiary
is a newly acquired entity.
9.10. SALE AND LEASEBACK TRANSACTIONS; OPERATING LEASES.
(a) Except with respect to the Property identified on SCHEDULE
9.10 attached hereto, no Borrower shall, or shall permit any Borrower Subsidiary
to, become liable, directly, by assumption or by Accommodation Obligation, with
respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed) which it or any of its Subsidiaries
(i) sold or transferred or is to sell or transfer to any other Person, or (ii)
intends to use for substantially the same purposes as any other Property which
has been or is to be sold or transferred by it or one of its Subsidiaries to any
other Person, in either instance, in connection with such lease.
(b) None of the Borrowers or the Borrower Subsidiaries shall
become liable in any way, whether directly or by assignment or by Accommodation
Obligation, for the obligations of a lessee under any Operating Lease unless (i)
such Operating Lease is entered into pursuant to a Lease Finance Transaction;
(ii) such Operating Lease is with respect to rental equipment, whether or not
reflected on the balance sheet of the applicable Borrower or Borrower Subsidiary
as Inventory (a "RENTAL EQUIPMENT OPERATING LEASE") and, immediately after
giving effect to the incurrence of liability with respect to such Rental
Equipment Operating Lease, either (A) aggregate Availability under the Credit
Facilities is equal to or greater than $40,000,000 and the Impairment Adjustment
with respect to all Rental Equipment Operating Leases for the immediately
preceding fiscal quarter is less than $2,000,000, or (B) aggregate
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Availability under the Credit Facilities is less than $40,000,000 and the
Impairment Adjustment with respect to all Rental Equipment Operating Leases for
the immediately preceding fiscal quarter is less than $1,000,000; or (iii) such
Operating Lease is with respect to Property not constituting Collateral (a
"NON-COLLATERAL OPERATING LEASE"), and, immediately after giving effect to the
incurrence of liability with respect to such Non-Collateral Operating Lease, the
aggregate amount of all rents (whether paid or accrued (without duplication)) in
any Fiscal Year under such Non-Collateral Operating Leases of the Borrowers and
the Borrower Subsidiaries in any Fiscal Year (determined in conformity with
GAAP) is not in excess of $25,000,000.
9.11. MARGIN REGULATIONS; SECURITIES LAWS. No Borrower shall,
or shall permit any Borrower Subsidiary to, use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry Margin Stock or
to violate the Securities Exchange Act or the Securities Act, provided, however,
that proceeds of any credit extended hereunder that are distributed to Parent in
accordance with SECTION 9.06 may be used by the Parent to purchase and retire
its own Capital Stock; provided, further, however, that neither the Borrower nor
any Borrower Subsidiary shall at any time own any Margin Stock.
9.12. ERISA. No Borrower shall, or shall permit any Borrower
Subsidiary to:
(a) engage, or permit any of its Subsidiaries to engage, in
any prohibited transaction described in Sections 406 of ERISA or 4975 of the
Internal Revenue Code for which a statutory or class exemption is not available
or a private exemption has not been previously obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code), with
respect to any Benefit Plan, whether or not waived;
(c) fail, or permit any ERISA Affiliate who is a Borrower or a
Borrower Subsidiary to fail, to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate, or permit any ERISA Affiliate who is a Borrower
or Borrower Subsidiary to terminate, any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(f) fail, or permit any ERISA Affiliate who is a Borrower or
Borrower Subsidiary to fail, to pay any required installment or any other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment;
(g) amend, or permit any ERISA Affiliate who is a Borrower or
a Borrower Subsidiary to amend, a Benefit Plan resulting in an increase in
current liability for the plan year
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such that the Borrower or any ERISA Affiliate is required to provide security to
such Plan under Section 401(a)(29) of the Internal Revenue Code;
(h) permit any further unfunded liabilities with respect to
any Foreign Pension Plan which would trigger a requirement to make a material
increase in contributions to fund any such liabilities; or
(i) fail, or permit any of its Subsidiaries to fail, to pay
any required contributions or payments to a Foreign Pension Plan on or before
the due date for such required installment or payment.
9.13. CONSTITUENT DOCUMENTS. Other than in connection with a
transaction permitted pursuant to SECTION 9.09, (a) no Borrower shall, or shall
permit any Credit Party or Pledged Entity to, amend, modify or otherwise change
any of the terms or provisions in any of their respective Constituent Documents
as in effect on the Closing Date, except that any Credit Party may change its
name in accordance with the applicable Domestic Security Agreement or Foreign
Security Agreement, and (b) no Borrower shall permit any Borrower Subsidiary
that is not a Credit Party or Pledged Entity to amend, modify or otherwise
change in any material respect any of the terms or provisions in any of their
respective Constituent Documents as in effect on the Closing Date.
9.14. FISCAL YEAR. No Borrower or Borrower Subsidiary shall
change its Fiscal Year for accounting or tax purposes from a period consisting
of the 12-month period ending on December 31 of each calendar year.
9.15. CANCELLATION OF DEBT; PREPAYMENT OF INDEBTEDNESS;
CERTAIN AMENDMENTS. No Borrower shall, or shall permit any Borrower Subsidiary
to, (i) cancel any material claim or debt or amend or modify the terms thereof,
except in the ordinary course of its business or pursuant to the exercise of
reasonable business judgment; (ii) except for regularly scheduled payments as
expressly permitted pursuant to the terms of the Loan Documents, prepay, redeem,
purchase, repurchase, defease or retire any Indebtedness or the Senior Notes;
(iii) terminate, amend, supplement or otherwise modify the terms of the Senior
Notes or the Senior Note Indenture; or (iv) permit the Constituent Documents of
any Borrower Subsidiary which is a limited liability company, or any document or
instrument evidencing a membership interest in such limited liability company,
to provide that membership interests in such Subsidiary are securities governed
by Article 8 of the Uniform Commercial Code as in effect in any applicable
jurisdiction.
9.16. ENVIRONMENTAL MATTERS. Neither NMHG Holding, nor NMHG,
nor any of NMHG's Subsidiaries shall become subject to any Liabilities and Costs
which would have a Material Adverse Effect and which arise out of or relate to
(a) exposure to or the Release or threatened Release to, from or at any location
of any Contaminant, or any Remedial Action in response thereto, or (b) any
violation of any Environmental, Health and Safety Requirements of Law.
9.17. CASH MANAGEMENT. No Borrower shall, or shall permit any
Borrower Subsidiary to, (a) open any deposit or payroll account or securities
account except in accordance
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with SECTION 3.06 or (b) authorize or direct any Person to take any action with
respect to amounts deposited in the Lockboxes, the Collection Accounts, the Cash
Collateral Accounts, or the Domestic Concentration Account in contravention of
the provisions hereof.
9.18. NO RESTRICTIONS ON SUBSIDIARY DIVIDENDS. Except to the
extent that any such agreement may be contained in the Loan Documents or the
Senior Notes, no Borrower will agree, or permit any Borrower Subsidiary to
agree, to create or otherwise permit to exist any consensual encumbrance or
restriction of any kind on the ability of any Borrower Subsidiary to pay
dividends or make any other distribution or transfer of funds or assets or make
loans or advances to or other Investments in, or pay any Indebtedness owing to,
any Borrower or any other Borrower Subsidiary.
ARTICLE X
FINANCIAL COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitment is outstanding and thereafter until Payment In Full of all of the
Obligations, unless the Requisite Lenders (or, with respect to SECTION 10.01,
all Lenders) shall otherwise give prior written consent thereto:
10.01. EXCESS AVAILABILITY. The Borrowers shall at all times
maintain aggregate Availability of $15,000,000 under the Credit Facilities.
10.02. MAXIMUM LEVERAGE RATIO. NMHG Holding and its
Subsidiaries shall maintain a Leverage Ratio, as determined as of the last day
of each fiscal quarter of NMHG Holding set forth below, of not more than the
ratio set forth below opposite such periods:
Period Ratio
------ -----
June 30, 2002 6.60x
September 30, 2002 6.25x
December 31, 2002 5.25x
March 31, 2003 4.25x
June 30, 2003 3.50x
September 30, 2003 3.50x
December 31, 2003 3.50x
March 31, 2004 and every
fiscal quarter thereafter 3.25x
10.03. MINIMUM FIXED CHARGE COVERAGE RATIO. NMHG Holding and
its Subsidiaries shall maintain a Fixed Charge Coverage Ratio on a consolidated
basis, as of the last
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day of each fiscal quarter set forth below for the four-fiscal-quarter period
then ending (or (i) with respect to the fiscal quarter ending on June 30, 2002,
for the two-fiscal-quarter period then ending or (ii) with respect to the fiscal
quarter ending on September 30, 2002, for the three-fiscal-quarter period then
ending) of at least the ratio set forth below opposite such determination date:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 2002 0.50x
September 30, 2002 0.50x
December 31, 2002 0.65x
March 31, 2003 0.70x
June 30, 2003 0.80x
September 30, 2003 1.00x
December 31, 2003 1.10x
March 31, 2004 1.20x
June 30, 2004 1.30x
September 30, 2004 1.40x
December 31, 2004 and every
fiscal quarter thereafter 1.50x
10.04. MAXIMUM CAPITAL EXPENDITURES. Capital Expenditures made
or incurred by NMHG and its Subsidiaries on a consolidated basis shall not
exceed the amounts set forth below during the Fiscal Years set forth below (or
such portion thereof) opposite such amounts; provided, that fifty percent
(50.0%) of the excess of the maximum specified above for such Fiscal Year over
the Capital Expenditures made in such Fiscal Year may be carried over to the
next succeeding Fiscal Year (such carry-over amount being available only for use
in such succeeding Fiscal Year (or portion thereof) and being treated as the
first amount spent in such succeeding Fiscal Year, in each case for purposes of
applying this PROVISO to such Fiscal Year).
Period Capital Expenditures
------ --------------------
FYE December 31, 2002 $30,000,000
FYE December 31, 2003 $65,000,000
FYE December 31, 2004 $80,000,000
Through June 30, 2005 $80,000,000
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ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. EVENTS OF DEFAULT. Each of the following occurrences
shall constitute an Event of Default hereunder:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Any Borrower shall fail
to pay when due any of the Obligations.
(b) BREACH OF CERTAIN COVENANTS. Any Borrower shall fail to
perform or observe duly and punctually any agreement, covenant or obligation
binding on such Person under (i) SECTION 7.02, 7.03, 7.07, 7.11 (solely with
respect to notices of defaults and nonpayments required pursuant to such
section), 8.01, 8.02, 8.03, 8.04, 8.05 (solely with respect to the failure to
pay insurance premiums which has the effect of terminating any insurance policy
required to be maintained pursuant to such section), 8.06 or 8.12 or (ii)
ARTICLE IX or ARTICLE X.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation
or warranty made or deemed made by any Borrower or any Borrower Subsidiary to
the Administrative Agent, any Lender or Issuing Bank herein or in any other Loan
Document or in any certificate at any time given by any such Person pursuant to
any Loan Document shall be false or misleading in any material respect on the
date made (or deemed made).
(d) OTHER DEFAULTS. Other than as covered by PARAGRAPHS (a),
(b) or (c) of this SECTION 11.01, any Borrower or any Borrower Subsidiary (where
applicable) shall fail to perform or observe duly and punctually any agreement,
covenant or obligation binding on such Person under (i) SECTION 7.05 and such
default shall continue for two (2) Business Days after the occurrence thereof,
(ii) SECTION 7.06, 7.08 or 8.13(b), and such default shall continue for five (5)
Business Days after the occurrence thereof, (iii) SECTION 7.01, 7.04, 7.09,
7.11, 8.05, 8.07, 8.08, 8.09, 8.10 or 8.13(a), and such default shall continue
for ten (10) Business Days after the occurrence thereof, (iv) SECTION 7.10,
7.12, 7.13, or the non-monetary provisions of the Letter Agreement, and such
default shall continue for fifteen (15) Business Days after the occurrence
thereof, or (v) any other term contained herein (other than under SECTION 8.11)
or in any other Loan Document, and such default shall continue for thirty (30)
calendar days.
(e) DEFAULT AS TO OTHER INDEBTEDNESS. Any Borrower or Borrower
Subsidiary shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) after any
grace period applicable thereto with respect to the Senior Notes, or any other
Indebtedness (other than an Obligation) in excess of $2,500,000 and, if (i)
aggregate Availability under the Credit Facilities is greater than $30,000,000
or (ii) the Multicurrency Facility has been refinanced pursuant to SECTION
9.01(m), and aggregate Availability under the Domestic Facility is in excess of
$25,000,000 and Cumulative Availability is in excess of $30,000,000, such
default shall continue for three Business Days; or any breach, default or event
of default shall occur, or any other condition shall exist under any instrument,
agreement or indenture pertaining to any such, if the effect thereof is (or,
with the giving of notice or lapse of time or both, would be) to cause an
acceleration, mandatory redemption or other required repurchase of any such
Indebtedness, or permit the holders of any such Indebtedness to accelerate the
maturity of such Indebtedness or require the redemption or other
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repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by any Borrower or any Borrower
Subsidiary (other than by a regularly scheduled required prepayment, mandatory
redemption or required repurchase) prior to the stated maturity thereof.
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case, proceeding or other action shall be
commenced against any Borrower or any Borrower Subsidiary under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have any order for relief entered with respect to
it, or seeking to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, wind-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or seeking appointment of a receiver, administrative receiver,
trustee, receiver-manager, liquidator, sequestrator, administrator,
custodian or similar official for it or for all or any substantial part
of its assets, which case, proceeding or other action results in entry
of an order for relief or any such adjudication or appointment or
remains undismissed, undischarged or unbonded for period of thirty (30)
days; or a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Borrower or any Borrower
Subsidiary in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal,
state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, receiver-manager,
liquidator, administrative receiver, sequestrator, trustee, custodian
or other officer having similar powers over any Borrower or any
Borrower Subsidiary or over all or a substantial part of the Property
of any Borrower or any Borrower Subsidiary shall be entered; or an
interim receiver, trustee or other custodian of any Borrower or any
Borrower Subsidiary or of all or a substantial part of the property of
any Borrower or any Borrower Subsidiary shall be appointed or a warrant
of attachment, execution or similar process against any substantial
part of the Property of any Borrower or any Borrower Subsidiary shall
be issued and any such event shall not be stayed, dismissed, bonded or
discharged within thirty (30) days after entry, appointment or
issuance.
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. Any
Borrower or any Borrower Subsidiary shall (i) commence any voluntary case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have any order for relief
entered with respect to it, or seeking to adjudicate it as bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, receiver-manager,
administrative receiver, liquidator, sequestrator, administrator, custodian or
similar official for it or for all or any substantial part of its assets or (ii)
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, (iii)
consent to the appointment of or taking possession by a receiver,
receiver-manager,
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liquidator, sequestrator, trustee or other custodian or other officer for all or
a substantial part of its property, (iv) generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make any general assignment for the benefit of creditors or
shall otherwise become insolvent under any relevant law, (v) take any other
action to authorize any of the actions set forth in this paragraph (g), or (vi)
any petition is presented by any Person for the appointment of an administrator
of any Borrower or any Borrower Subsidiary.
(h) JUDGMENTS AND ATTACHMENTS.
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage),
writ or warrant of attachment, distress or similar process against any
Borrower or any Borrower Subsidiary or any of their respective assets
involving in any case an amount in excess of $2,000,000 is entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period
of thirty (30) days or in any event later than five (5) days prior to
the date of any proposed sale thereunder; provided, however, if any
such judgment, writ or warrant of attachment or similar process is in
excess of $5,000,000, the entry thereof shall immediately constitute an
Event of Default hereunder.
(ii) A federal tax Lien is filed against any Borrower, any
Borrower Subsidiary or any Property of any Borrower or any Borrower
Subsidiary which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Administrative Agent within forty
(40) days after the filing thereof or the date upon which the
Administrative Agent receives actual knowledge of the filing thereof
for an amount which equals or exceeds $2,000,000.
(iii) An Environmental Lien is filed against any Property of
any Borrower or any Borrower Subsidiary with respect to Claims in an
amount which equals or exceeds $2,000,000.
(i) DISSOLUTION. Any order, judgment or decree shall be
entered against any Borrower or any Borrower Subsidiary, decreeing its
involuntary dissolution, split up or other similar proceeding, and such order
shall remain undischarged and unstayed for a period in excess of thirty (30)
days; or any Borrower or any Borrower Subsidiary shall otherwise dissolve or
cease to exist except as specifically permitted hereby; or any corporate action
or other steps shall be taken to wind-up, liquidate or dissolve NACCO Materials
Handling S.R.L.
(j) LOAN DOCUMENTS; FAILURE OF SECURITY. At any time, for any
reason, (i) any Loan Document ceases to be in full force and effect (except in
accordance with its terms) or any Borrower or any Borrower Subsidiary party
thereto seeks to repudiate its obligations thereunder and the Liens intended to
be created thereby are, or any Borrower or any Borrower Subsidiary seeks to
render such Liens, invalid or unperfected, or (ii) Liens in favor of the
Administrative Agent, the Issuing Bank and/or the Lenders contemplated by the
Loan Documents shall, at any time, for any reason, be invalidated or otherwise
cease to be in full force and effect, or such Liens shall be subordinated or
shall not have the priority contemplated hereby or by the other Loan Documents.
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(k) TERMINATION EVENT. Any Termination Event occurs which the
Administrative Agent reasonably believes could subject any Borrower or any ERISA
Affiliate to a liability in excess of $2,000,000.
(l) WAIVER OF MINIMUM FUNDING STANDARD. If the plan
administrator of any Plan applies under Section 412(d) of the Internal Revenue
Code for a waiver of the minimum funding standards of Section 412(a) of the
Internal Revenue Code and the Administrative Agent believes that the substantial
business hardship upon which the application for the waiver is based could
subject any Borrower or any ERISA Affiliate to liability in excess of
$2,000,000.
(m) MATERIAL ADVERSE CHANGE. An event shall exist or occur
which has a Material Adverse Effect.
(n) CHANGE OF CONTROL. A Change of Control shall have
occurred.
(o) AUSTRALIAN CREDIT FACILITY SUBLIMIT. The outstanding
obligations of any Borrower or Borrower Subsidiary under the Australian Credit
Facility shall exceed the Australian Credit Facility Sublimit for more than
three Business Days after the Administrative Agent sends notice thereof to any
Borrower or Borrower Subsidiary or any Borrower or Borrower Subsidiary otherwise
has Knowledge thereof.
(p) HITFL CONTRACT. If the closing condition pursuant to
SECTION 5.01(n) shall have been satisfied pursuant to CLAUSE (iii) of such
SECTION, the Borrower shall incur any obligations under the HITFL Contract
unless prior to such incurrence, the conditions pursuant to SECTIONS 5.01(n)(i)
or (ii) have been satisfied.
An Event of Default shall be deemed "continuing" until cured or waived in
accordance with SECTION 14.07.
11.02. RIGHTS AND REMEDIES.
(a) ACCELERATION AND TERMINATION. Upon the occurrence of any
Event of Default described in Sections 11.01(f) or 11.01(g), the Commitments
shall automatically and immediately terminate and the unpaid principal amount
of, and any and all accrued interest on, the Obligations and all accrued fees
shall automatically become immediately due and payable, without presentment,
demand, or protest or other requirements of any kind (including, without
limitation, valuation and appraisement, diligence, presentment, notice of intent
to demand or accelerate and of acceleration), all of which are hereby expressly
waived by the Borrowers; and upon the occurrence and during the continuance of
any other Event of Default, the Administrative Agent shall at the request, or
may with the consent, of the Requisite Lenders, by written notice to the
Borrowers, (i) declare that all or any portion of the Commitments are
terminated, whereupon the Commitments and the obligation of each Lender to make
any Loan hereunder and of each Lender or Issuing Bank to Issue or participate in
any Letter of Credit not then Issued shall immediately terminate, and/or (ii)
declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Obligations to be, and the same shall thereupon be, immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment,
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notice of intent to demand or accelerate and of acceleration), all of which are
hereby expressly waived by the Borrowers.
(b) DEPOSIT FOR LETTERS OF CREDIT. In addition, after the
occurrence and during the continuance of an Event of Default, (i) with respect
to Letter of Credit Obligations under the Domestic Facility, the Domestic
Borrowers jointly and severally agree, and (ii) with respect to Letter of Credit
Obligations under the Multicurrency Facility, the Multicurrency Borrowers
jointly and severally agree, promptly upon demand by the Administrative Agent
(given upon the written instructions of the Requisite Lenders or, in the absence
of such instructions, in its sole discretion), to deliver to the Administrative
Agent, Cash Collateral in such form as requested by the Administrative Agent for
deposit in the applicable Cash Collateral Account, together with such
endorsements, and execution and delivery of such documents and instruments as
the Administrative Agent may reasonably request in order to perfect or protect
the Administrative Agent's Lien with respect thereto, in an aggregate principal
amount equal to 105% of the then outstanding Letter of Credit Obligations under
the applicable Letter of Credit Facility.
(c) RESCISSION. If at any time after termination of the
Commitments and/or acceleration of the maturity of the Loans, the Borrowers
shall pay all arrears of interest and all payments on account of principal of
the Loans and Reimbursement Obligations under the applicable Credit Facility
which shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the rates
specified herein) and all Events of Default and Defaults (other than nonpayment
of principal of and accrued interest on the Loans due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to SECTION 14.07,
then upon the written consent of the Requisite Lenders and written notice to the
Borrowers, the termination of the Commitments and/or the acceleration and the
consequences of such termination and/or acceleration may be rescinded and
annulled; but such action shall not affect any subsequent Event of Default or
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders and the Issuing Bank
to a decision which may be made at the election of the Requisite Lenders; they
are not intended to benefit the Borrowers and do not give any Borrower the right
to require the Lenders to rescind or annul any termination of the aforesaid
obligations of the Lenders or the Issuing Bank or any termination of the
aforesaid obligations of the Lenders or the Issuing Bank or any acceleration
hereunder, even if the conditions set forth herein are met.
(d) ENFORCEMENT. The Borrowers acknowledge that in the event
any Borrower or any Borrower Subsidiary fails to perform, observe or discharge
any of its respective obligations or liabilities hereunder or under any other
Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent, the Issuing Bank and the Lenders; therefore, each Borrower
agrees that the Administrative Agent, the Issuing Bank and the Lenders shall be
entitled after the occurrence and during the continuance of an Event of Default
to temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages.
11.03. CASH COLLATERAL. The Administrative Agent may, at any
time after an Event of Default has occurred and is continuing, and otherwise
consistent with the Uniform Commercial Code (or any applicable Requirements of
Law in any other relevant jurisdiction),
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sell or cause to be sold any Cash Equivalents being held by the Administrative
Agent as Cash Collateral (in any Cash Collateral Account, or otherwise) at any
broker's board or at public or private sale, in one or more sales or lots, at
such price as the Administrative Agent may deem best, without assumption of any
credit risk, and the purchaser of any or all such Cash Equivalents so sold shall
thereafter own the same, absolutely free from any claim, encumbrance or right of
any kind whatsoever. The Administrative Agent, any of the Lenders and the
Issuing Bank may, in its own name or in the name of a designee or nominee, buy
such Cash Equivalents at any public sale and, if permitted by applicable law,
buy such Cash Equivalents at any private sale. The Administrative Agent shall
apply the proceeds of any such sale, net of any expenses incurred in connection
therewith, and any other funds deposited in (x) the Domestic Cash Collateral
Accounts, to the payment of the Domestic Obligations in accordance with this
Agreement and (y) the Multicurrency Cash Collateral Account to the payment of
the Multicurrency Obligations in accordance with this Agreement. Each Borrower
agrees that (a) each sale of Cash Equivalents shall be conducted in conformity
with reasonable commercial practices of banks, commercial finance companies,
insurance companies or other financial institutions disposing of property
similar to such Cash Equivalents and shall be deemed to be commercially
reasonable and (b) any requirement of reasonable notice shall be met if such
notice is received by NMHG at its notice address on the signature pages hereto
at least ten (10) Business Days before the time of the sale or disposition. Any
other requirement of notice, demand or advertisement for sale is waived to the
extent permitted by law. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
11.04. LICENSE FOR USE OF SOFTWARE AND OTHER INTELLECTUAL
PROPERTY. Unless expressly prohibited by the licensor thereof, if any, the
Administrative Agent is hereby granted a license to use, without charge, the
computer programs, software, printouts and other computer materials, technical
knowledge or processes, data bases, materials, trademarks, registered
trademarks, trademark applications, service marks, registered service marks,
service ▇▇▇▇ applications, patents, patent applications, trade names, industrial
designs, rights of use of any name, labels, fictitious names, inventions,
designs, trade secrets, goodwill, registrations, copyrights, copyright
applications, Permits, licenses, franchises, customer lists, credit files,
correspondence, and advertising materials or any Property of a similar nature of
any Credit Party or Borrower Subsidiary, in each case, as it pertains to the
Collateral owned by such Person, or any rights to any of the foregoing, in
completing production of, advertising for sale, and selling any of such
Collateral, and such Person's rights under all licenses and franchise agreements
shall inure to the benefit of the Administrative Agent. The Administrative Agent
agrees not to use any such license prior to the occurrence of an Event of
Default without giving prior notice to the applicable Credit Party or Subsidiary
thereof.
ARTICLE XII
THE ADMINISTRATIVE AGENT
12.01. APPOINTMENT.
(a) Each Domestic Lender, Issuing Bank, and Multicurrency
Lender hereby designates and appoints CNAI as the Administrative Agent hereunder
(and as security trustee or security agent under each Foreign Security
Agreement, in each case on and subject to the terms
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thereunder), and each such Person hereby irrevocably authorizes the
Administrative Agent to execute such documents (including, without limitation,
the Loan Documents to which the Administrative Agent is a party) and to take
such other action on such Person's behalf under the provisions hereof and of the
other Loan Documents and to exercise such powers as are set forth herein or
therein together with such other powers as are reasonably incidental thereto. As
to any matters not expressly provided for hereby (including, without limitation,
enforcement or collection of the Notes or any amount payable under any provision
of ARTICLE III when due) or the other Loan Documents, the Administrative Agent
shall not be required to exercise any discretion or take any action.
Notwithstanding the foregoing, the Administrative Agent shall be required to act
or refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (or, where required
by the express terms hereof, a different proportion of the Lenders) and such
instructions shall be binding upon all Lenders, Issuing Bank and Holders;
provided, however, the Administrative Agent shall not be required to take any
action which (i) the Administrative Agent reasonably believes shall expose it to
personal liability unless the Administrative Agent receives an indemnification
satisfactory to it from the Lenders with respect to such action or (ii) is
contrary hereto, to the other Loan Documents or applicable law. The
Administrative Agent agrees to act as such on the express conditions contained
in this ARTICLE XII.
(b) The provisions of this ARTICLE XII are solely for the
benefit of the Administrative Agent, the Lenders and Issuing Bank, and no
Borrower nor any Affiliate of any Borrower shall have any rights to rely on or
enforce any of the provisions hereof (other than as expressly set forth in
SECTIONS 12.07 and 12.09). In performing its functions and duties hereunder, the
Administrative Agent shall act solely as agent of the Lenders and the Issuing
Bank and does not assume and shall not be deemed to have assumed any obligation
or relationship of agency, trustee or fiduciary with or for any Borrower or any
Affiliate of any Borrower. The Administrative Agent may perform any of its
duties hereunder, or under the Loan Documents, by or through its respective
agents or employees.
12.02. NATURE OF DUTIES. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth herein or
in the Loan Documents. The duties of the Administrative Agent shall be
mechanical and administrative in nature. The Administrative Agent shall not have
by reason hereof a fiduciary relationship in respect of any Holder. Nothing
herein or in any of the Loan Documents, expressed or implied, is intended to or
shall be construed to impose upon the Administrative Agent any obligations in
respect hereof or any of the Loan Documents except as expressly set forth herein
or therein. Each Lender and each Issuing Bank shall make its own independent
investigation of the financial condition and affairs of the Borrowers and their
Subsidiaries in connection with the making and the continuance of the Loans
hereunder and with the issuance of the Letters of Credit and shall make its own
appraisal of the creditworthiness of the Borrowers and their Subsidiaries
initially and on a continuing basis, and the Administrative Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to
provide any Holder with any credit or other information with respect thereto
(except for reports required to be delivered by the Administrative Agent under
the terms hereof). If the Administrative Agent seeks the consent or approval of
any of the Lenders to the taking or refraining from taking of any action
hereunder, the Administrative Agent shall send notice thereof to each Lender.
The Administrative Agent shall promptly notify each Lender
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at any time that the Lenders so required hereunder have instructed the
Administrative Agent to act or refrain from acting pursuant hereto.
12.03. RIGHTS, EXCULPATION, ETC.
(a) LIABILITIES; RESPONSIBILITIES. None of the Administrative
Agent, any Affiliate of the Administrative Agent, nor any of their respective
officers, directors, employees or agents shall be liable to any Holder for any
action taken or omitted by them hereunder or under any of the Loan Documents, or
in connection therewith, except for damages caused by such Person's gross
negligence or willful misconduct, as determined in a judgment by a court of
competent jurisdiction. The Administrative Agent shall not be liable for any
apportionment or distribution of payments made by it in good faith pursuant to
SECTION 3.02(b), and if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse of any Holder to whom
payment was due, but not made, shall be to recover from other Holders any
payment in excess of the amount to which they are determined to have been
entitled. The Administrative Agent shall not be responsible to any Holder for
any recitals, statements, representations or warranties herein or for the
execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency hereof or of any of the other Loan Documents or
the transactions contemplated thereby, or for the financial condition of any
Borrower or any Borrower's Affiliates. The Administrative Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions hereof or of any of the Loan
Documents or the financial condition of any Borrower or any Affiliate of any
Borrower, or the existence or possible existence of any Default or Event of
Default.
(b) RIGHT TO REQUEST INSTRUCTIONS. The Administrative Agent
may at any time request instructions from the applicable Lenders with respect to
any actions or approvals which, by the terms of any of the Loan Documents, the
Administrative Agent is permitted or required to take or to grant, and the
Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents until it shall have received such
instructions from those Lenders from whom the Administrative Agent is required
to obtain such instructions for the pertinent matter in accordance with the Loan
Documents. Without limiting the generality of the foregoing, no Holder shall
have any right of action whatsoever against the Administrative Agent as a result
of the Administrative Agent acting or refraining from acting under the Loan
Documents in accordance with the instructions of the Requisite Lenders or, where
required by the express terms hereof, a greater proportion of the Lenders.
12.04. RELIANCE. The Administrative Agent shall be entitled to
rely upon any written notices, statements, certificates, orders or other
documents or any telephone message believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person, and with
respect to all matters pertaining hereto or to any of the Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including counsel
for any Borrower), independent public accountants and other experts selected by
it.
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12.05. INDEMNIFICATION. To the extent that the Administrative
Agent is not reimbursed and indemnified by the Borrowers, the Lenders shall
reimburse and indemnify the Administrative Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents, in proportion to such
Lender's Pro Rata Share of all Credit Facilities; provided, however, such
Lenders shall have no obligation to the Administrative Agent with respect to the
matters indemnified pursuant to this SECTION 12.05 resulting from the willful
misconduct or gross negligence of the Administrative Agent, as determined in a
judgment by a court of competent jurisdiction. The obligations of such Lenders
under this SECTION 12.05 shall survive the Payment In Full of the Loans, the
Reimbursement Obligations and all other Obligations and the termination hereof.
12.06. CNAI INDIVIDUALLY. With respect to their respective Pro
Rata Shares of the Commitments hereunder, if any, and the Loans made by it, if
any, CNAI shall have and may exercise the same rights and powers hereunder and
are subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender under the applicable Credit Facility. The
terms "Lenders", "Domestic Lenders" or "Requisite Lenders" or any similar terms
shall, unless the context clearly otherwise indicates, include CNAI in its
individual capacity as a Lender, a Domestic Lender or as one of the Requisite
Lenders. CNAI and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with NMHG or
any of its Subsidiaries as if CNAI were not acting as Administrative Agent
pursuant hereto.
12.07. SUCCESSOR ADMINISTRATIVE AGENTS; RESIGNATION OF
ADMINISTRATIVE AGENTS.
(a) RESIGNATION. The Administrative Agent may resign from the
performance of its functions and duties hereunder at any time by giving at least
thirty (30) Business Days' prior written notice to the Borrowers and the
Lenders. The resignation of the Administrative Agent shall take effect upon the
acceptance by a successor Administrative Agent of appointment pursuant to this
SECTION 12.07.
(b) APPOINTMENT BY REQUISITE LENDERS. Upon any such notice of
resignation by the Administrative Agent, the Requisite Lenders shall have the
right to appoint a successor Administrative Agent selected from among the
Lenders, which appointment shall be subject to the prior written approval of the
Borrowers (which may not be unreasonably withheld, and shall not be required
upon the occurrence and during the continuance of an Event of Default).
(c) APPOINTMENT BY RETIRING ADMINISTRATIVE AGENT. If a
successor Administrative Agent shall not have been appointed within the thirty
(30) Business Day period provided in PARAGRAPH (a) of this SECTION 12.07, the
retiring Administrative Agent, with the consent of any Borrower (which may not
be unreasonably withheld, and shall not be required upon the occurrence and
during the continuance of an Event of Default), shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent until such time, if
any, as the Requisite Lenders appoint a successor Administrative Agent as
provided above.
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(d) RIGHTS OF THE SUCCESSOR AND RETIRING ADMINISTRATIVE
AGENTS. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder thereafter
to be performed. After the resignation of any Administrative Agent hereunder,
the provisions of this ARTICLE XII shall inure to such Persons' benefit as to
any actions taken or omitted to be taken by it while it was the Administrative
Agent hereunder.
12.08. RELATIONS AMONG LENDERS. Each Lender and each Issuing
Bank agrees that it shall not take any legal action, nor institute any actions
or proceedings, against any Borrower or any other obligor hereunder or with
respect to any Collateral without the prior written consent of the Requisite
Lenders. Without limiting the generality of the foregoing, no Lender may
accelerate or otherwise enforce its portion of the Obligations, or terminate its
Commitments except in accordance with SECTION 11.02(a) or a setoff permitted
under SECTION 14.05.
12.09. CONCERNING THE COLLATERAL AND THE LOAN DOCUMENTS.
(a) PROTECTIVE ADVANCES. The Administrative Agent may from
time to time, from and after the occurrence and during the continuance of a
Default or an Event of Default, make such disbursements and advances to or for
the account of any Borrower pursuant to the Loan Documents which the
Administrative Agent in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral under the applicable Credit Facility or any
portion thereof or to enhance the likelihood or maximize the amount of repayment
of the Loans and other Obligations up to an amount not in excess of the lesser
of (i) an amount equal to (A) the aggregate Commitments under all Credit
Facilities less (B) the sum of the aggregate Credit Facility Outstandings and
(ii) $5,000,000 in the aggregate for all Credit Facilities with respect to
advances made by the Administrative Agent ("PROTECTIVE ADVANCES"). The
Administrative Agent shall notify the Borrowers and each Lender in writing of
each such Protective Advance, which notice shall include a description of the
purpose of such Protective Advance. The Domestic Borrowers jointly and severally
agree and the Multicurrency Borrowers jointly and severally agree to pay the
Administrative Agent, upon demand, the principal amount of all outstanding
Protective Advances under the applicable Credit Facility, together with interest
thereon at the rate from time to time applicable to Floating Rate Loans under
such Credit Facility from the date of such Protective Advance until the
outstanding principal balance thereof is paid in full. If the applicable
Borrower(s) fail to make payment in respect of any Protective Advance within one
(1) Business Day after the date such Borrower receives written demand therefor
from the Administrative Agent, the Administrative Agent shall, unless the notice
in SECTION 2.03(b) has been given, promptly notify each Lender under the
applicable Credit Facility and such Lender agrees that it shall thereupon make
available to the Administrative Agent, in Dollars in immediately available
funds, the amount equal to such Lender's Pro Rata Share under the applicable
Credit Facility of such Protective Advance. If such funds are not made available
to the Administrative Agent by such Lender within one (1) Business Day after the
Administrative Agent's demand therefor, the Administrative Agent shall be
entitled to recover any such amount from such Lender together with interest
thereon at the interest rate applicable to the Loans for each day during the
period commencing on the date of such demand and ending on the date such
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amount is received. The failure of any Lender to make available to the
Administrative Agent such Pro Rata Share of any such Protective Advance shall
neither relieve any other Lender of its obligation hereunder to make available
to the Administrative Agent such other Lender's Pro Rata Share under the
applicable Credit Facility of such Protective Advance on the date such payment
is to be made nor increase the obligation of any other Lender to make such
payment to the Administrative Agent. All outstanding principal of, and interest
on, Protective Advances shall constitute Obligations secured by the Collateral
until paid in full by the applicable Borrower(s).
(b) AUTHORITY. Each Lender and each Issuing Bank authorizes
and directs the Administrative Agent to enter into the Loan Documents relating
to the Collateral for the benefit of the Lenders and the Issuing Bank. Each
Lender and each Issuing Bank agrees that any action taken by the Administrative
Agent or the Requisite Lenders (or, where required by the express terms hereof,
a different proportion of the Lenders) in accordance with the provisions hereof
or of the other Loan Documents, and the exercise by the Administrative Agent or
the Requisite Lenders (or, where so required, such different proportion) of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders and Issuing Bank. Without limiting the generality of the foregoing, the
Administrative Agent shall have the sole and exclusive right and authority to
(i) act as the disbursing and collecting agent for the Lenders and the Issuing
Bank under the Credit Facilities with respect to all payments and collections
arising in connection herewith and with the Loan Documents relating to the
Collateral; (ii) execute and deliver each Loan Document relating to the
Collateral and accept delivery of each such agreement delivered by any Credit
Party; (iii) act as collateral agent for the Lenders and the Issuing Bank for
purposes of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein, provided, however, the
Administrative Agent hereby appoints, authorizes and directs each Lender and
each Issuing Bank to act as collateral sub-agent for the Administrative Agent,
the Lenders and the Issuing Bank for purposes of the perfection of all security
interests and Liens with respect to the Property at any time in the possession
of such Lender or the Issuing Bank, including, without limitation, the Credit
Parties' respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender or such Issuing Bank; (iv) manage, supervise
and otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
Liens created or purported to be created by the Loan Documents; and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the Administrative Agent, the
Lenders or the Issuing Bank with respect to the Collateral under the Loan
Documents relating thereto, applicable law or otherwise.
(c) RELEASE OF COLLATERAL.
(i) Each of the Lenders and the Issuing Bank hereby directs
the Administrative Agent to release any Lien held by the Administrative
Agent for the benefit of the Administrative Agent, the Lenders, the
Issuing Bank and the other Holders:
(A) against all of the Collateral, upon final Payment In Full
of the Obligations and termination of the Commitments and this
Agreement;
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(B) against any part of the Collateral sold or disposed of by
any Borrower or any Borrower Subsidiary, if such sale or
disposition is permitted by SECTION 3.06, 9.02 or 9.06 and
certified to the Administrative Agent by such Borrower in an
Officer's Certificate (or permitted pursuant to a waiver or
consent of a transaction otherwise prohibited by such Section)
or, if not pursuant to such sale or disposition, against any
part of the Collateral, if such release is consented to by
Lenders whose aggregate Pro Rata Shares under all Credit
Facilities, in the aggregate, are equal to 100%; and
(C) against the Foreign Collateral if the Multicurrency
Commitments have been terminated and permanently reduced to
zero and the Multicurrency Obligations have been Paid in Full.
(ii) Each of the Lenders and the Issuing Bank hereby directs
the Administrative Agent to execute and deliver or file such
termination and partial release statements and do such other things as
are necessary to release Liens to be released pursuant to this SECTION
12.09(c) promptly upon the effectiveness of any such release.
(d) NO OBLIGATION. Without limiting the generality of SECTION
12.03, the Administrative Agent shall not have any obligation whatsoever to any
Lender or to any other Person to assure that the Collateral exists, is owned by
any Credit Party, is cared for, protected or insured or has been encumbered or
that the Liens granted to the Administrative Agent herein or pursuant to the
Loan Documents have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Administrative Agent in this
SECTION 12.09 or in any of the Loan Documents, it being understood and agreed
that in respect of the Collateral, or any act, omission or event related
thereto, the Administrative Agent may act in any manner it may deem appropriate,
in its sole discretion, given the Administrative Agent's own interests in the
Collateral as one of the Lenders and that the Administrative Agent shall not
have any duty or liability whatsoever to any Lender, the Issuing Bank or any
other Holder; provided, however, that the Administrative Agent shall not be
relieved of any liability imposed by law for gross negligence or willful
misconduct.
(e) DUTCH PLEDGES. For the purpose of the Dutch Pledges only:
(i) In connection with the Obligations of each Borrower
towards any Lender, any Issuing Bank or any Holder (each an "OBLIGEE"
and collectively the "OBLIGEES"), 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.
(ii) If and to the extent that, notwithstanding SECTION 14.14,
Dutch law applies to this SECTION 12.09(e), this Agreement constitutes
a management agreement
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(beheersregeling) within the meaning of Section 3:168 of the Dutch
Civil Code among CNAI and the Obligees; CNAI and the Obligees exclude
among them to the greatest extent possible, the applicability of title
7 of book 3 of the Dutch Civil Code with respect to the Obligations.
(iii) The rights of pledge created or to be created by the
Dutch Pledges are granted by the applicable Credit Parties to CNAI, as
Administrative Agent. Such rights of pledge are therefore not held
among the Obligees and CNAI in a community of property (gemeenschap)
within the meaning of Section 3:166 of the Dutch Civil Code.
ARTICLE XIII
CO-BORROWER PROVISIONS
13.01. DOMESTIC BORROWERS. Each of the Domestic Borrowers
hereby irrevocably designates, appoints and authorizes each other Domestic
Borrower as its agent and attorney-in-fact to take actions under this Agreement
and the other Loan Documents, together with such powers as are reasonably
incidental thereto. The Administrative Agent, the Issuing Bank and the Lenders
shall be entitled to rely, and shall be fully protected in relying, upon any
communication from or to any Domestic Borrower as having been delivered by or to
all Domestic Borrowers. Any action taken by one Domestic Borrower under this
Agreement and the other Loan Documents shall be binding upon the other Domestic
Borrowers. Each Domestic Borrower agrees that it is jointly and severally liable
to the Administrative Agent, the Issuing Bank and the Lenders for the payment of
the Domestic Obligations and that such liability is independent of the
Obligations of the other Borrowers and whether such Obligations become
unenforceable against any other Borrower.
13.02. MULTICURRENCY BORROWERS. Each of the Multicurrency
Borrowers hereby irrevocably designates, appoints and authorizes each other
Multicurrency Borrower as its agent and attorney-in-fact to take actions under
this Agreement and the other Loan Documents, together with such powers as are
reasonably incidental thereto. The Administrative Agent, the Issuing Bank and
the Lenders shall be entitled to rely, and shall be fully protected in relying,
upon any communication from or to any Multicurrency Borrower as having been
delivered by or to all Multicurrency Borrowers. Any action taken by one
Multicurrency Borrower under this Agreement and the other Loan Documents shall
be binding on the other Multicurrency Borrowers. Each Multicurrency Borrower
agrees that it is jointly and severally liable to the Administrative Agent, the
Issuing Bank and the Lenders for the payment of the Multicurrency Obligations
and that such liability is independent of the Multicurrency Obligations of the
other Multicurrency Borrowers and whether such Multicurrency Obligations become
unenforceable against the other Multicurrency Borrowers.
13.03. SEPARATE ACTIONS. A separate action or actions may be
brought and prosecuted against any Borrower whether such action is brought
against any other Borrower or whether any other Borrower is joined in such
action or actions. Each Borrower authorizes the Administrative Agent and the
Lenders to release the other Borrowers without in any manner or to any extent
affecting the liability of such Borrower hereunder or under the Loan Documents.
Each Borrower waives any defense arising by reason of any disability or other
defense of any other Borrower, or the cessation for any reason whatsoever of the
liability of any other Borrower
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with respect to any of the Obligations, or any claim that any Borrower's
liability hereunder exceeds or is more burdensome than the liability of any
other Borrower or Borrowers.
13.04. OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. Each Borrower
hereby agrees that its Obligations hereunder and under the Loan Documents shall
be unconditional, irrespective of:
(a) the validity, enforceability, avoidance or subordination
of any of the Obligations or any of the Loan Documents as to any other Borrower;
(b) the absence of any attempt by, or on behalf of, the
Administrative Agent, the Issuing Bank or any of the Lenders to collect, or to
take any other action to enforce, all or any part of the Obligations whether
from or against any Borrower or any other Person liable for such Obligations;
(c) the election of any remedy available under the Loan
Documents or applicable Requirements of Law by, or on behalf of, the
Administrative Agent, the Issuing Bank or any of the Lenders with respect to all
or any part of the Obligations;
(d) the waiver, consent, extension, forbearance or granting of
any indulgence by, or on behalf of, the Administrative Agent, the Issuing Bank
or any of the Lenders with respect to any provision of any of the Loan
Documents;
(e) the failure of the Administrative Agent, the Issuing Bank
or any of the Lenders to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for the
Obligations;
(f) the election by, or on behalf of, the Administrative
Agent, the Issuing Bank or any of the Lenders, in any proceeding which
constitutes a Bankruptcy Event, involving any other Borrower of any right which
is comparable to the rights set forth in Section 1111(b)(2) of the Bankruptcy
Code;
(g) any borrowing or grant of a security interest by any other
Borrower, or any receiver or assignee following the occurrence of a Bankruptcy
Event, pursuant to any provision of applicable law comparable to Section 364 of
the Bankruptcy Code;
(h) the disallowance, under any provision of applicable law
comparable to Section 502 of the Bankruptcy Code, of all or any portion of the
claims against any Borrower held by any of the Lenders, the Issuing Bank or the
Administrative Agent, for repayment of all or any part of the Obligations;
(i) the insolvency of any other Borrower; and
(j) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of any Borrower (other than Payment In
Full of the Obligations).
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13.05. WAIVERS AND ACKNOWLEDGEMENTS.
(a) Except as otherwise expressly provided under any provision
of the Loan Documents or as required by any mandatory provision of applicable
Requirements of Law, each Borrower hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of receivership,
insolvency or bankruptcy of any Borrower or any other Person, protest or notice
with respect to the Obligations, all setoffs and counterclaims and all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Agreement and the other Loan Documents, the benefits of all statutes of
limitation, and all other demands whatsoever (and shall not require that the
same be made on any other Borrower as a condition precedent to such other
Borrower's Obligations hereunder), and covenants that this Agreement (and the
joint and several liability of each Domestic Borrower under SECTION 13.01 and
the joint and several liability of each Multicurrency Borrower under SECTION
13.02) will not be discharged, except by Payment In Full of the Obligations.
Each Borrower further waives all notices of the existence, creation or incurring
of new or additional Indebtedness, arising either from additional loans extended
to any other Borrower or otherwise, and also waives all notices that the
principal amount, or any portion thereof, and/or any interest on any instrument
or document evidencing all or any part of the Obligations is due, notices of any
and all proceedings to collect from the maker, any endorser or any other
Guarantor of all or any part of the Obligations, or from any other Person, and,
to the extent permitted by law, notices of exchange, sale, surrender or other
handling of any security or Collateral given to the Administrative Agent, the
Issuing Bank or any of the Lenders to secure payment of all or any part of the
Obligations.
(b) The Administrative Agent, the Issuing Bank and/or the
Lenders are hereby authorized, without notice or demand and without affecting
the liability of the Borrowers hereunder, from time to time, (i) to accept
partial payments on all or any part of the Obligations; (ii) to take and hold
security or Collateral for the payment of all or any part of the Obligations,
this Agreement, or any other guaranties of all or any part of the Obligations or
other liabilities of the Borrowers, and (iii) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all or any part of
the Obligations, this Agreement, any guaranty of all or any part of the
Obligations, and, subject to the terms of the relevant Security Documents, any
security or Collateral for the Obligations or for any such guaranty,
irrespective of the effect on the contribution or subrogation rights of the
Borrowers. Any of the foregoing may be done in any manner, without affecting or
impairing the obligations of each Borrower hereunder.
13.06. CONTRIBUTION AMONG BORROWERS.
(a) The Domestic Borrowers agree as between themselves and
without limiting any liability of any Domestic Borrower hereunder to the
Administrative Agent, the Issuing Bank or the Domestic Lenders, that to the
extent any payment of the Obligations of the Domestic Borrowers is required to
be made under this Agreement, each Domestic Borrower shall be responsible for a
portion of such payment equal to the product of (a) a fraction, the numerator of
which is the net worth (determined in accordance with GAAP) of such Domestic
Borrower on the date of such payment and the denominator of which is the
aggregate net worth (computed as aforesaid) of the Domestic Borrowers,
MULTIPLIED BY (b) the amount of such payment (such product being such Domestic
Borrower's "DB CONTRIBUTION AMOUNT"). To the extent that any
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Domestic Borrower (the "PAYING DOMESTIC BORROWER") shall make a payment in
respect of the Obligations of the Domestic Borrowers under this Agreement in
excess of its DB Contribution Amount, the other Domestic Borrowers shall
reimburse the Paying Domestic Borrower in an amount equal to the excess of such
payment over the Paying Domestic Borrower's DB Contribution Amount, PRO RATA
based on the respective net worths of such other Domestic Borrowers at the date
enforcement under this Agreement is sought.
(b) The Multicurrency Borrowers agree as between themselves
and without limiting any liability of any Multicurrency Borrower hereunder to
the Administrative Agent, the Issuing Bank or the Multicurrency Lenders, that to
the extent any payment of the Obligations of the Multicurrency Borrowers is
required to be made under this Agreement, each Multicurrency Borrower shall be
responsible for a portion of such payment equal to the product of (a) a
fraction, the numerator of which is the net worth (determined in accordance with
GAAP) of such Multicurrency Borrower on the date of such payment and the
denominator of which is the aggregate net worth (computed as aforesaid) of the
Multicurrency Borrowers, MULTIPLIED BY (b) the amount of such payment (such
product being such Multicurrency Borrower's "MB CONTRIBUTION AMOUNT"). To the
extent that any Multicurrency Borrower (the "PAYING MULTICURRENCY BORROWER")
shall make a payment in respect of the Obligations of the Multicurrency
Borrowers under this Agreement in excess of its MB Contribution Amount, the
other Multicurrency Borrowers shall reimburse the Paying Multicurrency Borrower
in an amount equal to the excess of such payment over the Paying Multicurrency
Borrower's MB Contribution Amount, PRO RATA based on the respective net worths
of such other Multicurrency Borrowers at the date enforcement under this
Agreement is sought.
13.07. SUBROGATION. Until the Obligations shall have been Paid
In Full, each Borrower hereby agrees that it (i) shall have no right of
subrogation with respect to such Obligations (under contract, Section 509 of the
Bankruptcy Code or any comparable provision of any other applicable law, or
otherwise) or any other right of indemnity, reimbursement or contribution, and
(ii) hereby waives any right to enforce any remedy which the Administrative
Agent, any of the Lenders or the Issuing Bank now have or may hereafter have
against the other Borrowers, any endorser or any other Guarantor of all or any
part of the Obligations or any other Person, and each Borrower hereby waives any
benefit of, and any right to participate in, any security or Collateral given to
the Administrative Agent, the Lenders and the Issuing Bank to secure the payment
or performance of all or any part of the Obligations or any other liability of
the other Borrowers to the Administrative Agent, the Lenders and the Issuing
Bank.
13.08. SUBORDINATION. Each Borrower agrees that any and all
claims of such Borrower against the other Borrowers, any Guarantors or any
endorser or other guarantor of all or any part of the Obligations, or against
any of their respective properties, shall be subordinated to all of the
Obligations. Notwithstanding any right of any Borrower to ask for, demand, ▇▇▇
for, take or receive any payment from the other Borrowers, all rights and Liens
of such Borrower, whether now or hereafter arising and howsoever existing, in
any assets of the other Borrowers (whether constituting part of the Collateral
or otherwise) shall be and hereby are subordinated to the rights of the
Administrative Agent, the Issuing Bank or the Lenders in those assets. Such
Borrower shall have no right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until
all of the Obligations shall have been Paid In Full and any Commitments of the
Lenders and the Issuing Bank under, or in respect of,
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the Credit Facilities have terminated. If all or any part of the assets of any
Borrower, or the proceeds thereof, are subject to any distribution, division or
application to the creditors of such Borrower, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of any Borrower is dissolved or if
substantially all of the assets of any Borrower are sold, then, and in any such
event, any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with
respect to any Indebtedness of any Borrower to any other Borrower
("INTER-BORROWER INDEBTEDNESS") shall be paid or delivered directly to the
Administrative Agent for application to the applicable Obligations, due or to
become due, until such Obligations shall have first been Paid In Full and all
Commitments of the Lenders and the Issuing Bank under, or in respect of, each
Credit Facility, have terminated. Each Borrower irrevocably authorizes and
empowers the Administrative Agent, and each of the Lenders and the Issuing Bank
to demand, ▇▇▇ for, collect and receive every such payment or distribution and
give acquittance therefor and to make and present for and on behalf of such
Borrower such proofs of claim and take such other action, in the Administrative
Agent's, such Lender's or Issuing Bank's own name or in the name of such
Borrower or otherwise, as the Administrative Agent, any Lender or the Issuing
Bank may deem reasonably necessary or reasonably advisable for the enforcement
of this Agreement. After the occurrence and during the continuance of an Event
of Default, each Lender and the Issuing Bank may vote, with respect to the
Obligations owed to it, such proofs of claim in any such proceeding, receive and
collect any and all dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and apply the same on account of
any of the Obligations. Except as permitted under SECTION 9.06(b), should any
payment, distribution, security or instrument or proceeds thereof be received by
any Borrower upon or with respect to the Inter-Borrower Indebtedness prior to
the Payment In Full of all of the Obligations and the termination of all
Commitments, such Borrower shall receive and hold the same in trust, as trustee,
for the benefit of the Administrative Agent, the Issuing Bank and the Lenders
and shall forthwith deliver the same to the Administrative Agent in precisely
the form received (accompanied by the endorsement or assignment of such Borrower
where necessary), for application to the Obligations, due or not due, and, until
so delivered, the same shall be held in trust by such Borrower as the property
of the Administrative Agent, the Issuing Bank and the Multicurrency Lenders.
After the occurrence and during the continuance of an Event of Default, if any
Borrower fails to make any such endorsement or assignment to the Administrative
Agent, the Issuing Bank or the Lenders, the Administrative Agent, the Issuing
Bank or the Lenders (or any of their respective officers or employees) are
hereby irrevocably authorized to make the same. Each Borrower agrees that until
the Obligations have been Paid In Full and all Commitments of the Lenders and
the Issuing Bank under or in respect of each Credit Facility have terminated,
such Borrower will not assign or transfer to any Person any claim such Borrower
has or may have against any other Borrower (other than in favor of the
Administrative Agent pursuant to the Loan Documents).
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ARTICLE XIV
MISCELLANEOUS
14.01. LENDER ASSIGNMENTS AND PARTICIPATIONS.
(a) GENERAL. No assignments or participations of any Lender's
rights or obligations hereunder shall be made except in accordance with this
SECTION 14.01.
(b) LIMITATIONS ON ASSIGNMENTS. Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations
hereunder (including all of its rights and obligations with respect to the
Revolving Loans and the Letters of Credit) in accordance with the provisions of
this SECTION 14.01. Each assignment by a Lender shall be subject to the
following conditions: (i) each assignment (other than to a Lender, an Affiliate
of a Lender or an Approved Fund) shall be approved by the Administrative Agent
and the Borrowers, which approval shall not be unreasonably withheld or delayed;
(ii) each such assignment shall be to an Eligible Assignee (for the sake of
clarity, no Person shall be considered an Eligible Assignee under any Credit
Facility solely because of its Affiliation with any other Person to whom an
assignment is concurrently being made with respect to the other Credit Facility)
and in the case of an assignment of a Lender's Multicurrency Commitment, the
Administrative Agent shall be satisfied with such assignee's (or its
Affiliates') ability to fund in the Specified Foreign Currencies; (iii) each
assignment of a Lender's Commitment shall be an assignment of the assigning
Lender's (and, where applicable, its Affiliates') Commitments in each Credit
Facility in which such Lender (and, if applicable, its Affiliates) then hold
Commitments and shall be allocated to such Credit Facilities as determined by
such Lender (and, if applicable, its Affiliates) and consented to by the
Administrative Agent; (iv) each assignment shall be in an amount such that,
after giving effect to such assignment, the Eligible Assignee (and, if
applicable, its Affiliates) shall hold aggregate Commitments in an amount at
least equal to $5,000,000 (provided, that more than one Lender (and, if
applicable, its Affiliates) may be the assigning Lender under any such
assignment) except if the Eligible Assignee is a Lender, an Affiliate of a
Lender, or an Approved Fund or if such assignment shall constitute all the
assigning Lender's interest hereunder; and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, and, if such Eligible Assignee is not then a Lender, an
Administrative Questionnaire, for its acceptance and recording in the Register.
Upon such execution, delivery, acceptance and recording in the Register, from
and after the effective date specified in each Assignment and Acceptance and
agreed to by the Administrative Agent and NMHG, (x) the assignee thereunder
shall, in addition to any rights and obligations hereunder held by it
immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder and (y)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations hereunder (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of such
assigning Lender's rights and obligations hereunder, the assigning Lender shall
cease to be a party hereto). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such
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Lender of a participation in such rights and obligations in accordance with
PARAGRAPH (h) of this SECTION 14.01.
(c) THE REGISTER. The Administrative Agent, acting solely for
this purpose as an agent for the Borrowers, shall maintain at its address in
effect pursuant to SECTION 14.08 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Commitments of the
Lenders under each Credit Facility, the principal amount of the Loans under each
Credit Facility owing to each Lender from time to time and whether such Lender
is an original Lender or the assignee of another Lender pursuant to an
Assignment and Acceptance. The Register shall include an account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, (ii) the effective date and amount of
each Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest or fees due and payable
or to become due and payable from each Borrower to each Lender hereunder or
under the Notes, and (iv) the amount of any sum received by the Administrative
Agent from NMHG Holding, NMHG or any Guarantor hereunder and each Lender's share
thereof. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and NMHG and each of its Subsidiaries, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes hereof. The
Register shall be available for inspection by NMHG or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) FEE. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Eligible Assignee and (unless waived by
the Administrative Agent) a processing and recordation fee of $3,500 (payable by
the assigning Lender or the assignee, as shall be agreed between them), the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in compliance herewith and in substantially the form of EXHIBIT B hereto,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to NMHG and the
other Lenders.
(e) INFORMATION REGARDING NMHG. Any Lender may, in connection
with any assignment or proposed assignment pursuant to this SECTION 14.01,
disclose to the assignee or proposed assignee any information relating to NMHG
Holding, NMHG or any of NMHG's Subsidiaries furnished to such Lender by the
Administrative Agent or by or on behalf of any Borrower; provided that, prior to
any such disclosure, such assignee or proposed assignee shall agree (for the
Borrowers' benefit) to preserve in accordance with SECTION 14.20 the
confidentiality of any confidential information described therein.
(f) LENDERS' CREATION OF SECURITY INTERESTS. Notwithstanding
any other provision set forth herein, any Lender may at any time create a
security interest in all or any portion of its rights hereunder to secure
obligations of such Lender, including without limitation, in favor of any
Federal Reserve bank in accordance with Regulation A; provided, however, such
creation of a security interest shall not release such assigning Lender from any
of its obligations hereunder or substitute such holder of a security interest
for such Lender as a party hereto.
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(g) ASSIGNMENTS BY AN ISSUING BANK. If the Issuing Bank (or
its Affiliate) ceases to be a Lender hereunder by virtue of any assignment made
pursuant to this SECTION 14.01 and another Issuing Bank is obligated to Issue
Letters of Credit or will become so obligated after such assignment becomes
effective, then, as of the effective date of such cessation, such Issuing Bank's
obligations to Issue Letters of Credit pursuant to SECTION 2.02 shall terminate
and such Issuing Bank shall be an Issuing Bank hereunder only with respect to
outstanding Letters of Credit Issued prior to such date.
(h) PARTICIPATIONS. Each Lender may sell participations to one
or more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities hereunder (including,
without limitation, all or a portion of any or all of its Commitments hereunder
and the Loans owing to it and its undivided interest in the Letters of Credit)
to any Person (the "PARTICIPANT"); provided, however, that (i) such Lender's
obligations hereunder (including, without limitation, its Commitments hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) NMHG
Holding, the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations hereunder and (iv) such Participant's rights to
agree or to restrict such Lender's ability to agree to the modification, waiver
or release of any of the terms of the Loan Documents or to the release of any
Collateral covered by the Loan Documents, to consent to any action or failure to
act by any party to any of the Loan Documents or any of their respective
Subsidiaries or Affiliates, or to exercise or refrain from exercising any powers
or rights which any Lender may have under or in respect of the Loan Documents or
any Collateral, shall be limited to the right to consent to (A) reduction of the
principal of, or rate or amount of interest on the Loans(s) subject to such
participation (other than by the payment or prepayment thereof), (B)
postponement of any scheduled date for any payment of principal of, or interest
on, the Loan(s) subject to such participation (except with respect to any
modifications of the applicable provisions relating to the prepayments of Loans
and other Obligations) and (C) release of any guarantor of the Obligations or
all or any substantial portion of the Collateral except for any such release
provided in SECTION 12.09(c). No holder of a participation in all or any part of
the Loans shall be a "Lender" or a "Holder" for any purposes hereunder by reason
of such participation; provided, however, that each holder of a participation
shall have the rights and obligations of a Lender (including any right to
receive payment) under SECTIONS 3.04, 3.05, 4.01(f), 4.02(c), 4.02(e), 12.05,
14.02 and 14.05; provided, however, that all requests for any payments pursuant
to such Sections shall be made by a Participant through the Lender granting such
participation. The right of each holder of a participation to receive payment
under SECTIONS 3.04, 3.05, 4.01(f), 4.02(c), 4.02(e), 12.05, 14.02 and, provided
such Participant agrees to be subject to SECTION 14.06 as though it were a
Lender, 14.05 shall be limited to the lesser of (i) the amounts actually
incurred by such holder for which payment is provided under said Sections and
(ii) the amounts that would have been payable under said Sections by the
Borrowers to the Lender granting the participation in respect of the
participated interest to such holder had such participation not been granted.
Each Lender shall promptly notify the Administrative Agent of the identity of
any holder of a participation.
(i) PAYMENT TO PARTICIPANTS. Anything herein to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrowers under the Loan
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Documents shall be calculated and made in the manner and to the parties required
hereby as if no such participation had been sold.
14.02. EXPENSES.
(a) GENERALLY. The Borrowers jointly and severally agree upon
demand to pay, or reimburse the Administrative Agent for, all of the
Administrative Agent's reasonable internal and external audit, legal, appraisal,
valuation, filing, document duplication and reproduction and investigation
expenses and for all other reasonable out-of-pocket costs and expenses of every
type and nature (including, without limitation, the reasonable fees, expenses
and disbursements of the Administrative Agent's counsel, Sidley, ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ LLP, local legal counsel, auditors, accountants, appraisers, printers,
insurance and environmental advisers, and other consultants and agents),
incurred by the Administrative Agent in connection with (i) the Administrative
Agent's audit and investigation of the Borrowers and their Subsidiaries in
connection with the preparation, negotiation, and execution of the Loan
Documents and the Administrative Agent's periodic audits of the Borrowers and
their Subsidiaries; (ii) the preparation, negotiation, execution and
interpretation hereof (including, without limitation, the satisfaction or
attempted satisfaction of any of the conditions set forth in ARTICLE V), the
other Loan Documents and any proposal letter or commitment letter issued in
connection therewith and the making of the Loans hereunder; (iii) the creation,
perfection or protection of the Liens under the Loan Documents (including,
without limitation, any reasonable fees and expenses for local counsel in
various jurisdictions); (iv) the ongoing administration hereof and of the Loans,
including consultation with attorneys in connection therewith and with respect
to the Administrative Agent's rights and responsibilities hereunder and under
the other Loan Documents; (v) the protection, collection or enforcement of any
of the Obligations or the enforcement of any of the Loan Documents; (vi) the
commencement, defense or intervention in any court proceeding relating in any
way to the Obligations, the Property, any Borrower or any Borrower's
Subsidiaries, this Agreement or any of the other Loan Documents; (vii) the
response to, and preparation for, any subpoena or request for document
production with which the Administrative Agent is served or deposition or other
proceeding in which the Administrative Agent is called to testify, in each case,
relating in any way to the Obligations, the Property, any Borrower or any
Borrower's Subsidiaries, this Agreement or any of the other Loan Documents; and
(H) any amendments, consents, waivers, assignments, restatements, or supplements
to any of the Loan Documents and the preparation, negotiation, and execution of
the same.
(b) AFTER DEFAULT. The Borrowers further jointly and severally
agree to pay or reimburse the Administrative Agent, the Issuing Bank and the
Lenders upon demand for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement), incurred by the Administrative Agent, the
Issuing Bank or any Lender (i) in enforcing any Loan Document or Obligation or
any security therefor or exercising or enforcing any other right or remedy
available by reason of any Event of Default; (ii) in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or in any insolvency or bankruptcy proceeding; (iii)
in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, the Property, any Borrower or any Borrower's
Subsidiaries and related to or arising out of the transactions contemplated
hereby or by any of the other Loan Documents; and
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(iv) in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in CLAUSES (I) through (III) above.
14.03. INDEMNITY. Each Domestic Borrower further jointly and
severally agrees, and each Multicurrency Borrower further jointly and severally
agrees, to defend, protect, indemnify, and hold harmless the Administrative
Agent, each and all of the Domestic Lenders (in the case of the Domestic
Borrowers only), each and all of the Multicurrency Lenders (in the case of the
Multicurrency Borrowers only) and the Issuing Bank and each of their respective
Affiliates, and each of such Administrative Agent's, Lender's, Issuing Bank's or
Affiliate's respective officers, directors, employees, attorneys, advisors,
representatives and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in ARTICLE V) (collectively, the "INDEMNITEES"), in each
case from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including, without limitation, the fees and
disbursements of counsel for such Indemnitees)(including in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of or
in connection with (a) this Agreement, the Commitment Letter, the other Loan
Documents, or any act, event or transaction related or attendant thereto,
whether or not any such Indemnitee is a party thereto and whether or not such
transactions are consummated, the making of the Loans, the issuance of and
participation in Letters of Credit hereunder, the management of such Loans or
Letters of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, the execution, delivery and/or performance of
Currency Agreements or Interest Rate Contracts, or any of the other transactions
contemplated by the Loan Documents, or (b) any Liabilities and Costs under
Environmental, Health or Safety Requirements of Law arising from or in
connection with this Agreement, the Commitment Letter, the other Loan Documents,
or an act, event or transaction attendant thereto, the past, present or future
operations of any Credit Party or any Borrower Subsidiary or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective Property of any
Credit Party or any Borrower Subsidiary, the Release or exposure to or presence
or suspected Release, exposure to, or presence of any Contaminant at, on or from
any respective current or former Property of any Credit Party or any Borrower
Subsidiary, or other property of third parties (collectively, the "INDEMNIFIED
MATTERS"); provided, however, the Borrowers shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Matters to the extent resulting
from the willful misconduct or gross negligence of such Indemnitee as determined
in a final, non-appealable judgment of a court of competent jurisdiction. To the
extent that the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, each applicable Borrower shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees. Each
Domestic Borrower jointly and severally agrees, and each Multicurrency Borrower
jointly and severally agrees, not to assert any claim against any Indemnitee on
any theory of liability for special, indirect, consequential or punitive damages
arising out of, or in any way in connection with, the Commitments, the
Obligations or any other matters governed by this Agreement and/or the other
Loan Documents.
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14.04. CHANGE IN ACCOUNTING PRINCIPLES. If any change in the
accounting principles used in the preparation of the most recent Financial
Statements is hereafter required or permitted by the rules, regulations,
pronouncements and opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) and are adopted by NMHG Holding with the
agreement of its independent certified public accountants and such change
results in a change in the method of calculation of any of the covenants,
standards or terms found in ARTICLE IX and ARTICLE X, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such change with the desired result that the criteria for evaluating
compliance with such covenants, standards and terms by NMHG Holding shall be the
same after such change as if such change had not been made; provided, however,
no change in GAAP that would affect the method of calculation of any of the
covenants, standards or terms shall be given effect in such calculations until
such provisions are amended, in a manner satisfactory to the Requisite Lenders
and NMHG Holding, so to reflect such change in accounting principles.
14.05. SETOFF. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, each Lender, each
Issuing Bank and any Affiliate of any Lender or Issuing Bank is hereby
authorized by each Borrower at any time or from time to time, without notice to
any Person (any such notice being hereby expressly waived) to combine accounts
or to set off and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured (but not including trust accounts)) and
any other Indebtedness at any time held or owing by such Lender, Issuing Bank or
any of their Affiliates to or for the credit or the account of such Borrower
against and on account of the Obligations of any Borrowers to such Lender,
Issuing Bank or any of their Affiliates, including, but not limited to, all
Loans and Letters of Credit and all claims of any nature or description arising
out of or in connection herewith, irrespective of whether or not (i) such Lender
or Issuing Bank shall have made any demand hereunder or (ii) the Administrative
Agent, at the request or with the consent of the Requisite Lenders, shall have
declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by ARTICLE XI and even though such
Obligations may be contingent or unmatured. Each Lender shall give the
applicable Borrower notice of any action taken pursuant to this SECTION 14.05
promptly upon the occurrence thereof provided that any failure to do so shall
not limit any right of a Lender to take such action. Each Lender and the Issuing
Bank agrees that it shall not, without the express consent of the Requisite
Lenders, and that it shall, to the extent it is lawfully entitled to do so, upon
the request of the Requisite Lenders, exercise its setoff rights hereunder
against any accounts of any Credit Party or any Borrower Subsidiary now or
hereafter maintained with such Lender, Issuing Bank or any Affiliate of such
Lender or Issuing Bank.
14.06. RATABLE SHARING. The Lenders and the Issuing Bank agree
among themselves that, except as otherwise expressly provided in any Loan
Document,
(a) with respect to all amounts received by a Domestic Lender,
an Issuing Bank or a Multicurrency Lender, as the case may be, which are
applicable to the payment of the Obligations (excluding (x) the fees described
in SECTIONS 2.02(g), 3.04, 3.05, 4.01(f) and 4.02 and (y) and amounts so
received in respect of Currency Agreements and/or Interest Rate Contracts)
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equitable adjustment shall be made so that, in effect, (i) all such amounts with
respect to the Domestic Obligations shall be shared among the Domestic Lenders
and the Issuing Bank ratably in accordance with their Pro Rata Shares of the
Domestic Facility and (ii) all such amounts with respect to the Multicurrency
Obligations shall be shared among the Multicurrency Lenders and the Issuing Bank
ratably in accordance with their Pro Rata Shares of the Multicurrency Facility,
whether received by voluntary payment, by the exercise of the right of setoff or
banker's lien, by counterclaim or cross-action or by the enforcement of any or
all of such Obligations (excluding (x) the fees described in SECTIONS 2.02(g),
3.04, 3.05, 4.01(f) and 4.02 and (y) and amounts so received in respect of
Currency Agreements and/or Interest Rate Contracts) or the Collateral, and
(b) if any of them shall by voluntary payment or by the
exercise of any right of counterclaim, setoff, banker's lien or otherwise,
receive payment of a proportion of the aggregate amount of such Obligations held
by it which is greater than the amount which such Lender is entitled to receive
hereunder, the Lender receiving such excess payment shall purchase, without
recourse or warranty, an undivided interest and participation (which it shall be
deemed to have done simultaneously upon the receipt of such payment) in such
Obligations owed to the others so that all such recoveries with respect to such
Obligations shall be applied ratably in accordance with their Pro Rata Shares;
provided, however, that if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participation shall be returned
to such party to the extent necessary to adjust for such recovery, but without
interest except to the extent the purchasing party is required to pay interest
in connection with such recovery.
Each Borrower agrees that any Lender purchasing a participation from another
Lender pursuant to this SECTION 14.06 may, to the fullest extent permitted by
law, exercise all its rights of payment (including, subject to SECTION 14.05,
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation. The Administrative Agent, the Domestic Lenders and the Issuing
Bank further agree and acknowledge that in no event shall proceeds of the
Collateral of the Multicurrency Borrowers, more than sixty-five percent (65.0%)
of the Capital Stock of any Multicurrency Borrower or its Subsidiaries or
amounts received from any Multicurrency Borrower as described herein be shared
with any Domestic Lender or Issuing Bank for application on any of the Domestic
Obligations.
14.07. AMENDMENTS AND WAIVERS.
(a) GENERAL PROVISIONS. Unless otherwise provided for or
required in this Agreement, no amendment or modification of any provision hereof
shall be effective without the written agreement of the Requisite Lenders (which
the Requisite Lenders shall have the right to grant or withhold in their sole
discretion) and the Borrowers, and no termination or waiver of any provision of
this Agreement or any of the Loan Documents, or consent to any departure by the
Borrowers therefrom, shall be effective without the written concurrence of the
Requisite Lenders, which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion. All amendments, modifications, waivers and
consents not specifically reserved to the Lenders, the Issuing Bank and the
Administrative Agent in SECTION 14.07(b), SECTION 14.07(c) and in any other
provisions of this Agreement shall require only the approval of the Requisite
Lenders. Any waiver or consent shall be effective only in the specific instance
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and for the specific purpose for which it was given. No notice to or demand on
any Borrower in any case shall entitle such Borrower to any other or further
notice or demand in similar or other circumstances.
(b) AMENDMENTS, CONSENTS AND WAIVERS BY ALL AFFECTED LENDERS.
Notwithstanding the foregoing, any amendment, modification, termination, waiver
or consent with respect to any of the following provisions of this Agreement
shall be effective only by a written agreement, signed by each Lender or Issuing
Bank affected thereby:
(i) waiver of any of the conditions specified in SECTION 5.01
or 5.02 (except with respect to a condition based upon another
provision this Agreement, the waiver of which requires only the
concurrence of the Requisite Lenders),
(ii) increase in the amount of any of the Commitments of such
Lender,
(iii) reduction of the principal of, rate or amount of
interest on the Loans, the Reimbursement Obligations, or any fees or
other amounts payable to such Lender (other than by the payment or
prepayment thereof),
(iv) except as provided in SECTION 11.02(c), extension of the
Termination Date or postponement of any date on which any payment of
principal of, or interest on, the Loans, the Reimbursement Obligations,
any fees or other amounts payable to such Lender or Issuing Bank would
otherwise be due,
(v) change in the definitions of Commitments, Domestic
Commitments or Multicurrency Commitments (other than as set forth in
CLAUSE (c)(vi) below),
(vi) the orders of priority set forth in SECTION 3.01, CLAUSES
THIRD and FOURTH of SECTION 3.02(b)(i)(B), CLAUSE SECOND of SECTION
3.02(b)(i)(B) or CLAUSES (D) through (J) of SECTION 3.02(b)(ii), and
(vii) amendment of SECTION 3.01(d).
(c) AMENDMENTS, CONSENTS AND WAIVERS BY ALL LENDERS. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) release of any guarantor of the Obligations or all or any
substantial portion of the Collateral (except as provided in SECTION
12.09(c)),
(ii) change in the (A) definition of Requisite Lenders or (B)
the aggregate Pro Rata Share of the Lenders which shall be required for
the Lenders or any of them to take action under this Agreement or the
other Loan Documents,
(iii) amendment of SECTIONS 12.09(c), 14.01, 14.02, 14.06 or
this SECTION 14.07,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by any Borrower,
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(v) waiver of any Event of Default described in SECTIONS
11.01(a), (f), (g), (i) and (n),
(vi) amendment to the definition of Commitments, Domestic
Commitments or Multicurrency Commitments with respect to the maximum
aggregate amounts set forth in such defined terms, and
(vii) amendment or waiver of SECTION 10.01.
(d) ADMINISTRATIVE AGENT AUTHORITY. The Administrative Agent
may, but shall have no obligation to, with the written concurrence of any
Lender, execute amendments, modifications, waivers or consents on behalf of that
Lender. Notwithstanding anything to the contrary contained in this SECTION
14.07, no amendment, modification, waiver or consent shall affect the rights or
duties of the Administrative Agent hereunder or under the other Loan Documents,
including this ARTICLE XIII, unless made in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action; and the order of priority set forth in CLAUSES FIRST and SECOND and the
second CLAUSE FIRST of SECTION 3.02(b)(i)(B) and CLAUSES (a), (b) AND (c) of
SECTION 3.02(b)(ii). Notwithstanding anything herein to the contrary, in the
event that a Borrower shall have requested, in writing, that any Lender agree to
an amendment, modification, waiver or consent with respect to any particular
provision or provisions hereof, and such Lender shall have failed to state, in
writing, that it either agrees or disagrees (in full or in part) with all such
requests (it being understood that any such statement of agreement may be
subject to satisfactory documentation and other conditions specified in such
statement) within thirty (30) days of receipt of such request (or such other
time period as may be designated in such amendment, modification, waiver or
consent), then such Lender shall be deemed to have disagreed with such request.
Furthermore, in the event that any Lender fails to agree to any amendment,
modification, waiver or consent requiring the unanimous approval of the Lenders
pursuant to SECTION 14.07(c), at the joint request of any Borrower and the
Administrative Agent, the Lenders who have so agreed shall have the right (but
not the obligation) to, or to cause an Eligible Assignee to, purchase from such
Lender (at the face amount thereof) all Obligations and Commitments held by such
Lender. Each Lender agrees the if the Administrative Agent or any Borrower
exercises its option hereunder, it shall promptly execute and deliver all
agreements and documentation necessary to effectuate such assignment as set
forth in SECTION 14.01. Any purchase of such Lender's Commitments and all other
Obligations owing to it must (i) occur within 30 Business Days from the date
that such Lender refuses to execute any amendment, waiver or consent which
requires the written consent of all of the Lenders and to which the
Administrative Agent, the other Lenders and the Borrowers have agreed and (ii)
include an amount payable to such Lender which is sufficient to compensate such
Lender for any loss, expense or liability as a result of any such purchase under
this SECTION 14.07(d) which arises out of, or is in connection with, any funds
acquired by such Lender to make, continue or maintain any portion of the
principal amount of any Loan as, or to convert any portion of the principal
amount of any Loan into, a Fixed Rate Loan.
14.08. NOTICES.
(a) Unless otherwise specifically provided herein, any notice,
consent or other communication herein required or permitted to be given shall be
in writing and may be
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personally served, telecopied, sent by e-mail, or sent by courier service or the
United States mails (or with respect to the Multicurrency Borrowers, the mails
of their country of residence) and shall be deemed to have been given (i) four
(4) days following deposit in the United States mails (or with respect to the
Multicurrency Borrowers, the mails of its country of residence), with proper
postage prepaid, (ii) upon delivery thereof to a courier service, (iii) when
delivered in person or (iv) upon confirmation of receipt of a telecopy or of an
email; provided, that no notices with respect to a request for a new, or
conversion of an existing, Borrowing or other extension of credit or providing
notice of any Default or Event of Default may be delivered by e-mail. Notices to
the Administrative Agent pursuant to ARTICLE II, III or IV shall not be
effective until received by the Administrative Agent. For the purposes hereof,
the addresses, telecopy numbers and, if so specified, e-mail addresses of the
parties hereto (until notice of a change thereof is delivered as provided in
this SECTION 14.08) shall be as set forth below each party's name on the
signature pages hereof or the signature page of any applicable Assignment and
Acceptance, or, as to each party, at such other address as may be designated by
such party in a written notice to all of the other parties to this Agreement.
The Administrative Agent may refer the relevant Persons (by fax, letter,
telecopy, or, if so specified, e-mail) to a web site (including "e-Disclosure",
the Administrative Agent's delivery system that is part of SSB Direct, Global
Fixed Income's primary web portal) and to the location of the relevant
information on such web site in discharge of such notification or delivery
obligation provided that such notification or delivery obligation shall not be
discharged by the Administrative Agent referring a Person to a web site if such
Person has previously provided written notice to the Administrative agent that
it does not wish to receive notices via a web site. Each Borrower acknowledges
that although such web sites may be secured with a dual firewall and a user
identification/password authorization system, and secured through a single user
per deal authorization method whereby each user may access such web site only on
a deal-by-deal basis, distribution of material through an electronic medium is
not necessarily secure and there are confidentiality and other risks associated
with such distribution.
(b) The Domestic Borrowers jointly and severally agree, and
the Multicurrency Borrowers jointly and severally agree, to indemnify and hold
harmless each Indemnitee (with respect to the applicable Credit Facility) from
and against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses of any
kind or nature (including, without limitation, reasonable fees and disbursements
of counsel to any such Indemnitee) which may be imposed on, incurred by or
asserted against any such Indemnitee in any manner relating to or arising out of
any action taken or omitted by such Indemnitee in good faith in reliance on any
notice or other written communication in the form of a telecopy or facsimile
purporting to be from a Borrower; provided that no Borrower shall have any
obligation under this SECTION 14.08(b) to an Indemnitee with respect to any
indemnified matter caused by or resulting from the gross negligence or willful
misconduct of that Indemnitee as determined by a court of competent
jurisdiction.
14.09. SURVIVAL OF WARRANTIES AND AGREEMENTS. All
representations and warranties made herein and all obligations of the Borrowers
in respect of taxes, indemnification and expense reimbursement shall survive the
execution and delivery of this Agreement and of the other Loan Documents, the
making and repayment of the Loans, the issuance and discharge
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of Letters of Credit hereunder, the termination of this Agreement and the
termination of the Commitments hereunder and shall not be limited in any way by
the passage of time or occurrence of any event and shall expressly cover time
periods when the Administrative Agent, the Issuing Bank or any of the Lenders
may have come into possession or control of any of the Borrowers' or their
Subsidiaries' Property.
14.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent, any Lender or the
Issuing Bank in the exercise of any power, right or privilege under any of the
Loan Documents shall impair such power, right or privilege or be construed to be
a waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under the Loan Documents are cumulative to and not exclusive
of any rights or remedies otherwise available.
14.11. MARSHALING; PAYMENTS SET ASIDE. None of the
Administrative Agent, any Lender or the Issuing Bank shall be under any
obligation to marshal any assets in favor of the Borrowers or any other party or
against or in payment of any or all of the Obligations. To the extent that a
Borrower makes a payment or payments to the Administrative Agent, the Lenders or
the Issuing Bank or any of such Persons receives payment from the proceeds of
the Collateral or exercise their rights of setoff, and such payment or payments
or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
14.12. SEVERABILITY. In case any provision in or obligation
hereunder or under the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
14.13. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
14.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
14.15. LIMITATION OF LIABILITY. No claim may be made by any
Borrower, any Lender, the Issuing Bank, the Administrative Agent or any other
Person against the Administrative Agent, the Issuing Bank or any other Lender or
the Affiliates, directors, officers, employees, attorneys or agents of any of
them for any special, consequential or punitive damages in respect of any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Borrower, each Lender, the
Issuing Bank and the Administrative Agent hereby waives, releases and agrees not
to ▇▇▇ upon any such claim for any
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such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
14.16. SUCCESSORS AND ASSIGNS. This Agreement and the other
Loan Documents shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of the parties
hereto and the successors and permitted assigns of the Administrative Agent, the
Lenders and the Issuing Bank. The rights hereunder and the interest herein of
the Borrowers may not be assigned or otherwise transferred without the written
consent of all Lenders. Any attempted assignment without such written consent
shall be void. Nothing in this Agreement, express or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided
herein and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
14.17. CERTAIN CONSENTS AND WAIVERS.
(a) PERSONAL JURISDICTION.
(i) EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING
BANK, AND THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND
ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH
COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT
OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
BORROWERS IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION SYSTEM AT
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS PROCESS AGENT (THE
"PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS, THE ISSUING BANK, AND THE BORROWERS AGREES THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE BORROWERS
WAIVES IN ALL DISPUTES ANY
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OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(ii) EACH OF THE BORROWERS AGREES THAT THE ADMINISTRATIVE
AGENT SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH PERSON OR ITS
PROPERTY IN A COURT IN ANY LOCATION TO ENABLE THE ADMINISTRATIVE AGENT,
THE ISSUING BANK AND THE LENDERS TO REALIZE ON THE COLLATERAL OR ANY
OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF THE ADMINISTRATIVE AGENT, THE ISSUING
BANK OR ANY LENDER. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING BANK TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE ADMINISTRATIVE AGENT, ANY
LENDER OR THE ISSUING BANK. EACH OF THE BORROWERS WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. EACH OF THE BORROWERS IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE PROCESS AGENT (IN THE CASE OF ANY
BORROWER) OR THE RELEVANT BORROWER'S NOTICE ADDRESS SPECIFIED PURSUANT TO
SECTION 14.08, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH
MAILING. EACH OF THE BORROWERS IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT TO BRING PROCEEDINGS AGAINST ANY BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT,
THE ISSUING BANK, THE LENDERS, AND THE BORROWERS IRREVOCABLY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, AMONG ANY OF THE ADMINISTRATIVE AGENT, THE ISSUING
BANK, OR THE BORROWERS ARISING OUT OF OR RELATED TO THE TRANSACTIONS
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CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. ANY SUCH PERSON MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
14.18. COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This
Agreement and any amendments, waivers, consents, or supplements hereto 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. This Agreement shall become effective against NMHG
Holding, the Borrowers, each Lender, each Issuing Bank and the Administrative
Agent on the date hereof. This Agreement and each of the other Loan Documents
shall be construed to the extent reasonable to be consistent one with the other,
but to the extent that the terms and conditions of this Agreement are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
14.19. LIMITATION ON AGREEMENTS. All agreements between the
Borrowers, the Administrative Agent, each Lender and the Issuing Bank in the
Loan Documents are hereby expressly limited so that in no event shall any of the
Loans or other amounts payable by the Borrower under any of the Loan Documents
be directly or indirectly secured (within the meaning of Regulation U) by Margin
Stock.
14.20. CONFIDENTIALITY. Subject to SECTION 14.01(e), the
Administrative Agent, the Lenders and the Issuing Bank shall hold all nonpublic
information obtained pursuant to the requirements hereof and identified as such
by any Borrower in accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by a bona fide offeree, transferee
or assignee (or Participant) in connection with the contemplated transfer (or
participation), or as required or requested by any Governmental Authority or
representative thereof, or pursuant to legal process, or to its accountants,
lawyers and other advisors who shall be informed of the confidential nature of
such information, and shall require any such offeree or assignee (or
Participant) to agree (and require any of its offerees, assignees or
Participants to agree) to comply with this SECTION 14.20. In no event shall the
Administrative Agent, any Lender or the Issuing Bank be obligated or required to
return any materials furnished by any Borrower or any Borrower Subsidiary;
provided, however, each offeree shall be required to agree that if it does not
become an assignee, transferee (or Participant) it shall return all materials
furnished to it by such Borrower or Subsidiary thereof in connection herewith.
In the event the Administrative Agent or any Lender or Issuing Bank is requested
or required by law to disclose any of such information, the Administrative Agent
or such Lender or Issuing Bank agrees to provide NMHG with prompt notice
thereof; provided, however, the Administrative Agent or such Lender or Issuing
Bank may, without restriction hereunder, including the providing of such notice,
provide any and all of such information to any of the agencies or other
governmental entities which regularly regulate its ability to engage in any of
its businesses under state or federal law. Any and all confidentiality
agreements entered into between the Administrative Agent, and Lender or the
Issuing Bank and any Borrower shall survive this Agreement.
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14.21. CURRENCY CONVERSIONS.
(a) PLACE AND CURRENCY OF PAYMENT. If any Obligation is
payable in a currency other than Dollars (a "NON-USD CURRENCY") and/or at a
place other than the United States, and such payment is not made as and when
agreed, the applicable Borrowers, jointly and severally, will, upon the request
of the applicable Lender or Issuing Bank, or the Administrative Agent, on behalf
of such Lender or Issuing Bank, either (i) make payment in such Non-USD Currency
and at the place where such Obligation is payable, or (ii) pay the
Administrative Agent, for the benefit of such Lender or Issuing Bank, in Dollars
at the address of the Administrative Agent pursuant to SECTION 14.08 hereof. In
the event of a payment pursuant to clause (ii) above, the applicable Borrowers
will pay the Administrative Agent, for the benefit of such Lender or Issuing
Bank, the equivalent of the amount of such Obligation in Dollars calculated at
the rate of exchange at which, in accordance with normal banking procedures, the
Administrative Agent or such Lender or Issuing Bank may buy such Non-USD
Currency in New York, New York on the date any applicable Borrower makes such
payment.
(b) JUDGMENT CURRENCY.
(i) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder or under the Notes in any
currency (the "ORIGINAL CURRENCY") to another currency (the "OTHER
CURRENCY"), the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be the Spot
Rate on the second Business Day preceding that on which judgment is
given.
(ii) The obligation of each Borrower in respect of any sum due
in the Original Currency from it to any Lender, the Issuing Bank or the
Administrative Agent hereunder or under any Note held by any Lender, as
applicable, shall, notwithstanding any judgment in any Other Currency,
be discharged only to the extent that on the Business Day following
receipt by such Lender, Issuing Bank or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such Other
Currency, such Lender, Issuing Bank or the Administrative Agent (as the
case may be) may in accordance with normal banking procedures purchase
the Original Currency with such Other Currency; if the amount of the
Original Currency so purchased is less than the sum originally due to
such Lender, Issuing Bank or the Administrative Agent (as the case may
be) in the Original Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Lender, Issuing Bank or the Administrative Agent (as the case may be)
against any loss resulting from such purchase or from the inability to
effect such purchase, and if the amount of the Original Currency so
purchased exceeds the sum originally due to any Lender, Issuing Bank or
the Administrative Agent (as the case may be) in the Original Currency,
such Lender, Issuing Bank or the Administrative Agent (as the case may
be) agrees to remit to such Borrower such excess.
14.22. ENTIRE AGREEMENT. This Agreement, taken together with
all of the other Loan Documents embodies the entire agreement and understanding
among the parties hereto and supersedes the Commitment Letter (except for
provisions therein specifically referred to herein) and all prior agreements and
understandings, written and oral, relating to the subject matter hereof.
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14.23. ADVICE OF COUNSEL. The Borrowers and each Lender and
the Issuing Bank understand that the Administrative Agent's counsel represents
only the Administrative Agent's and its Affiliates' interests and that the
Borrowers, other Lenders and other Issuing Bank (if any) are advised to obtain
their own counsel. The Borrowers represent and warrant to the Administrative
Agent and the other Holders that it has discussed this Agreement with its
counsel.
14.24. JOINT ARRANGERS, JOINT BOOKRUNNERS AND SYNDICATION
AGENT. This Loan Agreement places no duties on the Joint Arrangers, Joint
Bookrunners or Syndication Agent in their capacities as such.
14.25. TERMINATION OF THE MULTICURRENCY FACILITY. Upon the
Payment in Full of the Multicurrency Obligations and the permanent reduction to
zero and termination of the Multicurrency Commitments by the Multicurrency
Borrowers in accordance with SECTION 3.01 and as permitted pursuant to SECTION
9.01(m), (a) all references herein to Multicurrency Borrowers, Multicurrency
Commitments, Foreign Guarantors, Multicurrency Loans, Overdraft Loans, Euro
Loans, the Euro Subfacility, Sterling Loans, the Sterling Subfacility and any
other defined terms in which "Multicurrency", "Euro", "Overdraft" or "Sterling"
is part of such defined term's name and all derivations thereof shall have no
effect except to the extent specifically referenced to survive such Payment in
Full of the Obligations, (b) the Multicurrency Borrowers shall continue to
constitute "Borrower Subsidiaries" for the purposes of this Agreement and the
other Loan Documents but shall no longer constitute "Foreign Credit Parties",
"Credit Parties", "Borrowers" or "Guarantors", as applicable, (c) the Foreign
Collateral shall be released in accordance with SECTION 12.02(i)(C), (d) the
Multicurrency Borrower Guaranties and Foreign Guaranties shall be terminated
except to the extent specifically referenced to survive such Payment in Full of
the Obligations, and shall no longer constitute "Loan Documents" and the Foreign
Guarantors shall no longer constitute "Guarantors" or "Foreign Credit Parties",
and (e) the Multicurrency Borrower Guaranty shall remain in effect for any
Obligations which survive such Payment in Full.
[signature pages follow]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
NMHG HOLDING CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
---------------
c/o NACCO Materials Handling Group, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
NACCO MATERIALS HANDLING GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
--------------
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
S-1
NMHG DISTRIBUTION CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
---------------
c/o NACCO Materials Handling Group, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
NACCO MATERIALS HANDLING LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
---------------
c/o NACCO Materials Handling Group, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
S-2
NACCO MATERIALS HANDLING B.V.
By: NACCO MATERIALS HANDLING GROUP, LTD.,
its Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
---------------
c/o NACCO Materials Handling Group, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
S-3
CITICORP NORTH AMERICA, INC., as Administrative
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director and Vice President
Notice Address:
---------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
CITICORP USA, INC., as a Domestic Lender and as
Swing Loan Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director and Vice President
Notice Address:
---------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
▇-▇
▇▇▇▇▇▇▇▇, N.A., as a Multicurrency Lender and as
Overdraft Line Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director and Vice President
Notice Address:
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c/o Citicorp USA, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
Fixed Rate Lending Office:
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Citibank, N.A.
European Loans Agency
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: 011-44-207-500-4484
Confirmation No.: 011-44-207-500-4247
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
S-5
CITIBANK, N.A., as Issuing Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director and Vice President
Notice Address:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
S-6
FOOTHILL CAPITAL CORPORATION, as a Domestic
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: AVP
Notice Address:
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
S-7
NATIONAL CITY COMMERCIAL FINANCE INC.,
as a Domestic Lender
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: President/CEO
Notice Address:
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Locator 3049
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-8
CREDIT SUISSE FIRST BOSTON, as a
Domestic Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇'▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇
Title: Associate Director
Notice Address:
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
CREDIT SUISSE FIRST BOSTON, as a
Multicurrency Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇'▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇
Title: Associate Director
Notice Address:
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
S-9
U.S. BANK NATIONAL ASSOCIATION,
as a Domestic Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address:
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National Corporate Banking Division
U.S. Bank National Association
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
U.S. BANK NATIONAL ASSOCIATION,
as a Multicurrency Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address:
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National Corporate Banking Division
U.S. Bank National Association
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
S-10
KEY CORPORATE CAPITAL INC.,
as a Domestic Lender
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fixed Rate Lending Office:
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-11
GMAC BUSINESS CREDIT, LLC, as a
Domestic Lender and a
Multicurrency Lender
By: /s ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Notice Address:
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Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
S-12
KEY CORPORATE CAPITAL INC., as a
Multicurrency Lender
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fixed Rate Lending Office:
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ PUBLIC EMPLOYEES'
RETIREMENT SYSTEM, as a Domestic Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Portfolio Manager
Notice Address:
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇/326-3396
S-14