EX-10.1



 







Exhibt 10.1

Execution Copy




FIRST AMENDMENT




TO




AMENDED & RESTATED CREDIT AGREEMENT




          THIS FIRST AMENDMENT TO AMENDED & RESTATED CREDIT AGREEMENT (this “First Amendment”)
dated as of March 22, 2006, relates to that certain Amended and Restated Credit Agreement dated as
of December 19, 2005 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among NMHG Holding Co., a Delaware corporation (“NMHG
Holding”), NACCO Materials Handling Group, Inc., a Delaware corporation (“NMHG”), NACCO
Materials Handling Limited (company number 02636775), incorporated under the laws of England and
Wales (the “UK Borrower”), NACCO Materials Handling B.V., a private company with limited
liability incorporated under the laws of the Netherlands having its corporate seat in Nijmegen
(together with NMHG Holding, NMHG and the UK Borrower, the “Borrowers”), the financial
institutions from time to time a party thereto as Lenders, whether by execution of the Credit
Agreement or an Assignment and Acceptance (as defined therein), the financial institutions from
time to time party thereto as Issuing Bank, whether by execution of the Credit Agreement or an
Assignment and Acceptance or otherwise, Citicorp North America, Inc., a Delaware corporation, in
its capacity as administrative agent for the Lenders and the Issuing Bank thereunder (with its
successors and permitted assigns in such capacity, the “Administrative Agent”), and
Citigroup Global Markets Inc. as sole lead arranger and sole bookrunner.




          1. Definitions. Capitalized terms defined in the Credit Agreement and not otherwise
defined or redefined herein have the meanings assigned to them in the Credit Agreement.




          2. First Amendment Effective Date Amendments to Credit Agreement. Upon the “First
Amendment Effective Date” (as defined in Section 6 below), the Credit Agreement is hereby
amended as follows:




          2.1 Amendment to Preamble. The preamble is hereby amended by deleting the
parenthetical “(“NMHG Holding”)” in its entirety and replacing it with “(together with its
permitted successors and assigns hereunder, “NMHG Holding”)”.




          2.2 Amendments to Section 1.01. Section 1.01 of the Credit Agreement is hereby
amended as follows:





     (a) by amending the definition of “Additional Assets” to add the following at
the end of clause (a) thereof: “including materials and labor used to rebuild or restore
Property damaged or lost due to an event of casualty, or to replace Property taken pursuant
to a condemnation proceeding,”;




     (b) by amending the definition of “Australian Subsidiaries” to (i) delete
the term “NMHG Australia Holdings Pty Ltd.” in its entirety and replace it with the term
“NMHG Australia Holding Pty Ltd.”, and (ii) add the term “Trentcorp Pty. Limited,”



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after the term “LTC Forklift Rentals Pty Limited.,” and prior to the phrase “and any other Foreign
Subsidiaries”;




     (c) by deleting the definition of “Change of Control” in its entirety and
substituting the following in its stead:




“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 “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 promulgated by the Commission under
said Act), either directly or indirectly, of twenty-five percent
(25%) or more of the total voting power of the outstanding Voting
Stock of any Relevant Person; 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 such Relevant Person 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 such Relevant Person;




(b) individuals who on the Closing Date constituted the Board of
Directors of any Relevant Person (together with any new directors
whose election by such Board of Directors of such Relevant Person or
whose nomination for election by the stockholders of such Relevant
Person was approved by the Permitted Holders or by a vote of a
majority of the directors of such Relevant Person 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 such Relevant Person then in office;




(c) the adoption of a plan relating to the liquidation or
dissolution of any Credit Party or Relevant Person (other than to
the extent permitted in Section 9.09);




(d) the merger or consolidation of any Credit Party with or into
another Person or the merger of another Person with or into any
Credit Party, or the sale of all or substantially all the assets of
any Credit Party to another Person, other than a transaction
permitted by Section 9.02 and 9.09;




(e) prior to the Funding Date, the occurrence of a “Change of
Control” under (and as defined in) the Senior Note Indenture; or



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(f) one hundred percent (100%) of the Capital Stock of any Borrower
ceasing to be owned (directly or indirectly) by NMHG Holding or
Hyster-Yale, other than to the extent permitted by Section
9.02(c) and 9.09, or one hundred percent (100%) of the
Capital Stock of any Borrower ceasing to be pledged to the
Administrative Agent pursuant to a Pledge Agreement.




     (d) by amending the definition of “Consolidated EBITDA” by adding the following
clause (b)(xi) after clause (b)(x) thereof and prior to the terms “minus (c)”:




, and (xi) cash and non-cash charges arising out of the redemption
of Senior Notes




     (e) by deleting the definition of “Distribution Property”; and




     (f) by adding the following definitions of “Distribution Subsidiary”,
“Hyster-Yale”, “NMHG Holding Company Merger”, “Relevant Person” and
“Restructuring” in proper alphabetical order:




“Distribution Subsidiary” means any Subsidiary as of the
Closing Date of NMHG Distribution B.V. or Hyster Singapore Pte Ltd.




“Hyster-Yale” means Hyster-Yale Materials Handling, Inc, a
Delaware corporation, together with its successors and assigns.




“NMHG Holding Company Merger” means the merger or
consolidation of NMHG Holding with and into Hyster-Yale or NMHG, in
each case in accordance with Section 9.09.




“Relevant Person” means each of (a) NMHG, UK Borrower and
Netherlands Borrower, (b) until an NMHG Holding Company Merger, NMHG
Holding, (c) after an NMHG Holding Company Merger where Hyster-Yale
is the surviving entity, Hyster-Yale, and (d) prior to a
Restructuring, Parent.




“Restructuring” means one or more transactions which
would not cause a Change of Control with respect to any Relevant
Person other than the Parent, the result of which is that the Parent
no longer owns any Capital Stock issued by NMHG Holding, Hyster-Yale,
or any Borrower.



          2.3 Amendments to Section 6.01. Section 6.01 of the Credit Agreement is hereby
amended as follows:





     (a) by amending Section 6.01(a)(i) by deleting the phrase “, and NMHG Distribution has
no account debtors located in the states of New Jersey or Minnesota”;



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     (b) by deleting Section 6.01(q) in its entirety and substituting the following in its
stead:




(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 with a goal to eliminate any funding deficits disclosed in
such valuations over a 14 year period, and no Borrower or Borrower
Subsidiary, or trustee has taken nor will take, any action which
would materially increase any such deficit unless compelled to do so
in compliance with legislation. 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.



          2.4 Amendment to Section 7.01. Section 7.01 is hereby amended by deleting Section
7.01(f) in its entirety and substituting the following in its stead:





(f) Business Plans; Financial Projections. (i) Not later
than March 31st 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, and (ii) not later than June 30th of each 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



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shall be Paid In Full, containing a consolidated balance sheet,
income statement and statement of cash flow.



          2.5 Amendments to Articles VIII. Article VIII is hereby amended as follows:





     (a) by amending Section 8.01 by adding the following phrase at the beginning thereof:
“Except as permitted under Section 9.09”; and




     (b) by amending Section 8.04 by (i) deleting the reference in the first clause (b)
therein to “five days” and substituting it with a reference to “fifteen days”, and (b)
deleting clause (iii) thereof in its entirety and substituting the following in its stead:




(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 (other than any Customary Permitted Lien as defined in
clause (a) of the definition thereof) with respect thereto
is effectively stayed.



          2.6 Amendments to Article IX. Article IX is hereby amended as follows:





     (a) by amending Section 9.01 by deleting the word “and” at the end of clause (r)
thereof, and deleting clause (s) thereof in its entirety and substituting the following in
its stead:




(s) Indebtedness arising from unsecured Indebtedness arising from
unsecured intercompany loans borrowed for the use in any Credit
Party or Borrower Subsidiary’s business and operations in the
People’s Republic of China not to exceed, with Investments permitted
under Section 9.04(j), $12,000,000 in principal amount
outstanding at any time; and




(t) in addition to the Indebtedness permitted by clauses
(a) through (s) above, other unsecured Indebtedness, in
an aggregate principal amount not to exceed $15,000,000 at any time
outstanding.




     (b) by amending Section 9.02(b) by deleting clause (iv) thereof in its entirety and
substituting the following in its stead:




(iv) such sale is of the assets or Capital Stock of any Distribution
Subsidiary; or




     (c) by amending Section 9.04 by (i) deleting the period at the end thereof and
replacing it with “; and”, and (ii) inserting the following Section 9.04(j) immediately
thereafter:


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(j) Investments in the business and operations of the Credit Parties
and Borrower Subsidiaries in the People’s Republic of China not to
exceed, with Indebtedness permitted under Section 9.01(r),
$12,000,000.




     (d) by amending Section 9.06(a) by deleting it in its entirety and substituting the
following in its stead:




(a) Restriction on Dividends. Neither NMHG Holding,
Hyster-Yale nor NMHG may 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 such Person (a
“Dividend”), except NMHG Holding, Hyster-Yale and NMHG may
make Dividends in any Fiscal Year in an aggregate amount (without
duplicating Dividends made by NMHG to Hyster-Yale and subsequently
made by Hyster-Yale to NMHG Holding) not to exceed (i) $5,000,000 so
long as after giving effect to such Dividend, aggregate Availability
will be in excess of $50,000,000, and prior to a Restructuring, no
Bankruptcy Event with respect to the Parent has occurred and is
continuing plus (ii) fifty percent (50%) of an amount equal
to (x) Consolidated Net Income for the immediately preceding Fiscal
Year less (y) $10,000,000, so long as after giving effect to
such Dividend, the outstanding principal amount of Loans is equal to
or less than Unrestricted Cash On Hand; provided, that no Dividend
shall be permitted in each case of clause (i) and
(ii), if (A) a Default or Event of Default has occurred or
is continuing, or after giving effect to such Dividend, a Default or
Event of Default would occur or be continuing, or (B) as of the end
of the most recent fiscal quarter, the Leverage Ratio is greater
than 3.0x.




     (e) by amending Section 9.06(b)(iii) by deleting the reference therein to “$3,000,000”
and substituting “$5,000,000” in its stead;




     (f) by deleting Section 9.09(b) in its entirety and substituting the following in its
stead:




(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; (it being agreed and understood that after
giving effect to any merger, involving NMHG Holding or Hyster-



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Yale, all of the Capital Stock of NMHG shall have been pledged to the
Administrative Agent pursuant to the Pledge Agreement); provided
further, if the non-surviving entity had pledged the Capital Stock
of a Pledged Entity, the Person owning such Capital Stock of such
Pledged Entity following such merger shall execute and deliver a
Pledge Agreement pledging such Capital Stock of the Pledged Entity
to the Administrative Agent; provided that the documents governing
such merger are satisfactory to the Administrative Agent.




     (g) by amending Section 9.13 by deleting it in its entirety and substituting the
following in its stead:




Constituent Documents. Other than in connection with a
transaction permitted pursuant to Section 9.09, no Borrower
shall, nor shall permit any Credit Party or Borrower Subsidiary 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 to the extent doing so will not materially and
adversely effect the rights of the Lenders, provided, that no Credit
Party may change its name other than in accordance with the
applicable Security Agreement.



          2.7 Amendments to Section 12.07. Section 12.07 of the Credit Agreement is hereby
amended as follows:





     (a) by amending clause (a) thereof by deleting the last sentence thereof in its
entirety; and




     (b) by adding the following clause (e) in the proper alphanumerical order thereof:




Effectiveness of Resignation. The resignation of the
Administrative Agent shall be effective immediately upon the
acceptance by a successor Administrative Agent of appointment
pursuant to this Section 12.07. However, if either (i) upon
the date of any resignation by the Administrative Agent determining,
in its sole discretion, that being such Administrative Agent poses a
conflict of interest for such institution or (ii) otherwise within
forty-five (45) days after written notice is given of the retiring
Administrative Agent’s resignation under this Section 12.07
no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on (x) the circumstance
described in clause (i) above, the date of such resignation
of, and (y) otherwise such 45th day, (A) the retiring
Administrative Agent’s resignation shall become effective, (B) the
retiring Administrative Agent shall thereupon be discharged from its
duties



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and obligations under the Loan Documents and (C) the Required
Lenders shall thereafter perform all duties of the retiring
Administrative Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Administrative
Agent as provided above.



          3. Representations and Warranties. The Borrowers hereby represent and warrant to each
Lender, each Issuing Bank and the Administrative Agent that (a) all of the representations and
warranties of the Borrowers and the Borrower Subsidiaries in the Credit Agreement and in any other
Loan Document are true and correct in all material respects on and as of the First Amendment
Effective Date as though made to each Lender, each Issuing Bank and the Administrative Agent on and
as of such date (other than representations and warranties which expressly speak as of a different
date, which representations shall be made only on such date) and (b) as of the First Amendment
Effective Date, no Event of Default or Default has occurred and is continuing.




          4. First Amendment Effective Date. This First Amendment shall become effective as of
the date first above written (the “First Amendment Effective Date”) upon the satisfaction
of the following conditions:




          4.1 The Administrative Agent shall have received counterparts hereof executed by the
Borrowers, the Administrative Agent and each Lender;




          4.2 Each of the representations and warranties contained in this First Amendment shall be true
and correct in all material respects on and as of the First Amendment Effective Date;




          4.3 As of the First Amendment Effective Date, no Event of Default or Default shall have
occurred and be continuing; and




          4.4 The Borrowers shall have reimbursed the Administrative Agent for the reasonable fees,
costs and expenses incurred by or owing to it in connection with this First Amendment, and all
other outstanding fees and expenses incurred prior to the First Amendment Effective Date, in each
case which are payable under Section 14.02 of the Credit Agreement.




          5. Miscellaneous.




          5.1 This First Amendment is a Loan Document. The headings herein are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.




          5.2 On and after the First Amendment Effective Date, each reference in the Credit Agreement to
“this Agreement”, “hereunder”, “hereof” or words of like import, and each reference in the other
Loan Documents to the Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. Except to the extent specifically amended or modified hereby, all of the terms of
the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and
effect and are hereby ratified and confirmed in all respects.




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          5.3 The execution, delivery and effectiveness of this First Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of any Lender, the
Issuing Bank or the Administrative Agent under the Credit Agreement or any of the Loan Documents,
nor obligate any Lender, the Issuing Bank or the Administrative Agent to agree to similar
amendments in the future.




          6. Counterparts; Facsimile Delivery. This First Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument. Delivery of an
executed counterpart of this First Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.




          7. GOVERNING LAW. THIS FIRST AMENDMENT, AND ALL ISSUES RELATING TO THIS FIRST
AMENDMENT, INCLUDING THE VALIDITY, ENFORCEABILITY, INTERPRETATION OR CONSTRUCTION OF THIS FIRST
AMENDMENT OR ANY PROVISION HEREOF, SHALL BE GOVERNED BY, AND SHALL BE DETERMINED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




[Signature pages follow]



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          IN WITNESS WHEREOF, the Administrative Agent, the Issuing Bank, the Lenders and the Borrowers
have caused this First Amendment to be executed by their respective officers thereunto duly
authorized as of the date first above written.




	 	 	 	 	 
	 	NMHG HOLDING CO.

 	 
	 	By:  	  /s/ Jeffrey C. Mattern
 	 
	 	 	Name:  	Jeffrey C. Mattern 	 
	 	 	Title:  	Treasurer 	 
	 
	 	NACCO MATERIALS HANDLING GROUP, INC.

 	 
	 	By:  	  /s/ Jeffrey C. Mattern
 	 
	 	 	Name:  	Jeffrey C. Mattern 	 
	 	 	Title:  	Treasurer 	 
	 
	 	NACCO MATERIALS HANDLING LIMITED

 	 
	 	By:  	  /s/ Jeffrey C. Mattern
 	 
	 	 	Name:  	Jeffrey C. Mattern 	 
	 	 	Title:  	Treasurer 	 
	 




	 	 	 	 	 
	 	NACCO MATERIALS HANDLING B.V.

 	 
	 	By: NACCO MATERIALS HANDLING GROUP, LTD.,
	 
	 	  	 
its Managing Director
 

	 	By:  	  /s/ Jeffrey C. Mattern
 	 
	 	 	Name:  	Jeffrey C. Mattern 	 
	 	 	Title:  	Treasurer 	 
	 



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	 	CITICORP NORTH AMERICA, INC., as Administrative Agent,
as Issuing Bank, as Swing Loan Bank and as a Domestic Lender


 	 
	 	By:  	  /s/ Miles D. McManus
 	 
	 	 	Name:  	Miles D. McManus 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	CITIBANK INTERNATIONAL PLC, as
Multicurrency Lender and as Overdraft Line Bank


	 
	 	By:  	  /s/ Miles D. McManus
 	 
	 	 	Name:  	Miles D. McManus 	 
	 	 	Title:  	Authorized Signatory 	 
	 



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	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as a Domestic Lender

 	 
	 	By:  	  /s/  Dwayne L. Coker
 	 
	 	 	Name:  	Dwayne L. Coker 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 



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	 	U.S. BANK NATIONAL ASSOCIATION, as a Domestic Lender

 	 
	 	By:  	  /s/  Scott J. Bell
 	 
	 	 	Name:  	Scott J. Bell 	 
	 	 	Title:  	Senior Vice President 	 
	 



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	 	KEYBANK NATIONAL ASSOCIATION, as a Domestic Lender

 	 
	 	By:  	  /s/  Nadine M. Eames
 	 
	 	 	Name:  	Nadine M. Eames 	 
	 	 	Title:  	Vice President 	 
	 



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	 	WELLS FARGO FOOTHILL, INC., as a Domestic Lender

 	 
	 	By:  	  /s/  Patrick McCormack
 	 
	 	 	Name:  	Patrick McCormack 	 
	 	 	Title:  	Assistant Vice President 	 
	 



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	 	GMAC COMMERCIAL FINANCE LLC, as a Domestic Lender

 	 
	 	By:  	  /s/ Christopher Gauch
 	 
	 	 	Name:  	Christopher Gauch 	 
	 	 	Title:  	Vice President 	 
	 



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