Exhibit 10.1



 






Exhibit 10.1




AMENDED AND RESTATED CREDIT AGREEMENT




     This
Amended and Restated Credit Agreement dated as of December 19, 2005 (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”), 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, 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”) and Citigroup Global Markets Inc. (“CGMI”) as sole lead arranger (“Sole
Lead Arranger”) and sole bookrunner (“Sole Bookrunner”).



PRELIMINARY STATEMENT




     The Borrowers, certain of the Lenders and the Administrative Agent are parties to a Credit
Agreement dated as May 9, 2002 (as amended or otherwise modified prior to the date hereof, the
“Previous Agreement”). The Borrowers, the Lenders, the Administrative Agent and the other
parties hereto wish to amend and restate the Previous Agreement in its entirety pursuant to the
terms hereof. Upon the effectiveness hereof, and subject to the terms and conditions set forth
herein, the Previous Agreement is hereby so amended and restated.



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 Ernst & Young LLP 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 $25,000,000 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



-2-









 




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.



     “Anti-Money Laundering Laws” means the BSA and all applicable Requirements of Law and
government guidance on BSA compliance and on the prevention and detection of money laundering
violations under 18 U.S.C. §§ 1956 and 1957.



     “Anti-Terrorism Laws” means the OFAC Laws and Regulations, the Executive Orders and
the USA Patriot Act.



     “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 of the Compliance Certificate for the period ending December 31, 2005, 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 December 31, 2005, 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



-3-









 




Unused Commitment Fee Rate to the maximum per annum rates for the applicable period set forth
on Exhibit A 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 on Exhibit A 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.



     “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 May 9, 2002, any excess amounts shall only be permitted as
allowed in accordance with Section 9.01(q).



     “Australian Credit Facility Sublimit” means 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



-4-









 




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 Subsidiaries” means NMHG Australia Holdings Pty Ltd., 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 Coy & Sons Pty
Limited, Yale-LTC Industrial Trucks Pty Limited, LTC Forklift Rentals Pty Limited., and any other
Foreign Subsidiaries organized under the laws of Australia from time to time 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
and, (d) 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.



     “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §§ 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.



-5-









 





     “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.



     “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.



     “BSA” means the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq.



     “Business Activity Report” means, to the extent still required in the applicable
jurisdiction to enforce rights in or against Collateral or obligors of Collateral located therein,
(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, (c) expenditures made with the proceeds from the sales of



-6-









 




similar Property to the extent such sales and reinvestments are otherwise permitted under this
Agreement, and (d) expenditures in an amount not to exceed $22,000,000 in such period made in
connection with the Global Design and Product Development Program.




     “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) repurchase agreements on obligations of the type specified in clause (a)
above with respect to which, at the time of acquisition, the senior long-term debt of the party
agreeing to repurchase such obligations is rated AAA (or better) by Standard & Poor’s Corporation
(or its successors) or Aaa (or better) by Moody’s Investors Service, Inc. (or its successors); (c)
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
Moody’s Investors Service, Inc. (or its successors); (d) 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 Moody’s
Investors Service, Inc. (or its successors); (e) 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 Moody’s Investors Service, Inc. (or its successors) and
Standard & Poor’s Corporation (or its successors); or (f) securities of money market funds rated Am
(or better) by Standard & Poor’s Corporation (or its successors) or A (or better) by Moody’s
Investors Service, Inc. (or its successors); provided, that the maturities of any such Cash
Equivalents referred to in clauses (a), (c), (d) and (e)
shall not exceed 270 days.



-7-









 





     “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).



     “CGMI” is defined in the preamble hereto.



     “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) 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).



     “CIP Regulations” is defined in Section 12.10.



     “Citibank” means Citibank, NA, a national banking association.



-8-









 





     “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 December 19, 2005.



     “Closing List” is defined in Section 5.01(a)(i).



     “CNAI” is defined in the preamble.



     “CNAI Affiliates” means all Affiliates of CNAI.



     “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 bill of
lading executed by the issuer of such bill of lading and the agent for the destination named in
such bill 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.



-9-









 





     “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
presentation of documents evidencing the sale or shipment of goods purchased by such Borrower in
the ordinary course of its business.



     “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
Commitment (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 mark 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
mark to market provision for derivative instruments, and (vi) cash



-10-









 




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 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.



-11-









 





     “Converted Domestic Borrowing Base Excess” has the meaning set forth in Section
2.01(a)(ii).



     “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
(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 Lender; (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; 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. 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.



     “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



-12-









 




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 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.



-13-









 





     “Defaulting Lender” is defined in Section 3.02(b)(iv).



     “Designated Person” is defined in Section 6.01(ff).



     “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).



     “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 May
9, 2002 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 and NMHG.



     “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) $75,000,000 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



-14-









 






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.




     “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 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, that (i) at no time shall the aggregate Domestic Commitments of all
Domestic Lenders available to extend credit under the Domestic Facility exceed $175,000,000 less
any permanent reduction made pursuant to Section 3.01, (ii) as of the Closing Date, the
aggregate Domestic Commitments of all Domestic Lenders available to extend credit under the
Domestic Facility shall equal $75,000,000, (iii) at no time shall any Lender be required to hold
Obligations (whether through direct extensions of credit, through participation interests or a
combination of both) in excess of the amount set forth opposite such Domestic Lender’s name on
Schedule 1.01.1 under the caption “Domestic Commitment plus Additional Multicurrency Participation
Obligation”, and (iv) at no time shall the aggregate amount of credit required to be extended to
the Borrowers under the Domestic Facility and the Multicurrency Facility exceed $175,000,000.



     “Domestic Concentration Account” means account number 30508139, 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.



-15-









 





     “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.



     “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 Jones
Markets Service (formerly known as Telerate) Page 3750 or Dow Jones 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






-16-









 







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 May 9, 2002
by and between the Domestic Credit Parties and the Administrative Agent, 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),



-17-









 





     (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 bill of lading and the agent at the destination named in such bill
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
related bill of lading and the agent at the destination named in such bill 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;



-18-









 






   (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;




   (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;



-19-









 






   (xiv) The sale of which is not on a “shipped not billed”, bill-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 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 to the extent such state
requires such filing in order to enforce rights in or against Collateral or obligors of
Collateral located 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,



-20-









 





     (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 bill 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 bill 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 bill 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 bill 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, and (C) as to which the related bill of lading (or other applicable document
issued by a transporter under applicable law with respect to Inventory in transit) is not a
negotiable bill 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;



-21-









 






   (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) (A) With respect to Receivables purchased by the UK Borrower pursuant to the
Receivables Sale Agreements or reconveyed to the UK Borrower by Bank of Scotland, all
actions required by Section 5.01(m) have been taken, true sale opinions with respect
to such transfers have been delivered to the satisfaction of the Administrative Agent and
the representations and warranties set forth in Section 6.01(dd) are true and
correct in all respects, and (B) with respect to any Receivables purchased by the UK
Borrower from the Italian Receivables Seller pursuant to a Receivables Sale Agreement, the
UK Borrower provides at least 45 days’ prior written notice to the Administrative Agent that the UK Borrower seeks to include such Receivables as Eligible Foreign
Receivables (which notice shall include the effective date from which the UK Borrower seeks
to include such Receivables as Eligible Foreign Receivables and a description in reasonable
detail of the procedures by which the UK Borrower and the Italian Receivables Seller intend
to satisfy the requirements of clause (i) or (ii) below, as applicable) and (i) all the
relevant notices to the account debtors (complying with all requirements of Italian law),
together with a written or electronic instrument bearing a date certain at law, have been
delivered to such account debtors (in compliance with all requirements of Italian law), or
(ii) in the event of any change in Italian law after the Closing Date, the UK Borrower
provides evidence in form and substance reasonably satisfactory to the Administrative Agent
that (x) the assignment of the Receivables originated by the Italian Receivables Seller to
the UK Borrower is valid and enforceable, in accordance with English, Italian and any other
applicable laws, against the Italian Receivables Seller, the UK Borrower, any relevant
account debtor and all relevant third parties (including, without limitation, any receiver
in bankruptcy, liquidator, administrative receiver or other similar official under any
applicable law of the Italian Receivables Seller, the UK Borrower and such account debtor)
and (y) the Administrative Agent has a valid and enforceable security interest in such
Receivables, in accordance with, English, Italian and any other applicable laws, against the
Italian Receivables Seller, the UK Borrower, any relevant account debtor and all relevant
third parties (including, without limitation, any receiver in bankruptcy, liquidator,
administrative receiver or any similar official under any applicable law of the Italian
Receivables Seller, the UK Borrower and such account debtor);




   (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;




   (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;



-22-









 






   (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;




   (xvii) The sale of which is not on a “shipped not billed”, bill-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;



-23-









 






   (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 to the
extent such state requires such filing in order to enforce rights in or against Collateral
or obligors of Collateral located 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 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)



-24-









 




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 May 9,
2002 by and between the UK Borrower and the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.



     “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



-25-









 




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.



     “Euro Overdraft Accounts” means account number 8753733 maintained with Citibank in
London, England, in the name of the Netherlands Borrower and account number 8753725 maintained with
Citibank in London, England, in the name of the UK Borrower.



     “Euro Subfacility” means the subfacility of the Multicurrency Facility for which
Borrowings are only available in Euros.



-26-









 





     “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.



     “Excess Borrowing Base Capacity” means, with respect to the Credit Facilities at any
particular time, an amount equal to (a) the sum of the Domestic Borrowing Base and the
Multicurrency Borrowing Base at such time, minus (b) the aggregate amount of any
Availability Reserves applicable to the Credit Facilities in effect at such time, minus (c)
the aggregate amount of the Excess Currency Agreement Exposure or, at any time when an Event of
Default has occurred and is continuing, the Currency Agreement Exposure, in each case, of all
Borrowers at such time, minus (d) the aggregate amount of the Interest Rate Contract
Exposure of all Borrowers at such time, minus (e) the aggregate Credit Facility
Outstandings at such time.



     “Excess Currency Agreement Exposure” means, at any particular time, an amount equal to
the excess, if any, of (a) the aggregate Currency Agreement Exposure at such time for all
Borrowers, over (b) $5,000,000. Excess Currency Agreement Exposure shall be allocated to
the Domestic Borrowers and the Multicurrency Borrowers ratably in accordance with their respective
shares of the aggregate Currency Agreement Exposure at such time.



     “Executive Orders” is defined in Section 6.01(ff).



     “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,



-27-









 




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
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 (a) any Financing Affiliate, (b) any financial
institution listed on Schedule 1.01.9, (c) solely with respect to Lease Finance
Transactions to which the Australian Subsidiaries are a party, any financial institution and (d) 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 (a) the International Operating Agreement, dated April
15, 1998, between NMHG and General Electric Capital Corporation, (b) the Restated and Amended Joint
Venture and Shareholders Agreement, dated April 15, 1998, between NMHG and General Electric Capital
Corporation and (c) any agreement or program entered into with a Financial Institution on
substantially the same terms as the International Operating Agreement referred to in clause
(a) above or otherwise as consented to by the Administrative Agent, such consent not to be
unreasonably withheld, as any of the same may be (x) 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 (y) 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.



-28-









 





     “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 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 such Borrowing, (b) that are Multicurrency Loans denominated in Euros, the second Business
Day prior to the first day of the Interest Period for any such Borrowing and (c) that are
Multicurrency Loans denominated in Sterling, the first day of the Interest Period for any such
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



-29-









 






   (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 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 May 9, 2002 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.



-30-









 





     “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 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 May 9, 2002 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 May 9, 2002 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).



-31-









 





     “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).



     “Global Design and Product Development Program” means the proposed program of the
Borrowers and Borrower Subsidiaries involving the design, development and launch of a new range of
internal combustion powered fork lift trucks and the restructuring of fabrication, manufacturing
and assembly operations of the Borrowers and Borrower Subsidiaries to accommodate the production of
such new fork lift trucks.



     “Governmental Authority” means any nation or government, any federal, state, province,
territory, regional, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to
government.



     “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



-32-









 




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 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 November 1, 2005, 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



-33-









 




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).




     “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



-34-









 




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;


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 CNAI, provided, that CNAI may, in its discretion, arrange
for one or more Letters of Credit to be issued by an Affiliate of CNAI, in which case the term
“Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.



-35-









 





     “Italian Pledges” means any and all Pledge Agreements, Foreign Security Agreements or
other Security Documents creating a Lien under the laws of Italy.



     “Italian Receivables Seller” means NACCO Materials Handling S.p.A. (f/k/a NACCO
Materials Handling S.R.L.), a joint stock company incorporated under the laws of Italy, registered
with the Register of Enterprises of Modena under No. 14801.



     “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 and each other institution
which is a signatory hereto, and (b) at any other given time each other institution which is a
party hereto as a Lender, whether as a signatory hereto or pursuant to an Assignment and
Acceptance.



     “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 Cash Collateralization Conditions” means, in connection with the
extension of the term of any Letter of Credit beyond the termination date required therefor under
clauses (A) and (B) of Section 2.02(a)(iii), (i) (A) the applicable Borrowers’ remittance
to the Administrative Agent of an amount in immediately available funds, denominated in the same
currency in which the Letter of Credit is denominated (or, if approved by the Administrative Agent,
in a U.S. dollar equivalent thereof) equal to at least (x) 105% of the face amount of such Letter
of Credit if such Letter of Credit is issued under the Domestic Facility or (y) 110% of the face
amount of such Letter of Credit if such Letter of Credit is issued under the Multicurrency
Facility, and (B) the deposit of such amount into a Cash Collateral Account in which the
Administrative Agent has a first priority perfected security interest and which Cash Collateral
Account otherwise complies with the requirements of the Loan Documents with respect such types of
accounts, or (ii) the delivery by the applicable Borrowers of an irrevocable standby letter of
credit issued by an issuing bank reasonably acceptable to the Administrative Agent in a form
reasonably acceptable to the Administrative Agent, including, without limitation, the draw
mechanics set forth therein, in a face amount equal to the amount of cash that would be required to
be deposited by the Borrowers pursuant to clause (i) of this definition.



     “Letter of Credit Fee” is defined in Section 4.03(a).



-36-









 





     “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, as of the last day of each fiscal quarter, the ratio of (a) an
amount equal to (i) Financial Covenant Debt at such date, minus (ii) Unrestricted Cash On
Hand at such date to (b) 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, 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



-37-









 




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.



     “Lists” is defined in Section 6.01(ff).



     “Loan Documents” means this Agreement, the Notes, the Domestic Borrower Guaranty, the
Multicurrency Borrower Guaranty, each Foreign Guaranty, the Security Documents, the Proposal and
Fee Letter, 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 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.



-38-









 





     “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 Excess Currency Agreement Exposure
or, at any time when an Event of Default has occurred and is continuing, the Currency
Agreement Exposure, in each case 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; minus (E) the Converted Domestic Borrowing Base Excess allocated to the
Multicurrency Facility pursuant to Section 2.01(a)(ii);




   (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, plus (B) the Converted Domestic Borrowing Base Excess then allocated to
the Multicurrency Facility pursuant to Section 2.01(a)(ii) (with the understanding
that the addition of Converted Domestic Borrowing Base Excess at no time shall result in the
Maximum Credit Amount for the Multicurrency Facility exceeding the Multicurrency Commitment
then in effect), minus (C) the amount of any Availability Reserves applicable to the
Multicurrency Facility in effect at such time, minus (D) the amount of the Excess
Currency Agreement Exposure or, at any time when an Event of Default has occurred and is
continuing, the Currency Agreement Exposure, in each case of the Multicurrency Borrowers at
such time, minus (E) 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).



-39-









 





     “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).



     “Monthly Borrowing Base Delivery Date” is defined in Section 7.05(a).



     “Multicurrency Borrower Guaranty” means (a) the Multicurrency Borrower Guaranty dated
as of May 9, 2002 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.



-40-









 





     “Multicurrency Commitment” means, as to the 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) and to participate in Letters
of Credit Issued for the account of the Multicurrency Borrowers, in each case pursuant to
Section 2.03, in an aggregate principal amount outstanding not to exceed the amount set
forth opposite the 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, that (i) at no time shall the Multicurrency Commitment exceed $100,000,000 less
any permanent reduction made pursuant to Section 3.01, (ii) at no time shall the aggregate
amount of credit required to be extended to the Borrowers under the Domestic Facility and the
Multicurrency Facility exceed $175,000,000, and (iii) the Multicurrency Lender’s outstanding and
funded exposure under the Multicurrency Commitment shall be reduced by the aggregate amount of
funded participations held by the Domestic Lenders as required pursuant to Section 2.03.



     “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 May 9, 2002 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 May
9, 2002 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 May 9, 2002 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 Lender
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 Citibank International plc, together with its successors
and assigns.



     “Multicurrency Lender Fronting Fee” has the meaning set forth in Section
4.03(c).



-41-









 





     “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 Jones Markets Service (formerly known as Telerate) Page
3750 or Dow Jones 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 Lender 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.



     “NACCO Materials Handling S.R.L.” means the Italian Receivables Seller.



-42-









 





     “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 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; provided, however, that Net Cash Proceeds of Issuance of Equity Securities or
Indebtedness shall not include net proceeds of up to $25,000,000 in any four fiscal quarter period
resulting from (x) the issuance by NMHG Holding of equity Securities to the Parent or (y) capital
contributions made by the Parent (directly or indirectly) to NMHG Holding or any of the other
Borrowers.



     “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).



-43-









 





     “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.



     “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).



     “OFAC” is defined in Section 6.01(ff).



     “OFAC Laws and Regulations” is defined in Section 6.01(ff).



-44-









 





     “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 Lender, the
Specified Foreign Currency.



     “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 $20,000,000.



     “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 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, (x) the termination and surrender for cancellation of such Letter
of Credit or (y) satisfaction and compliance with terms of Section 2.02(a)(iii) with respect to
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



-45-









 




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.



     “Parent Subordinated Indebtedness” means unsecured Indebtedness owing by any Borrower
or Borrower Subsidiary to the Parent and unsecured guaranties thereof by any other Borrower or
Borrower Subsidiary; provided that any such Indebtedness or guaranty issued by a Credit Party shall
be subordinated in right of payment to the Obligations and otherwise on terms and conditions
satisfactory to the Administrative Agent; provided, further, that, in the event that any Borrower
Subsidiary which is not a Credit Party guaranties or becomes jointly and severally liable for any
Parent Subordinated Indebtedness issued by any Credit Party, such Borrower Subsidiary, as a
condition of issuing such guaranty or becoming jointly and severally liable for such Indebtedness,
shall become a Guarantor with respect to (i) if such Credit Party is a Domestic Credit Party, all
Obligations guaranteed by the Domestic Guarantors, (ii) if such Credit Party is a Multicurrency
Borrower, all Obligations of such Multicurrency Borrower or (iii) if such Credit Party is a Foreign
Guarantor, all Obligations guaranteed by such Foreign Guarantor.



     “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.



-46-









 





     “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 Term B Loan Intercreditor Agreement” means any intercreditor agreement
entered into by the Administrative Agent pursuant to Section 12.02, as the same may from
time to time be amended, restated or otherwise modified from time to time, so long as such
intercreditor agreement is in form and substance reasonably acceptable to the Administrative Agent.



     “Permitted Term B Loan Documents” means all of the documents, instruments and
agreements documenting or evidencing the Permitted Term B Loans, as any of the foregoing may from
time to time be amended, restated or otherwise modified from time to time.



     “Permitted Term B Loans” means term B loans incurred by one or more of the Domestic
Borrowers so long as the following conditions are satisfied to the satisfaction of the Administrative Agent prior to or concurrently with the incurrence of the Indebtedness
evidenced by such term B loans: (i) such Indebtedness does not exceed an aggregate principal amount
equal to $250,000,000, (ii) the holders of such Indebtedness shall be subject to the Permitted Term
B Loan Intercreditor Agreement, (iii) the Permitted Term B Loan Documents shall be reasonably
acceptable to the Administrative Agent, and (iv) the proceeds of such term B loans (net of any
fees, costs and expenses incurred in connection therewith) shall be used to reduce amounts
outstanding under the Senior Notes, to pay any prepayment premiums in connection therewith and to
pay any other fees, costs and expenses incurred in connection therewith.



     “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.



     “Pledge Agreements” means (a) the Pledge Agreement dated as of May 9, 2002 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 May 9, 2002
by the Foreign Credit Parties specified on the Closing List in favor of the Administrative



-47-









 




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.



     “Previous Agreement” has the meaning set forth in the Preliminary Statement 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 September 30, 2005, and giving effect to the extensions of credit contemplated hereby.



     “Pro Rata Share” means (a) with respect to any Lender and any Credit Facility
(including such Lender’s obligation to participate in Multicurrency Loans under Section 2.03), 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 (or, when determining a Lender’s participation obligation in respect of Multicurrency
Loans, such Lender’s Commitment under the Domestic Facility divided by the aggregate amount of all
Commitments under the Domestic Facility), 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 (with the same methodology described in clause (a) used to
determine participation obligations in respect of the Multicurrency Facility); 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 (with participation obligations in respect
of the Multicurrency Facility constituting Credit Facility Outstandings when determining “Pro
Rata Share” in respect of Multicurrency Facility related items) by (y) the aggregate amount of
all Credit Facility Outstandings (with participation obligations in respect of the Multicurrency
Facility constituting Credit Facility Outstandings when determining “Pro Rata Share” in
respect of Multicurrency Facility related items).



     “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).



     “Proposal and Fee Letter” means the Proposal and Fee Letter dated November 15, 2005 by
and among CNAI and the Borrowers.



-48-









 





     “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 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.



-49-









 





     “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.



     “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.



-50-









 





     “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).



     “Required Evidence of Insurance” is defined in Section 8.05.



     “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 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) (including participations of Domestic Lenders held in Multicurrency Loans) 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, including,
without limitation, Parent Subordinated Indebtedness, and (e) any payment or prepayment of
principal of, premium, if any, or interest, fees or other charges on or with respect



-51-









 




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).



     “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.



     “Semi-Monthly Borrowing Base Delivery Date” is defined in Section 7.05(b).



     “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 May 9, 2002.



     “Senior Notes” means the “Notes” and “Exchange Notes” under and as defined in the
Senior Note Indenture.



     “Sole Bookrunner” is defined in the preamble.



     “Sole Lead Arranger” is defined in the preamble.



-52-









 





     “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.




     “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.



     “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 8022232 maintained with
Citibank in London, England, in the name of the UK Borrower.



-53-









 





     “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, $40,000,000
and (ii) with respect to the Sterling Subfacility, $40,000,000, 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).



     “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).



     “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, as the same may be amended,
restated, supplemented or otherwise modified from time to time.



     “Taxes” is defined in Section 3.04(a).



     “Termination Date” means the earliest to occur of (x) the date of termination of the
Commitments pursuant to the terms hereof, (y) December 19, 2010, and (z) the date which is sixty
days prior to either the scheduled date on which the Senior Notes are required to be fully repaid
or the initial maturity date of any Indebtedness that refinances such Senior Notes in full
(including any Permitted Term B Loans).



     “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



-54-









 




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.



     “Trademark Security Agreements” means (a) the Trademark Security Agreement dated as of
May 9, 2002 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 May 9, 2002 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.



     “Unrestricted Cash On Hand” means, as of any date of determination, an amount equal to
(a) the amount of immediately available cash and Cash Equivalents on deposit in Bank Accounts
reported on the most recently delivered monthly Financial Statement, minus (b) all such
cash and Cash Equivalents which is the subject of any Lien or right of setoff, whether directly, as
proceeds of other property subject to a Lien or right of setoff, or otherwise (other than a Lien in
favor of the Administrative Agent or a right of setoff with respect to Bank Accounts with respect
to which the Administrative Agent has control (as defined in the Uniform Commercial Code)),
minus (c) all such cash or Cash Equivalents which is held in any deposit or securities
account which is subject to any Lien in favor of any Person other than the Administrative Agent.



     “Unused Commitment Fee” is defined in Section 4.03(b).



-55-









 





     “USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(2001), as amended.



     “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.



     “Weekly Borrowing Base Delivery Date” is defined in Section 7.05(c).



     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.



     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



-56-









 




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) (i) Revolving Loans. Subject to the terms and conditions set forth herein, (A)
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, (1) 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 (2) 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 (B) pursuant to the Multicurrency Commitment, the 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 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, (1) 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, (2) the aggregate Credit
Facility Outstandings owing to the Lenders (after giving effect to any participation purchased by
and from the Lenders 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, (3) 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 (4) 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 Lender, 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



-57-









 




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).




     (ii) Application of Converted Domestic Borrowing Base Excess. Upon at least seven
days’ prior written notice to the Administrative Agent, the Multicurrency Borrowers may elect to
apply all or a portion of the excess of the amount of (x) the Domestic Borrowing Base as in effect
based upon the most recently delivered Borrowing Base Certificate over (y) the Credit Facility
Outstandings for the Domestic Facility as of the proposed date of conversion, to support additional
Borrowings under the Multicurrency Facility. Such excess amount shall constitute the
“Converted Domestic Borrowing Base Excess”. The Multicurrency Borrowers shall not be
entitled to make such election if such election would result in the remaining portion of the
Domestic Borrowing Base being less than the Credit Facility Outstandings for the Domestic Facility
or if an Event of Default would result therefrom or is then outstanding. Nothing constituting
Converted Domestic Borrowing Base Excess shall be available to support Credit Facility Outstandings
under the Domestic Facility. Upon at least seven days’ prior written notice to the Administrative
Agent, the Multicurrency Borrowers may return all or a portion of the Converted Domestic Borrowing
Base Excess to the Domestic Borrowing Base in support of Credit Facility Outstandings under the
Domestic Facility so long as such returned amount is not required to support Credit Facility
Outstandings under the Multicurrency Facility.



     (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



-58-









 






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. 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.



     (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 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). 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



-59-









 




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 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 1:30 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



-60-









 






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 the Multicurrency Lender
shall, not later than 2:00 p.m. (London time) one Business Day before the date of 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 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 (and



-61-









 






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 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.



-62-









 






   (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 the 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, the Multicurrency Lender shall deposit in its Funding Account in the
appropriate Specified Foreign Currency an amount equal to 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, the 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). The 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), the 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) all of the outstanding Overdraft Loans; provided, that all
interest 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 Lender purchasing the same from
and after such date of purchase.




   (ii) If and to the extent the 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 the Multicurrency Lender on such Overdraft Settlement
Date pursuant to this Section 2.01(h), the Multicurrency Lender



-63-









 






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:




   (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



-64-









 






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;
provided, that a Letter of Credit may have an expiration date later than the
Business Day next preceding the Termination Date or any date within one year after the
Issuance date therefor so long as, with respect to any Letter of Credit that would expire
after the Termination Date, the Borrowers, at least five Business Days prior to the
Termination Date, satisfy the Letter of Credit Cash Collateralization Conditions in respect
of such Letter of Credit; provided, further, that, with respect to any
Letter of Credit which remains outstanding following the Termination Date, no such amount
posted as collateral in respect of any such Letter of Credit shall be returned to the
Borrowers until such Letter of Credit has expired or been replaced or all Obligations with
respect to such Letter of Credit have been paid in full or terminated.




   (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



-65-









 






   (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



-66-









 






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



-67-









 






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



-68-









 






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.



-69-









 





     (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, (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, the Multicurrency Lender 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,



-70-









 






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 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) above, for the gross negligence or willful misconduct of
the Issuing 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 Multicurrency Facility.



     (a) Each Domestic Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Multicurrency Lender an unfunded participation in the Credit Facility Outstandings of the
Multicurrency Lender under the Multicurrency Facility, including without limitation (A) the
Multicurrency Loans, (B) the participations purchased by the Multicurrency Lender 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). In
each case, each Lender’s participation shall be equal to such Lender’s Pro Rata Share thereof;
provided, that no participation shall result in (x) such Lender’s Pro Rata Share of Credit Facility
Outstandings under the Domestic Facility exceeding its Domestic Commitment (without giving effect to its required Multicurrency Facility participation
obligation hereunder) and (y) such Lender’s Pro Rata Share of Credit Facility Outstandings under
the Domestic Facility and the Multicurrency Facility exceeding the amount set forth in Schedule
1.01.1 hereto opposite such Domestic Lender’s name under the heading “Domestic Commitment plus
Additional Multicurrency Participation Obligation”.



     (b) By 12:00 p.m. New York time 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 Domestic Lender of the aggregate principal amount of all
outstanding Loans, Reimbursement Obligations and Protective Advances of the



-71-









 




Multicurrency Lender
(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 to the extent not reimbursed by the Multicurrency Borrowers as
required under Section 3.02(a)) as necessary (the “Participation Amount”). Each
Domestic Lender shall, not later than 3:00 p.m. New York time, on the first 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




   (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



-72-









 




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 Lender Multicurrency Loan Notes in a principal amount
equal to the maximum amount of the Multicurrency 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
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



-73-









 




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 3.01(b)(i)
after giving effect to such reduction. 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 Commitment or permanently reduce in part the Multicurrency Commitment,
provided that the Multicurrency Borrowers shall have made or caused to be



-74-









 






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
Commitment, its Pro Rata Share of the applicable Credit Facility (with the understanding
that any such reduction in respect of a Domestic Lender shall result in a reduction of that
portion of the Domestic Lender’s Domestic Commitment identified as “Domestic Commitment plus
Additional Multicurrency Participation Obligation” in Schedule 1.01.1), and (y) with
respect to a reduction of the Domestic Commitments, their aggregate Pro Rata Share of all
Credit Facilities (with the understanding that any such reduction in respect of a Domestic
Lender shall result in a reduction of that portion of the Domestic Lender’s Domestic
Commitment identified as “Domestic Commitment plus Additional Multicurrency Participation
Obligation” in Schedule 1.01.1). 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 2:00 p.m. (London time), with respect to
payments under the Multicurrency Facility, on each Business Day, from funds on deposit



-75-









 






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) Subject to the terms and conditions of the Term B Loan Documents and the Term B
Loan Intercreditor Agreement, 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



-76-









 






of such Net Cash Proceeds of Sale, with such 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) Subject to the terms and conditions of the Term B Loan Documents and the Term B
Loan Intercreditor Agreement, 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 Commitment 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 the amount of the
Multicurrency Commitment of the Multicurrency Lender before and after such reallocation shall not
change. After receiving a Subfacility Reallocation Request, the Administrative Agent shall notify
the Multicurrency Lender of such Subfacility Reallocation Request.



-77-









 





     (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
amount of the Multicurrency Commitment would exceed the maximum amount of the Multicurrency
Commitment in effect at such time (determined in accordance with the definitions of “Commitments”
and “Multicurrency Commitment”), or (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”. 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), the aggregate Pro Rata Share under all
Credit Facilities of a Lender shall not change. 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; Payment of Foreign Exchange Costs. 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 2:00 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 due. Thereafter, payments in respect of any Swing Loans received by the
Administrative Agent shall be distributed to the Swing Loan Bank,



-78-









 




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 2:00 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. If
a Domestic Lender funds its participation interest in any Multicurrency Loan in Dollars after the
acceleration of the Obligations as contemplated in Section 2.03, and additional amounts are
required to be remitted to the Multicurrency Lender as a result of foreign exchange costs (such as
the conversion of Dollars into the Optional Currency in which the participation in Credit Facility
Outstandings being purchased is denominated), then the Multicurrency Borrowers, on the date such
participation is funded by such Domestic Lender, shall pay to the Multicurrency Lender such
additional amounts.




     (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.
Notwithstanding the foregoing or anything to the contrary set forth herein, prior to the
date on which the Domestic Lenders fund their participation interests in Credit Facility
Outstandings under the Multicurrency Facility, interest on Multicurrency Loans shall be
apportioned as follows in consideration for the participation therein: the Domestic Lenders
shall receive that portion of interest equal to the margin component thereof (such as the
Applicable Fixed Rate Margin on Fixed Rate Loans) and the Multicurrency Lender shall receive
that portion of interest equal to the Multicurrency LIBO Rate or Floating Rate, as then
applicable. Subsequent to the date on which the Domestic Lenders acquire funded
participation interests in the Multicurrency Facility, interest on Multicurrency Loans shall
be apportioned among the Domestic Lenders based upon their Pro Rata Shares thereof with no distinction made between the Multicurrency LIBO Rate or Floating
Rate, as applicable, and the margin added thereto.




   (ii) 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



-79-









 






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 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.




   (iii) 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;



-80-









 






(C) third, to pay interest on, and the principal of, any Swing Loan or
Overdraft Loan, to pay to the Multicurrency Lender any foreign exchange costs
arising in connection with a Lender’s funding of its participation in a
Multicurrency Loan that is not reimbursed by the applicable Borrowers as required
under Section 3.02(a), and, to the extent the Participation Amount is not
funded by Lenders on or prior to the Participation Settlement Date in accordance
with Section 2.03(b), to the Multicurrency Lender that portion of principal
Obligations outstanding under the Multicurrency Facility so not funded;




(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;




(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 (in a manner described in Section
11.02(b), if applicable) Obligations in respect of (1) Interest Rate Contracts
permitted hereunder to which the Administrative Agent, any Lender or any Affiliate
thereof is a party and (2) foreign exchange services (including Currency Agreements)
permitted hereunder provided to any Borrower or Borrower Subsidiary by the
Administrative Agent, any Lender or any Affiliate thereof;




(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






-81-









 







(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.




     (iv) 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
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



-82-









 




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).




     (v) 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
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



-83-









 






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
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 the Multicurrency Lender, 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 Lender) 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



-84-









 




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 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 Lender, 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



-85-









 




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 the Multicurrency Lender, the 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 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



-86-









 






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
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



-87-









 






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 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) the 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



-88-









 




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 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



-89-









 




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 39079128, 394-189-765, 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:




   (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



-90-









 






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
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



-91-









 






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) 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;



-92-









 






   (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 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.




   (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



-93-









 






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 (or, in
the case of continuations of Multicurrency Loans, in such greater or lesser amounts as are
as near to $5,000,000 or a multiple of $1,000,000, as applicable, as reasonably practicable
in light of any change in the Spot Rate between the date of such continuation and the date
of the Borrowing or any previous continuation thereof, as the case may be). 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 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



-94-









 




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 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 the Multicurrency Lender or Issuing Bank, from time to time as specified by the
Multicurrency Lender or Issuing Bank, such amount or amounts as may be necessary to compensate the
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






-95-









 







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;




   (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; and




   (v) There shall be no more than ten (10) Interest Periods in effect at any one time.



     (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




-96-










 





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 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



-97-









 






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 the 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 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




-98-









 







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 Lender, 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 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; provided, that subsequent to the date on which the Domestic Lenders fund
their participations in the Multicurrency Facility, the Unused Commitment Fee on the Multicurrency
Facility shall be ratably distributed among the Domestic Lenders to the extent of their funded
participations. 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.





-99-









 








          (c) Amendment and Restatement Fee; Multicurrency Lender Fronting Fee; Other Fees. The
Borrowers jointly and severally agree to pay to the Administrative Agent, for the ratable benefit
of the Domestic Lenders, an amendment and restatement fee in immediately available funds equal to
$262,500. Such fee shall be paid on the Closing Date. For the period commencing on the Closing
Date and ending on the Termination Date, the Multicurrency Borrowers jointly and severally agree to
pay to the Administrative Agent, solely for the account of the Multicurrency Lender, a fee (the
“Multicurrency Lender Fronting Fee”) that will accrue beginning on the Closing Date and
that will be 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, equal to 0.25% per annum times that
portion of the average aggregate outstanding principal amount of Multicurrency Loans for the
applicable month in excess of $45,000,000. In addition to the foregoing, the Borrowers agree to
pay to the Administrative Agent solely for its own account such other fees as are set forth in the
Proposal and Fee Letter.




          (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) Jones, Day, Reavis & Pogue and (B)
each of its other counsel listed in the Closing List to prepare and deliver



-100-









 






to the
Administrative Agent, the Lenders, the Issuing Bank and Sidley Austin Brown & Wood 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;




     (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, 2004, (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, 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, 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, including, without limitation, all affirmations of collateral documents and
guarantees and amendments to federal intellectual property filings requested by the Administrative
Agent. All certificates representing Capital Stock included in the Collateral shall have been
delivered to the Administrative Agent (with duly executed stock




-101-









 







powers, as appropriate) and all
instruments included in the Collateral shall have been delivered to the Administrative Agent (duly
endorsed to the Administrative Agent).




          (c) Amount of Indebtedness. 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.




          (d) 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.




          (e) No Change in Condition. Nothing contained in any disclosure made by NMHG Holding
or any of its Subsidiaries after the date of the Proposal and Fee 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 Proposal and Fee 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 Proposal and Fee
Letter.




          (f) 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.




          (g) 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.




          (h) 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 and foreign counsel to the Administrative
Agent) due and payable on or before the Closing Date (including, without limitation, all such fees
described in the Proposal and Fee Letter), and all expenses (including, without limitation, legal
expenses) due and payable on or before the Closing Date.




-102-









 








          (i) 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.




          (j) 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.




          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.




          (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.




-103-









 







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 Lender, 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 and Limited Liability Company Powers.





     (i) Each of the Borrowers and Borrower Subsidiaries (A) is a corporation or limited
liability company 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 or limited liability company 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 or limited liability
company 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 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 to the extent such states require such filings in order to enforce
rights in or against Collateral or obligors of Collateral located in such states, 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.



-104-









 





          (b) Authority; Enforceability.





     (i) Each Borrower and Borrower Subsidiary has the requisite corporate or limited
liability company 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 (or boards of managers or members, as applicable)
and (to the extent required by law) the shareholders or equityholders of such Borrower
or Borrower Subsidiary, respectively, and such approvals have not been rescinded, revoked or
modified in any respect. No other corporate or limited liability company 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 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 or limited liability company 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; and (ii) accurately sets forth (A) the correct
legal name, the jurisdiction of organization, 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 organization, (B) the
authorized, issued and outstanding shares of each class of Capital Stock of such Person and




-105-









 







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, 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 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 Proposal and Fee 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





-106-









 







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 statute 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.




          (j) No Material Adverse Change. Since December 31, 2004, 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.




-107-









 








          (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 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



-108-









 






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;




     (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.



-109-









 





          (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 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




-110-









 







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.





     (i) Except as set forth in Schedule 6.01-R, 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, 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, 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.



-111-









 





          (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.





     (i) After giving effect to (A) the issuance of any Indebtedness on any date, (B) the
making of any Restricted Payment or payment on any Senior Note on any date, (C) the sale of
assets on any date and (D) the transactions contemplated by the Loan Documents and the Loans
to be made on any date that Loans are requested hereunder and the disbursement of the
proceeds of such Loans pursuant to the applicable Borrower’s instructions, each Borrower and
NMHG Holding together with its Subsidiaries is Solvent.




     (ii) To the best knowledge of the UK Borrower, on each date on which Receivables will
be assigned by the Italian Receivables Seller to the UK Borrower under the terms of the
Receivables Sale Agreement between the Italian Receivables Seller and the UK Borrower, the
Italian Receivables Seller is generally able to pay its liabilities and has sufficient
assets to continue to carry on its business as conducted or proposed to be conducted and the
Italian Receivables Seller has not been declared bankrupt nor is the subject of any other
insolvency proceedings nor has any application for the commencement of any such proceedings
been filed against it. Notwithstanding Section 14.14, this Section
6.01(t)(ii) will be construed in accordance with the laws of the Republic of Italy.



          (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, 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 processes
by any Borrower or Borrower Subsidiary in any manner which shall have or is reasonably
likely to have a Material Adverse Effect.



-112-









 





          (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 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 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.




          (y) Transactions with Affiliates. Schedule 6.01-Y lists each and every
existing material agreement (other than the Loan Documents) and arrangement that any Credit Party
has entered into with any of their respective Affiliates which are not Credit Parties.




-113-









 








          (z) Bank Accounts. Schedule 6.01-Z sets forth 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 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, 2002. 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, 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.




          (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. Since the effective date of the Receivables Sale Agreement
between the Italian Receivables Seller and the UK Borrower, all Receivables originated by the
Italian Receivables Seller have been sold and assigned to the UK Borrower and




-114-









 







will be sold and
assigned to the UK Borrower on a daily basis. With respect to Receivables originated by the
Italian Receivables Seller, at any time that such Receivables are included as Eligible Foreign
Receivables, and, with respect to Receivables originated by the Netherlands Borrower, at all times,
(A) all steps necessary to ensure that the UK Borrower can exercise all of its rights under the
Receivables transferred under the applicable Receivables Sale Agreement directly against the
relevant account debtors have been taken and (B) to the extent required, the applicable Receivables
Sale Agreement enables 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).




          (ff) Anti-Terrorism Laws and Anti-Money Laundering Laws. None of the Borrowers and
Borrower Subsidiaries are, and after making due inquiry no Person who owns a controlling interest
in or otherwise controls any Borrower or Borrower Subsidiary is or shall be, (i) listed on the
Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets
Control (“OFAC”), Department of the Treasury, and/or on any other similar list
(collectively, the “Lists”) maintained by the OFAC pursuant to any authorizing statute,
Executive Order or regulation (collectively, “OFAC Laws and Regulations”); or (ii) a Person
(a “Designated Person”) either (A) included within the term “designated national” as
defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (B) designated under
Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published
September 25, 2001) or similarly designated under any related enabling legislation or any other
similar Executive Orders (collectively, the “Executive Orders”). None of the Borrowers and
Borrower Subsidiaries (x) is a Person or entity with which any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law or (y) is a Person or entity that
commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive
Orders or (z) is affiliated or associated with a Person or entity listed in the preceding
clause (x) or clause (y). To the Knowledge of the Borrowers, no Borrower, Borrower
Subsidiary, any of their Affiliates, nor any brokers or other agents acting in any capacity in
connection with the Loans hereunder (I) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to the Executive Orders or (II) engages
in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.




          (gg) No Violation of Anti-Money Laundering Laws. To each Borrower’s Knowledge no
Borrower, Borrower Subsidiary nor any holder of a direct or indirect interest in any Borrower or
Borrower Subsidiary (i) is under investigation by any governmental authority for, or has been
charged with, or convicted of, money laundering under 18 U.S.C. §§ 1956




-115-









 







and 1957, drug trafficking,
terrorist-related activities or other money laundering predicate crimes, or any violation of the
BSA, (ii) has been assessed civil penalties under any Anti-Money Laundering Laws, or (iii) has had
any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.




ARTICLE VII

REPORTING COVENANTS




          Each Borrower (other than the Multicurrency Borrowers which so covenant in favor of the
Multicurrency Lender 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 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



-116-









 






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) 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



-117-









 






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).




          (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




-118-









 







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
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




-119-









 







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. The Borrowers shall deliver to the Administrative Agent as soon as
practicable and in any event (a) no later than April 1 in each calendar year, a report in the form
of Schedule 6.01-W or otherwise 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 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
Person on their behalf or on behalf of any Borrower Subsidiary and the duration of such coverage,
(b) no later than 60 days after the Closing Date for each policy for which Required Evidence of
Insurance is required under Section 8.05, the Required Evidence of Insurance, (c) no later
than 10 Business Days after the renewal date of each policy (or the effective date of any policy
not in effect on the Closing Date) for which Required Evidence of Insurance is required under
Section 8.05, evidence satisfactory to the Administrative Agent that such policies are in
effect and showing the insurable interests of the Administrative Agent required by Section
8.05 and (d) no later than 60 days after the renewal date of each policy for which Required
Evidence of Insurance is required under Section 8.05, the Required Evidence of Insurance
for such policy. The Borrowers shall notify the Administrative Agent of, and shall give the
Administrative Agent and its representatives access to copies of, any new, updated, renewed or
otherwise modified material insurance policies (excluding health, medical, dental and life
insurance (other than key man life insurance)). The Borrowers shall promptly notify the
Administrative Agent of the nonpayment of any premiums of any policy, cancellation of any policy or
alterations of any policy that are adverse to the interests of the Holders, in each case, with
respect to policies of insurance for which Required Evidence of Insurance is required hereunder.




          7.05. Borrowing Base Certificate.




          (a) Monthly Delivery. At all times that (x) Excess Borrowing Base Capacity is greater
than an amount equal to forty percent (40%) of the Commitments then in effect (as





-120-









 







determined by the
Administrative Agent based on the then most recent set of Borrowing Base Certificates delivered by
the Borrowers or, during the period from June 30 to October 31 in any Fiscal Year, based on the
better of the two most recent sets of Borrowing Base Certificates delivered by the Borrowers) and
(y) addenda to Schedules 7.05-A and 7.05-B for the then current calendar year are
in effect pursuant to this Section 7.05(a), on each Business Day set forth on Schedule
7.05-A with respect to the Domestic Borrowers and Schedule 7.05-B with respect to the
Multicurrency Borrowers (each, a “Monthly Borrowing Base Delivery Date”), the Domestic
Borrowers and the Multicurrency Borrowers shall each provide the Administrative Agent with a
Borrowing Base Certificate (which the Administrative Agent shall promptly deliver to each Domestic
Lender and the Multicurrency Lender, respectively), reporting Eligible Receivables and Eligible
Inventory as of the Business Day set forth on Schedule 7.05-A or Schedule 7.05-B,
as applicable, for such Collateral and corresponding to the applicable Monthly Borrowing Base
Delivery Date, or, in each case, 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. Not later than December 10 (or if such day is not a Business Day, on the next
succeeding Business Day) in each calendar year commencing with 2005, the Borrowers shall deliver to
the Administrative Agent an addendum to each of Schedule 7.05-A and Schedule 7.05-B
showing the Monthly Borrowing Base Delivery Dates and reporting dates as to Eligible Receivables
and Eligible Inventory for the immediately following calendar year which addenda shall become
effective for such following calendar year upon the Administrative Agent’s approval thereof. Upon
approval of any such addenda the Administrative Agent shall promptly deliver such addenda to each
Lender.




          (b) Semi-Monthly Delivery. At all times that (x) Excess Borrowing Base Capacity is
greater than or equal to an amount equal to twenty percent (20%) of the Commitments then in effect
(as determined by the Administrative Agent based on the then most recent set of Borrowing Base
Certificates delivered by the Borrowers or, during the period from June 30 to October 31 in any
Fiscal Year, based on the better of the two most recent sets of Borrowing Base Certificates
delivered by the Borrowers), (y) addenda to Schedules 7.05-C and 7.05-D for the
then current calendar year are in effect pursuant to this Section 7.05(b) and (z) the
conditions for monthly reporting in Section 7.05(a) are not satisfied at such time, on each
Business Day set forth on Schedule 7.05-C with respect to the Domestic Borrowers and
Schedule 7.05-D with respect to the Multicurrency Borrowers (each, a
“Semi-Monthly Borrowing Base Delivery Date”), the Domestic Borrowers and the Multicurrency
Borrowers shall each provide the Administrative Agent with a Borrowing Base Certificate (which the
Administrative Agent shall promptly deliver to each Domestic Lender and the Multicurrency Lender,
respectively), reporting Eligible Receivables and Eligible Inventory as of the Business Day set
forth on Schedule 7.05-C or Schedule 7.05-D, as applicable, for such Collateral and
corresponding to the applicable Semi-Monthly Borrowing Base Delivery Date, or, in each case, 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





-121-









 







by a Financial Officer of the Multicurrency Borrowers. Not later than December 10 (or if
such day is not a Business Day, on the next succeeding Business Day) in each calendar year
commencing with 2005, the Borrowers shall deliver to the Administrative Agent an addendum to each
of Schedule 7.05-C and Schedule 7.05-D showing the Semi-Monthly Borrowing Base
Delivery Dates and reporting dates as to Eligible Receivables and Eligible Inventory for the
immediately following calendar year which addenda shall become effective for such following
calendar year upon the Administrative Agent’s approval thereof. Upon approval of any such addenda
the Administrative Agent shall promptly deliver such addenda to each Lender.




          (c) Weekly Delivery. At all times that (x) Excess Borrowing Base Capacity is less
than an amount equal to twenty percent (20%) of the Commitments then in effect (as determined by
the Administrative Agent based on the then most recent set of Borrowing Base Certificates delivered
by the Borrowers or, during the period from June 30 to October 31 in any Fiscal Year, based on the
better of the two most recent sets of Borrowing Base Certificates delivered by the Borrowers) or
(y) the conditions for monthly and semi-monthly reporting in Sections 7.05(a) and
7.05(b), respectively, are not satisfied at such time, 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 “Weekly Borrowing Base Delivery Date”), the Domestic Borrowers and the Multicurrency Borrowers shall each
provide the Administrative Agent with a Borrowing Base Certificate (which the Administrative Agent
shall promptly deliver to each Domestic Lender and the Multicurrency Lender, respectively)
reporting (i) Eligible Receivables as of the last Business Day of the immediately preceding
calendar week and (ii) Eligible Inventory as of (A) the last Business Day of the second preceding
calendar month on any Weekly Borrowing Base Delivery Date on or prior to the fifteenth day of the
calendar month and (B) as of the last Business Day of the immediately preceding calendar month on
any Weekly Borrowing Base Delivery Date after the fifteenth day of the calendar month, or, in any
case of clauses (i) or (ii) 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





-122-









 







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
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





-123-









 







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
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;



-124-









 






     (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,
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.




-125-









 








          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.




          7.14. Solvency of Italian Receivables Seller. Each Borrower shall notify the
Administrative Agent and the Lenders in writing promptly upon such Borrower’s learning that
any representation and warranty given by the UK Borrower in Section 6.01(t)(ii) is
false or misleading in any respect.




          7.15. Anti-Terrorism and Anti-Money Laundering Law Notices. Each Borrower shall
immediately notify the Administrative Agent if such Person obtains Knowledge that any holder of a
direct or indirect interest in any Borrower or Borrower Subsidiary, or any director, manager or
officer of any of such holder, (a) has been listed on any of the Lists, (b) has become a Designated
Person, (c) is under investigation by any governmental authority for, or has been charged with or
convicted of, money laundering drug trafficking, terrorist-related activities or other money
laundering predicate crimes, or any violation of the BSA, (d) has been assessed civil penalties
under any Anti-Money Laundering Laws, or (e) has had funds seized or forfeited in an action under
any Anti-Money Laundering Laws.




ARTICLE VIII

AFFIRMATIVE COVENANTS




          Each of the Borrowers (other than the Multicurrency Borrowers which so covenant in favor of
the Multicurrency Lender 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. Organizational Existence, Etc. Each Borrower shall, and shall cause each
Borrower Subsidiary to, at all times maintain its respective organizational 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.




-126-









 








          8.02. Organizational 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 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





-127-









 







policies and programs as are acceptable to the Administrative Agent; provided, that at any
time but no more than once in any Fiscal Year unless an Event of Default has occurred and is
continuing, the Administrative Agent may engage (at the Borrowers’ expense) a third-party insurance
consultant to examine, review and appraise the insurance policies and programs maintained by the
Borrowers and their Subsidiaries, and to the extent deemed reasonably necessary by the
Administrative Agent (taking into account, among other things, the cost of such additional coverage
and the risks insured against by such additional coverage), require the Borrowers to modify the
insurance policies and programs currently in place or, in the event that any insurer is rated less
than A-, VII by A.M. Best (or an equivalent rating by another insurance rating company reasonably
satisfactory to the Administrative Agent), replace the insurance policies and programs provided by
such insurer. Each policy relating to (a) the Collateral and/or business interruption coverage for
any Credit Party shall be properly endorsed to the Administrative Agent, in form and substance
acceptable to the Administrative Agent, showing loss payable to the Administrative Agent, for the
benefit of the Holders and (b) subject to the terms and conditions of the Term B Loan Documents and
the Term B Loan Intercreditor Agreement, coverage for any Credit Party other than the foregoing,
unless otherwise permitted by the Administrative Agent, shall contain an endorsement naming the
Administrative Agent as an additional insured under such policy, in each case in form and substance
acceptable to the Administrative Agent (collectively, the “Required Evidence of Insurance”)
and delivered to the Administrative Agent in accordance with Section 7.04. Such Required
Evidence of Insurance
furnished to the Administrative Agent shall provide, unless otherwise permitted by the
Administrative Agent in its sole discretion, that the insurance companies will give the
Administrative Agent at least ten (10) days’ prior written notice of any cancellation due to
nonpayment of premiums thereunder and at least thirty (30) days’ prior written notice before any
such policy or policies of insurance shall be altered adversely to the interests of the Holders or
otherwise cancelled and that no act, whether willful or negligent, or default of any Borrower,
Borrower Subsidiary or 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
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 transactions contemplated hereby or referenced
herein (including, without limitation, in





-128-









 







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 provided, however, that Collateral
field examinations at the Borrowers’ expense may be conducted no more frequently than (i)
quarterly, if Excess Borrowing Base Capacity is less than an amount equal to twenty percent (20%)
of the Commitments then in effect (as determined by the Administrative Agent based on the then most
recent set of Borrowing Base Certificates delivered by the Borrowers or, during the period from
June 30 to October 31 in any Fiscal Year, based on the better of the two most recent sets of
Borrowing Base Certificates delivered by the Borrowers); (ii) semi-annually, if Excess Borrowing
Base Capacity is greater than or equal to an amount equal to twenty percent (20%), but less than or
equal to forty percent (40%), of the Commitments then in effect (as determined by the
Administrative Agent based on the then most recent set of Borrowing Base Certificates delivered by
the Borrowers or, during the period from June 30 to October 31 in any Fiscal Year, based on the
better of the two most recent sets of Borrowing Base Certificates delivered by the Borrowers);
(iii) annually, if Excess Borrowing Base Capacity is greater than an amount equal to forty percent
(40%) of the Commitments then in effect (as determined by the Administrative Agent based on the
then most recent set of Borrowing Base Certificates delivered by the Borrowers or, during the
period from June 30 to October 31 in any Fiscal Year, based on the
better of the two most recent sets of Borrowing Base Certificates delivered by the Borrowers);
or (iv) at any time an Event of Default has occurred and is continuing.




          (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, mark 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




-129-









 







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.




          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, in the event that any jurisdiction where account debtors of the UK
Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the
aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000
and 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 cause to be issued, within 45 days after
the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, 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;




-130-









 







(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 Foreign Debtor Jurisdiction,
the Administrative Agent has concluded that the level or risk is acceptable to it (collectively,
the “Required Cross-Border Opinions”). In addition, within 90 days after the date on which
a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, (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.




          (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





-131-









 







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.




          (d) In addition to and not in lieu of the rights and obligations of the parties under clauses
(a), (b) and (c) above, promptly, but in any event within 90 days, following the Administrative
Agent’s written request (or such later date as is agreed to in writing by the Administrative
Agent), and at the expense of the applicable Borrower or Subsidiary thereof, each Borrower agrees
to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and
substance reasonably satisfactory to the Administrative Agent, any and all such further instruments
and documents, including, without limitation, all amendments, modifications, supplements,
restatements or reaffirmations of any existing instruments or documents, in each case as are
reasonably requested by the Administrative Agent in order to create and/or maintain a valid and
perfected security interest of the Administrative Agent in any Foreign Collateral.




          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.





-132-









 








          8.13. Insurance and Condemnation Proceeds.




          (a) Direction to Insurers. Subject to terms and conditions of the Term B Loan
Documents and the Term B Loan Intercreditor Agreement, 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 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).




          8.14. Compliance with Anti-Money Laundering Laws and Anti-Terrorism Laws. Each
Borrower and Borrower Subsidiary has taken, and agrees that it shall continue to take, reasonable
measures (including, without limitation, the adoption of adequate policies, procedures and internal
controls) appropriate to the circumstances (in any event as required by applicable Requirements of
Law), to ensure that such Person is and shall be in compliance with all current and future
Anti-Money Laundering Laws and Anti-Terrorism Laws and applicable Requirements of Law and
governmental guidance for the prevention of terrorism, terrorist financing and drug trafficking.




-133-









 








ARTICLE IX

NEGATIVE COVENANTS




          Each of the Borrowers (other than the Multicurrency Borrowers which so covenant in favor of
the Multicurrency Lender 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 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




-134-









 







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;




          (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, and (ii) Indebtedness
with respect to any working capital facility guaranteed pursuant to the Foreign Working Capital
Guaranty;




          (m) [Intentionally Omitted];




          (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




-135-









 







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;




          (q) Parent Subordinated Indebtedness;




          (r) Indebtedness evidenced by Permitted Term B Loans; and




          (s) in addition to the Indebtedness permitted by clauses (a) through (r) 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),
(g) and (q) 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.




          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 or Capital Stock of (i) any Subsidiary that was a Subsidiary of NMHG Distribution as of the
Closing Date (a “Distribution Subsidiary”) or (ii) a Borrower Subsidiary created after the
Closing Date whose only assets at the time of formation consisted of assets acquired from a
Distribution Subsidiary (“Distribution Property”) and whose only assets at the time of sale
consist of Distribution Property and assets acquired or originated in the ordinary course of
business; 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




-136-









 







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 by the Italian Receivables Seller to the UK Borrower pursuant to
any agreement in form and substance satisfactory to the Administrative Agent, and sales of
Receivables by the Italian Receivables Seller to the UK Borrower pursuant to the applicable
Receivables Sale Agreement and (ii) sales and assignments of Receivables by the Netherlands
Borrower to the UK Borrower pursuant to the applicable Receivables Sale Agreement; provided, that,
with respect to Receivables or Inventory originated by the Italian Receivables Seller, at any time
that such Receivables or Inventory, as applicable, are included as Eligible Foreign Receivables or
Eligible Foreign Inventory, as applicable, and, with respect to Receivables originated by the
Netherlands Borrower, at all times, all actions under all applicable Requirements of Law required
to perfect the UK Borrower’s ownership of such Receivables and Inventory, as applicable, shall have
been taken; 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;




          (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 Sale 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;




-137-









 








          (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;




          (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 discharged within ninety (90) days of such
Property being acquired or such Person becoming a Borrower Subsidiary, as the case may be;




          (j) Liens upon cash or Cash Equivalents securing obligations owing by a Borrower or a Borrower
Subsidiary to the Administrative Agent, a Lender or an Affiliate thereof
that arise as a result of the termination of an Interest Rate Contract permitted hereunder to
which the Borrower or a Borrower Subsidiary, as applicable, and the Administrative Agent, a Lender,
or an Affiliate thereof, as applicable, were subject; provided, that the Administrative
Agent, the Lender or the Affiliate thereof, as applicable, that is the counterparty under such
Interest Rate Contract shall determine in its reasonable judgment such termination amount;
provided, further, that such Lien shall run solely for the benefit of the
Administrative Agent, the Lender or the Affiliate thereof, as applicable; and




          (k) Liens securing Indebtedness evidenced by Permitted Term B Loans; provided that (i)
the holders of such Permitted Term B Loans shall only be permitted hereunder to have a first
priority Lien on that portion of the Borrower’s and the Borrower’s Subsidiaries’ assets
constituting real estate located in the United States of America, fixtures, improvements thereon,
and equipment and the proceeds of any of the foregoing that do not constitute and are





-138-









 







not required
to constitute Collateral under the terms of the Loan Documents, and (ii) the holders of such
Permitted Term B Loans shall only be permitted hereunder to have a second priority Lien on that
portion of the Borrower’s and the Borrower’s Subsidiaries’ assets constituting Collateral or
required to constitute Collateral under the terms of the Loan Documents if such holders and such
Lien are subject to an intercreditor agreement, at the time such Lien is granted, with the
Administrative Agent for the benefit of the Lenders that is in form and substance acceptable to the
Administrative Agent.




          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 $25,000,000;




          (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





-139-









 







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, aggregate Availability under the Credit Facilities will be 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;




          (g) Investments permitted in connection with Accommodation Obligations permitted under
Section 9.05(e);




          (h) Investments in Securities received as consideration in a sale of Property pursuant to
Section 9.02(b), subject to the limitation on the amount of non-cash consideration that may
be received in connection with such sale as set forth in clause (x) of the proviso to such
Section 9.02(b); and




          (i) Investments consisting of purchases of Senior Notes permitted by Section
9.06(b)(i)(B).




          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) (i) 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; and (ii) Accommodation Obligations evidenced by Financing
Agreements of the type described in clause (c) of the





-140-









 







definition thereof, and any renewal,
amendment, restatement or replacement thereof permitted by the definition thereof;




          (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), 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;




          (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;




          (g) Parent Subordinated Indebtedness;




          (h) Accommodation Obligations of the Borrower or any Subsidiary thereof in respect of
Permitted Term B Loans; and




          (i) in addition to the Accommodation Obligations permitted by clauses (a) through
(h) 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. 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”), 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, aggregate
Availability under the Credit Facilities exceeds $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.




-141-









 








          (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) (A) regularly scheduled payments of principal and interest by NMHG on the Senior
Notes and (B) prepayments, redemptions and/or purchases of all or any portion of the Senior
Notes, including, without limitation, the prepayment thereof with proceeds of Permitted Term
B Loans, so long as after giving effect to any such prepayment, redemption or purchase,
Availability under all Credit Facilities is greater than or equal to $40,000,000;




     (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 organizational existence, (B) to pay for all
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);




     (vii) payments of Indebtedness permitted by Section 9.01(p); and




     (viii) payments of principal and interest by the Borrowers and Borrower Subsidiaries
with respect to Parent Subordinated Indebtedness so long as after giving effect to any such
payment, Availability under all Credit Facilities is greater than or equal to $10,000,000;



-142-









 




provided, however, that the Restricted Payments described in clauses (i)(B),
(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) 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;




     (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



-143-









 






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 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




-144-









 







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 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; and




          (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.




          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




-145-









 







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 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;




-146-









 








          (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 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;
provided, however, that NMHG Oregon, Inc. may be converted into a limited liability
company so long as the Administrative Agent approves the agreements, documents and instruments
pursuant to which such conversion is to take place prior to the occurrence thereof and the
Administrative Agent retains a first priority perfected security interest in all Collateral after
such conversion is completed.




          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





-147-









 







pursuant to
the exercise of reasonable business judgment; (ii) prepay, redeem, purchase, repurchase, defease or
retire any Indebtedness or the Senior Notes except for (1) regularly scheduled payments as
expressly permitted pursuant to the terms of the Loan Documents, (2) regularly scheduled payments
of principal of and interest on the Permitted Term B Loans and any mandatory prepayment required to
be made with respect thereto, in accordance with, and to the extent permitted by, the Permitted
Term B Loan Intercreditor Agreement, and (3) the prepayment of the Senior Notes with proceeds of
Permitted Term B Loans and cash; provided, that cash may only be used to repay Senior Notes
if used together with proceeds of Permitted Term B Loans, an Event of Default is not outstanding
and would not result therefrom; provided, further, that the Administrative Agent’s
Lien in such cash shall automatically terminate if applied in accordance with the foregoing and in
accordance with the other terms and conditions of the Loan Documents; (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 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, the Senior Notes or the Permitted Term B Loan
Documents, 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.




          9.19. No Violation of Anti-Terrorism Laws. The Borrowers and Borrower Subsidiaries
shall not: (a) violate any of the prohibitions set forth in the Anti-Terrorism Laws applicable to
any of them or the business that they conduct, or (b) require the Administrative Agent, the Issuing
Bank or the Lenders to take any action that would cause the Administrative Agent or the Lenders to
be in violation of the prohibitions set forth in the Anti-Terrorism Laws, it being understood that
the Administrative Agent, the Issuing Bank or any Lender can refuse to honor any such request or
demand otherwise validly made by any Borrower under this Agreement or any Loan Document. The
Borrowers also shall not, and shall not permit any




-148-









 







Borrower Subsidiary to, directly or indirectly,
(a) Knowingly conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any Designated Person or any other Person identified in
any List, (b) Knowingly deal in, or otherwise engage in any transaction relating to, any property
or interests in property blocked pursuant to any Anti-Terrorism Law, (c) repay the Loans with any
funds derived from any unlawful activity with the result that the making of the Loans would be in
violation of law, or (d) Knowingly engage in or conspire to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law (and the Borrowers shall deliver to the
Administrative Agent any certification or other evidence requested from time to time by the
Administrative Agent in its reasonable discretion, confirming compliance with this Section
9.20).




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 $10,000,000 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 3.25 to 1.00.




          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 day of each fiscal
quarter set forth below for the four-fiscal-quarter period then ending of at least 1.50 to 1.00.




          10.04. Maximum Capital Expenditures. Capital Expenditures made or incurred by NMHG
and its Subsidiaries on a consolidated basis shall not exceed $80,000,000 in any Fiscal Year;
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).




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:





-149-









 








          (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 Proposal and Fee Letter,
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 $10,000,000 and, if aggregate
Availability under the Credit Facilities is greater than $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
Indebtedness, 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 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.




-150-









 








          (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,
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





-151-









 







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.




          (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.




-152-









 








          (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, 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




-153-









 







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), 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





-154-









 







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 mark 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 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





-155-









 







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 at any time that the
Lenders so required hereunder have instructed the Administrative Agent to act or refrain from
acting pursuant hereto Each Lender hereby consents to the Administrative Agent’s negotiation of
and entry into an intercreditor agreement on such Lender’s behalf in connection with Permitted Term
B Loans, including, without limitation, any intercreditor





-156-









 







agreement governing Permitted Term B
Loans arranged, agented or held by Citibank, CNAI or any CNAI Affiliate. Such intercreditor
agreement shall constitute the intercreditor agreement
described in the definition of “Permitted Term B Loans” and is the intercreditor agreement to
which term B loans are required to be subject in order to qualify as Permitted Term B Loans. Each
Lender further authorizes the Administrative Agent to take actions under such intercreditor
agreement on its behalf and agrees to be bound by the terms and conditions of such intercreditor
agreement.




          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




-157-









 







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.




          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




-158-









 







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.




          (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




-159-









 







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 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:



-160-









 






(A) against all of the Collateral, upon final Payment In Full of the Obligations and
termination of the Commitments and this Agreement;




(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 Commitment has 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.



-161-









 






     (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
(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.



          (f) Italian Pledges. For the purpose of the Italian Pledges only, in connection with
the Obligations of each Borrower towards any Obligee, each of the parties to this Agreement agrees
that CNAI shall, to the extent CNAI is not a creditor itself in respect of such Obligations, be a
“joint and several co-creditor” with such Obligee in respect of such Obligations. Accordingly,
CNAI shall be entitled to demand as a creditor performance in full of such Obligations by the
relevant Borrower owing the same, whereby satisfaction of such Obligations owed to one creditor
(either CNAI or the relevant Obligee) shall release such Borrower from its obligations to the other
creditor.




          12.10. No Reliance on Administrative Agent’s Customer Identification Program. Each
Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other obligations required or
imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the
regulations contained in 31 C.F.R. 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with any of the Borrowers, Borrower Subsidiaries,
their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated
hereby: (a) any identity verification procedures, (b) any recordkeeping, (c) comparisons with
government lists, (d) customer notices or (e) other procedures required under the CIP Regulations
or such other Anti-Terrorism Laws.




          12.11. USA Patriot Act. On the Closing Date and at such other times as are required
under the USA Patriot Act, each Lender and each of its assignees and participants that is not
incorporated under the laws of the United States of America or a state thereof (and is not excepted
from the certification requirement contained in Section 313 of the USA Patriot Act and the
applicable regulations because it is both (a) an affiliate of a depository institution or foreign
bank that maintains a physical presence in the United States or foreign country, and (b) subject to
supervision by a banking authority regulating such affiliated depository institution or foreign
bank) shall deliver to the Administrative Agent the certification, or, if applicable,
recertification, certifying that such Lender is not a “shell” and certifying to other matters as
required by Section 313 of the USA Patriot Act and the applicable regulations.




-162-









 








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 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;




-163-









 








          (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).




          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





-164-









 







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 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 Lender, that to the extent any payment of the Obligations of the Multicurrency
Borrowers is required to be made under this Agreement, each Multicurrency




-165-









 







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, sue 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, 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





-166-










 





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,
sue 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 Lender. 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).




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





-167-









 







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 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




-168-









 







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.




          (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




-169-









 







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 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, Austin Brown & Wood 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,






-170-









 







 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 (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 Lender (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, consultants 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





-171-









 







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 Proposal and Fee 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 Proposal and Fee 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.




          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.





-172-









 








          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 the
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) 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
Lender 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





-173-









 







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 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),



-174-









 






     (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
Commitment (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,




     (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
Commitment with respect to the maximum aggregate amounts set forth in such defined terms,
and




     (vii) amendment or waiver of Section 10.01.



          (d) Amendments, Consents and Waivers by the Multicurrency Lender. Notwithstanding the
foregoing, any amendment, modification, termination, waiver or consent with respect to any
provision governing the Multicurrency Lender’s fronting of the





-175-









 







Multicurrency Loans, including,
without limitation, the Multicurrency Lender Fronting Fee, the amount of the Multicurrency
Commitment and the requirements of Section 2.03, shall be effective only by a written
agreement signed by the Multicurrency Lender.




          (e) 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(e) 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 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





-176-









 







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 CGMI 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 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,





-177-









 







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 sue upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.






-178-









 








          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 111 EIGHTH AVENUE, NEW YORK,
NEW YORK 10011, 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 OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.



-179-









 






     (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
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. ANY SUCH PERSON MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF





-180-









 







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.




          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





-181-









 







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 Proposal and Fee Letter (except for provisions therein specifically referred to herein) and all
prior agreements and understandings, written and oral, relating to the subject matter hereof.




          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)





-182-









 







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. Sole Lead Arranger and Sole Bookrunner. This Loan Agreement places no duties
on the Sole Lead Arranger or Sole Bookrunner 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
Commitment 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 Commitment, 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.




          14.26. Amendment and Restatement. The parties hereto agree that upon (i) the
execution and delivery of this Agreement by each of the parties hereto and (ii) satisfaction (or
waiver by the aforementioned parties) of the conditions precedent set forth in Section
5.01, the terms and conditions of the Previous Agreement shall be and hereby are amended,
superseded, and restated in their entirety by the terms and provisions of this Agreement. This
Agreement is not intended to and shall not constitute a novation of the Previous Agreement or the
Indebtedness incurred thereunder. With respect to any date or time period occurring and ending
prior to the Closing Date, the rights and obligations of the parties to the Previous Agreement
shall be governed by the Previous Agreement and the Loan Documents (as defined therein), and with
respect to any date or time period occurring and ending on or after the Closing Date, the rights
and obligations of the parties hereto shall be governed by this Agreement and the other Loan
Documents (as defined herein). The Lenders hereby agree that the Administrative Agent shall have
full power and authority to allocate the Domestic Commitments and Multicurrency Commitments of the
Lenders as in effect immediately prior to the Closing Date such that, immediately after giving
effect to such allocations on the Closing Date, each Lender shall hold the “Domestic Commitment”,
the “Multicurrency Commitment” and the “Domestic Commitment plus Additional Multicurrency
Participation Obligation” (and corresponding ratable shares of such relevant Commitments and
participation obligations in the Multicurrency Facility, as applicable) set forth next to its name
on Schedule 1.01.1. The Lenders further agree to make all assignments and/or transfers,
and hereby consent to any such assignments and transfers,





-183-









 







which may be necessary (including,
without limitation, assignments of funded obligations) to effect the allocations described in the
preceding sentence.




The remainder of this page is intentionally blank.




-184-









 








     IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first above written.



	 	 	 	 	 
	 	NMHG HOLDING CO.

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



	 	 	 
	 

	 	Notice Address:
	 

	 	c/o NACCO Materials Handling Group, Inc.
	 

	 	650 NE Holladay Street, Suite 1600
	 

	 	Portland, Oregon 97232 USA
	 

	 	Attention: General Counsel
	 

	 	Phone: (503) 721-6000
	 

	 	Telecopier: (503) 721-6059
	 

	 	E-Mail: carolyn.vogt@nmhg.com






	 	 	 	 	 
	 	NACCO MATERIALS HANDLING GROUP, INC.

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



	 	 	 
	 

	 	Notice Address:
	 

	 	650 NE Holladay Street, Suite 1600
	 

	 	Portland, Oregon 97232 USA
	 

	 	Attention: General Counsel
	 

	 	Phone: (503) 721-6000
	 

	 	Telecopier: (503) 721-6059
	 

	 	E-Mail: carolyn.vogt@nmhg.com






S-1









 






	 	 	 	 	 
	 	NACCO MATERIALS HANDLING LIMITED

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



	 	 	 
	 

	 	Notice Address:
	 

	 	c/o NACCO Materials Handling Group, Inc.
	 

	 	650 NE Holladay Street, Suite 1600
	 

	 	Portland, Oregon 97232 USA
	 

	 	Attention: General Counsel
	 

	 	Phone: (503) 721-6000
	 

	 	Telecopier: (503) 721-6059
	 

	 	E-Mail: carolyn.vogt@nmhg.com






S-2









 






	 	 	 
	 

	 	NACCO MATERIALS HANDLING B.V.
	 
	 	 
	 

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






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



	 	 	 
	 

	 	Notice Address:
	 

	 	c/o NACCO Materials Handling Group, Inc.
	 

	 	650 NE Holladay Street, Suite 1600
	 

	 	Portland, Oregon 97232 USA
	 

	 	Attention: General Counsel
	 

	 	Phone: (503) 721-6000
	 

	 	Telecopier: (503) 721-6059
	 

	 	E-Mail: carolyn.vogt@nmhg.com






S-3









 






	 	 	 
	 

	 	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:  	Vice President and Director 	 
	 



	 	 	 
	 

	 	Notice Address:
	 

	 	388 Greenwich Street, 19th Floor
	 

	 	New York, New York 10013
	 

	 	Attention: David Jaffe
	 

	 	Telecopier No.: (212) 816-2613
	 

	 	Confirmation No.: (212) 816-2329
	 

	 	E-Mail: david.jaffe@citi.com






	 	 	 
	 

	 	CITIBANK INTERNATIONAL PLC, as Multicurrency Lender and as
Overdraft Line Bank






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



S-4









 






	 	 	 	 	 



	 	 	 
	 

	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as a Domestic Lender






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



	 	 	 
	 

	 	Notice Address and
	 

	 	Domestic Lending Office:
	 

	 	Fixed Rate Lending Office:
	 
	 

	 	GE Capital — Commercial Finance
	 

	 	60 Long Ridge Road
	 

	 	Stamford, Connecticut 06927-5100
	 

	 	Attention: Alison Heely
	 

	 	Telephone: (203) 357-6058
	 

	 	Facsimile: (203) 316-7978
	 

	 	E-Mail: alison.heely@gecapital.com






S-5









 






	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, INC., as a Domestic Lender

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



	 	 	 
	 

	 	Notice Address:
	 

	 	2450 Colorado Avenue, Suite 3000
	 

	 	Santa Monica, California 90404
	 

	 	Attention: Mike Baranowski
	 

	 	Telecopier No.: (310) 453-7447
	 

	 	Confirmation No.: (310) 453-7308
	 

	 	E-Mail:
mikeb@foothillcapital.com






S-6









 






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

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



	 	 	 
	 

	 	Notice Address:
	 

	 	National Corporate Banking Division
	 

	 	U.S. Bank National Association
	 

	 	555 S.W. Oak Street, Suite 400
	 

	 	Portland, Oregon 97204
	 

	 	Attention: Scott J. Bell
	 

	 	Telecopier No.: (503) 275-5428
	 

	 	Confirmation No.: (503) 275-4809
	 

	 	E-Mail: scott.bell@usbank.com






S-6









 






	 	 	 	 	 
	 	KEY CORPORATE CAPITAL INC., as a Domestic Lender

 	 
	 	By:  	     /s/ Timothy W. Kenealy
 	 
	 	 	Name:  	Timothy W. Kenealy 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 
	 

	 	Notice Address:
	 

	 	127 Public Square OH-01-27-0600
	 

	 	Cleveland, Ohio 44114
	 

	 	Attention: Chris Diorio
	 

	 	Telecopier No.: (216) 689-3298
	 

	 	Confirmation No.: (216) 689-4404
	 
	 	 
	 

	 	Fixed Rate Lending Office:
	 

	 	127 Public Square
	 

	 	Cleveland, Ohio 44114
	 

	 	Attention: Tony Simenic
	 

	 	Telecopier No.: (216) 689-0255
	 

	 	Confirmation No.: (216) 689-5206






S-6









 






	 	 	 	 	 
	 	GMAC COMMERCIAL FINANCE LLC, as a Domestic Lender

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



	 	 	 
	 

	 	Notice Address:
	 

	 	3000 Town Center, Suite 280
	 

	 	Southfield, Michigan 48075
	 

	 	Attention: Gwen Julin
	 

	 	Telecopier No.: (248) 356-8978
	 

	 	Confirmation No.: (248) 263-6206
	 

	 	E-Mail: gjulin@gmacbc.com






S-6









 






	 	 	 	 	 
	 	STATE OF CALIFORNIA PUBLIC
EMPLOYEES’ 
RETIREMENT SYSTEM, as a
Domestic Lender
 	 
	 	By:  	        /s/ Mike Claybar
 	 
	 	 	Name:  	Mike Claybar 	 
	 	 	Title:  	Investment Officer 	 
	 



	 	 	 
	 

	 	Notice Address:
	 

	 	400 P Street
	 

	 	Sacramento, California 95814
	 

	 	Attention: Thomas McDonagh
	 

	 	Telecopier No.: (916) 326-3330
	 

	 	Confirmation No.: (916) 326-3425/326-3396






S-6









 






Exhibit A




Applicable Fixed Rate Margin, Applicable Floating Rate Margin, Applicable Letter of Credit Fee Rate, Applicable Overdraft

Rate Margin & Applicable Unused Commitment Fee Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Applicable
	 	 	 	 	 	 	 	 	 	 	Applicable	 	Applicable	 	Applicable	 	Unused
	 	 	 	 	 	 	Applicable Fixed	 	Floating Rate	 	Overdraft Rate	 	Letter of Credit	 	Commitment Fee
	Level	 	Leverage Ratio	 	Rate Margin	 	Margin	 	Margin	 	Fee Rate	 	Rate
	 	1	 	 	Less than 2.50x
	 	 	1.500	%	 	 	0.500	%	 	 	1.750	%	 	 	1.250	%	 	 	0.375	%
	 	2	 	 	Greater than or
equal to 2.50x and
less than 3.00x
	 	 	1.750	%	 	 	0.750	%	 	 	2.000	%	 	 	1.500	%	 	 	0.375	%
	 	3	 	 	Greater than or
equal to 3.00x
	 	 	2.000	%	 	 	1.000	%	 	 	2.250	%	 	 	1.750	%	 	 	0.375	%






Exh. A-1









 






 





AMENDED AND RESTATED CREDIT AGREEMENT

dated as of DECEMBER 19, 2005




among




NMHG HOLDING 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




and

CITIGROUP GLOBAL MARKETS INC.

as Sole Lead Arranger and as Sole Bookrunner




 






 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE I	 	 	 	 
	 

	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	1.01.

	 	Certain Defined Terms
	 	 	1	 
	1.02.

	 	Computation of Time Periods
	 	 	56	 
	1.03.

	 	Accounting Terms
	 	 	56	 
	1.04.

	 	Other Definitional Provisions
	 	 	56	 
	1.05.

	 	Other Terms
	 	 	56	 
	1.06.

	 	Payments by the Borrowers
	 	 	56	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 

	 	AMOUNTS AND TERMS OF LOANS AND LETTERS OF CREDIT	 	 	 	 
	 
	 	 	 	 	 	 
	2.01.

	 	The Revolving Credit Facility
	 	 	57	 
	2.02.

	 	Letters of Credit
	 	 	64	 
	2.03.

	 	Participations in Multicurrency Facility
	 	 	71	 
	2.04.

	 	Evidence of Indebtedness
	 	 	73	 
	2.05.

	 	Authorized Officers and Administrative Agents
	 	 	73	 
	2.06.

	 	Booking of Loans and Letters of Credit
	 	 	74	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 

	 	PAYMENTS AND PREPAYMENTS	 	 	 	 
	 
	 	 	 	 	 	 
	3.01.

	 	Prepayments; Reductions in and Reallocations of Commitments
	 	 	74	 
	3.02.

	 	Payments
	 	 	78	 
	3.03.

	 	Pro Rata Shares Adjustment
	 	 	84	 
	3.04.

	 	Taxes
	 	 	84	 
	3.05.

	 	Increased Capital
	 	 	88	 
	3.06.

	 	Cash Management and Concentration Accounts
	 	 	89	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IV	 	 	 	 
	 

	 	INTEREST AND FEES	 	 	 	 
	 
	 	 	 	 	 	 
	4.01.

	 	Interest on the Loans and Other Obligations
	 	 	92	 
	4.02.

	 	Special Provisions Governing Fixed Rate Loans
	 	 	96	 
	4.03.

	 	Fees
	 	 	99	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 

	 	CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS AND LETTERS OF	 	 	 	 
	 

	 	CREDIT	 	 	 	 
	 
	 	 	 	 	 	 
	5.01.

	 	Conditions Precedent to Effectiveness
	 	 	100	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	5.02.

	 	Conditions Precedent to Revolving Loans, Swing Loans, Overdraft Loans and
Letters of Credit
	 	 	103	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI	 	 	 	 
	 

	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	6.01.

	 	Representations and Warranties of the Borrowers
	 	 	104	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VII	 	 	 	 
	 

	 	REPORTING COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	7.01.

	 	Financial Statements
	 	 	116	 
	7.02.

	 	Events of Default
	 	 	119	 
	7.03.

	 	Lawsuits
	 	 	119	 
	7.04.

	 	Insurance
	 	 	120	 
	7.05.

	 	Borrowing Base Certificate
	 	 	120	 
	7.06.

	 	ERISA and Analogous Notices
	 	 	122	 
	7.07.

	 	Environmental Notices
	 	 	124	 
	7.08.

	 	Labor Matters
	 	 	125	 
	7.09.

	 	Public Filings and Reports
	 	 	125	 
	7.10.

	 	Bank Account Information
	 	 	125	 
	7.11.

	 	Senior Notes; Debt
	 	 	125	 
	7.12.

	 	Other Reports
	 	 	126	 
	7.13.

	 	Other Information
	 	 	126	 
	7.14.

	 	Solvency of Italian Receivables Seller
	 	 	126	 
	7.15.

	 	Anti-Terrorism and Anti-Money Laundering Law Notices
	 	 	126	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VIII	 	 	 	 
	 

	 	AFFIRMATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	8.01.

	 	Corporate Existence, Etc.
	 	 	126	 
	8.02.

	 	Corporate Powers; Conduct of
Business, Etc.
	 	 	127	 
	8.03.

	 	Compliance with Laws, Etc.
	 	 	127	 
	8.04.

	 	Payment of Taxes and Claims; Tax Consolidation
	 	 	127	 
	8.05.

	 	Insurance
	 	 	127	 
	8.06.

	 	Inspection of Property; Books and Records; Discussions
	 	 	128	 
	8.07.

	 	ERISA Compliance
	 	 	129	 
	8.08.

	 	Foreign Employee Benefit Plan Compliance
	 	 	130	 
	8.09.

	 	Maintenance of Property
	 	 	130	 
	8.10.

	 	Further Assurances; Additional Collateral
	 	 	130	 
	8.11.

	 	Landlord and Bailee Waivers
	 	 	132	 
	8.12.

	 	Environmental Compliance
	 	 	132	 
	8.13.

	 	Insurance and Condemnation Proceeds
	 	 	133	 
	8.14.

	 	Compliance with Anti-Money Laundering Laws and Anti-Terrorism Laws
	 	 	133	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE IX	 	 	 	 
	 

	 	NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	9.01.

	 	Indebtedness
	 	 	134	 
	9.02.

	 	Sales of Assets
	 	 	136	 
	9.03.

	 	Liens
	 	 	137	 
	9.04.

	 	Investments
	 	 	139	 
	9.05.

	 	Accommodation Obligations
	 	 	140	 
	9.06.

	 	Restricted Payments
	 	 	141	 
	9.07.

	 	Conduct of Business; Subsidiaries; Acquisitions
	 	 	143	 
	9.08.

	 	Transactions with Shareholders and Affiliates
	 	 	144	 
	9.09.

	 	Restriction on Fundamental Changes
	 	 	145	 
	9.10.

	 	Sale and Leaseback Transactions; Operating Leases
	 	 	145	 
	9.11.

	 	Margin Regulations; Securities Laws
	 	 	146	 
	9.12.

	 	ERISA
	 	 	146	 
	9.13.

	 	Constituent Documents
	 	 	147	 
	9.14.

	 	Fiscal Year
	 	 	147	 
	9.15.

	 	Cancellation of Debt; Prepayment of Indebtedness; Certain Amendments
	 	 	147	 
	9.16.

	 	Environmental Matters
	 	 	148	 
	9.17.

	 	Cash Management
	 	 	148	 
	9.18.

	 	No Restrictions on Subsidiary Dividends
	 	 	148	 
	9.19.

	 	No Violation of Anti-Terrorism Laws
	 	 	148	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE X	 	 	 	 
	 

	 	FINANCIAL COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	10.01.

	 	Excess Availability
	 	 	149	 
	10.02.

	 	Maximum Leverage Ratio
	 	 	149	 
	10.03.

	 	Minimum Fixed Charge Coverage Ratio
	 	 	149	 
	10.04.

	 	Maximum Capital Expenditures
	 	 	149	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE XI	 	 	 	 
	 

	 	EVENTS OF DEFAULT; RIGHTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	11.01.

	 	Events of Default
	 	 	149	 
	11.02.

	 	Rights and Remedies
	 	 	153	 
	11.03.

	 	Cash Collateral
	 	 	154	 
	11.04.

	 	License for Use of Software and Other Intellectual Property
	 	 	155	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE XII	 	 	 	 
	 

	 	THE ADMINISTRATIVE AGENT	 	 	 	 
	 
	 	 	 	 	 	 
	12.01.

	 	Appointment.
	 	 	155	 
	12.02.

	 	Nature of Duties
	 	 	156	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	12.03.

	 	Rights, Exculpation, Etc.
	 	 	157	 
	12.04.

	 	Reliance
	 	 	157	 
	12.05.

	 	Indemnification
	 	 	158	 
	12.06.

	 	CNAI Individually
	 	 	158	 
	12.07.

	 	Successor Administrative Agents; Resignation of Administrative Agents
	 	 	158	 
	12.08.

	 	Relations Among Lenders
	 	 	159	 
	12.09.

	 	Concerning the Collateral and the Loan Documents
	 	 	159	 
	12.10.

	 	No Reliance on Administrative Agent’s Customer Identification Program
	 	 	162	 
	12.11.

	 	USA Patriot Act
	 	 	162	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE XIII	 	 	 	 
	 

	 	CO-BORROWER PROVISIONS	 	 	 	 
	 
	 	 	 	 	 	 
	13.01.

	 	Domestic Borrowers
	 	 	163	 
	13.02.

	 	Multicurrency Borrowers
	 	 	163	 
	13.03.

	 	Separate Actions
	 	 	163	 
	13.04.

	 	Obligations Absolute and Unconditional
	 	 	163	 
	13.05.

	 	Waivers and Acknowledgements
	 	 	164	 
	13.06.

	 	Contribution Among Borrowers
	 	 	165	 
	13.07.

	 	Subrogation
	 	 	166	 
	13.08.

	 	Subordination
	 	 	166	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE XIV	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	14.01.

	 	Lender Assignments and Participations
	 	 	167	 
	14.02.

	 	Expenses
	 	 	170	 
	14.03.

	 	Indemnity
	 	 	171	 
	14.04.

	 	Change in Accounting Principles
	 	 	172	 
	14.05.

	 	Setoff
	 	 	173	 
	14.06.

	 	Ratable Sharing
	 	 	173	 
	14.07.

	 	Amendments and Waivers
	 	 	174	 
	14.08.

	 	Notices
	 	 	176	 
	14.09.

	 	Survival of Warranties and Agreements
	 	 	177	 
	14.10.

	 	Failure or Indulgence Not Waiver; Remedies Cumulative
	 	 	178	 
	14.11.

	 	Marshaling; Payments Set Aside
	 	 	178	 
	14.12.

	 	Severability
	 	 	178	 
	14.13.

	 	Headings
	 	 	178	 
	14.14.

	 	Governing Law
	 	 	178	 
	14.15.

	 	Limitation of Liability
	 	 	178	 
	14.16.

	 	Successors and Assigns
	 	 	179	 
	14.17.

	 	Certain Consents and Waivers
	 	 	179	 
	14.18.

	 	Counterparts; Effectiveness; Inconsistencies
	 	 	181	 
	14.19.

	 	Limitation on Agreements
	 	 	181	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	14.20.

	 	Confidentiality
	 	 	181	 
	14.21.

	 	Currency Conversions
	 	 	181	 
	14.22.

	 	Entire Agreement
	 	 	182	 
	14.23.

	 	Advice of Counsel
	 	 	182	 
	14.24.

	 	Joint Arrangers, Joint Bookrunners and Syndication Agent
	 	 	183	 
	14.25.

	 	Termination of the Multicurrency Facility
	 	 	183	 
	14.26.

	 	Amendment and Restatement
	 	 	183	 







 









 








Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	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	 	 






 









 







Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	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	 	 






 









 






Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	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 1.01.9

	 	—
	 	Permitted Financial Institutions	 	 
	 
	 	 	 	 	 	 
	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 7.05-A

	 	—
	 	Monthly Domestic Borrowing Base Delivery Dates	 	 
	 
	 	 	 	 	 	 





 









 





Table of Contents

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	Schedule 7.05-B

	 	—
	 	Monthly Multicurrency Borrowing Base Delivery Dates	 	 
	 
	 	 	 	 	 	 
	Schedule 7.05-C

	 	—
	 	Semi-Monthly Domestic Borrowing Base Delivery Dates	 	 
	 
	 	 	 	 	 	 
	Schedule 7.05-D

	 	—
	 	Semi-Monthly Multicurrency Borrowing Base Delivery Dates	 	 
	 
	 	 	 	 	 	 
	Schedule 9.02-B

	 	—
	 	Sale of Assets	 	 
	 
	 	 	 	 	 	 
	Schedule 9.04

	 	—
	 	Investments in Disbursement Accounts	 	 
	 
	 	 	 	 	 	 
	Schedule 9.10

	 	—
	 	Sale and Leaseback Transactions