EXHIBIT 10.4
RECOURSE AND INDEMNITY AGREEMENT
THIS RECOURSE AND INDEMNITY AGREEMENT dated as of October 21, 1998
(Agreement) is made and entered into by and between GENERAL ELECTRIC CAPITAL
CORPORATION , a New York corporation ("GECC"), NMHG FINANCIAL SERVICES, INC., a
Delaware corporation ("Corporation"), and NACCO MATERIALS HANDLING GROUP, INC.,
a Delaware corporation ("NMHG").
WHEREAS, NMHG, through various subsidiaries and affiliates,
manufacturers and distributes materials handling equipment ("NMHG Equipment");
WHEREAS, NMHG also distributes NMHG Equipment through dealers located
in the United States of America (such dealers and any future dealers being
hereinafter collectively referred to as "DeaIers" and each a "Dealer");
WHEREAS, on October 27, 1989, Yale Materials Handling Corporation
("Yale"), acquired, pursuant to a Stock Purchase Agreement dated as of such date
("Stock Purchase Agreement"), twenty percent (20%) of the issued and outstanding
shares of the capital stock of Yale Financial Services, Inc. ("Corporation")
from GECC. As a result thereof, the Corporation was then owned twenty percent
(20%) by Yale and eighty percent (80%) by GECC;
WHEREAS, in conjunction with the above-described stock purchase, Yale
and GECC entered into the Joint Venture and Shareholders Agreement ("Original
Shareholders Agreement") as of November 8, 1989 which Agreement related to the
internal governance and day-to-day management and operations of the Corporation.
In conjunction with the negotiation of the Original Shareholders Agreement and
the purchase of certain Wholesale Accounts from Heller Financial, Inc., Yale
entered into the Guaranty and Indemnity Agreement dated June 30, 1988 in favor
of GECC ("First Guaranty Agreement") pursuant to which Yale unconditionally
guaranteed the prompt payment and performance to GECC and the Corporation of all
of the obligations of each Dealer under certain inventory/accounts receivable
financing accounts purchased at that time and all such future accounts entered
into thereafter;
WHEREAS, as a result of a corporate reorganization effective as of
January 1, 1994, NMHG and Yale entered into a Stock Purchase Agreement pursuant
to which Yale sold all of its interest in the Corporation to NMHG and assigned
to NMHG all of Yale's duties, obligations and benefits under the Original
Shareholders Agreement and all other agreements related thereto, including,
without limitation, the First Guaranty Agreement;
WHEREAS, NMHG and GECC have now determined to revise the nature of
their relationship to areas outside of the United States (which global
relationship shall be governed by the terms of an Operating Agreement; the
"International Operating Agreement") executed between NMHG, GECC and various
international affiliates and subsidiaries of GECC and NMHG) and additionally
expand the business scope of the Corporation to provide certain types of
financing to the Dealers and to the customers of NMHG and/or the Dealers
("Customers") for all types and brands of NMHG Equipment. In conjunction
therewith, NMHG and GECC have
determined to amend and restate the Original Agreement (the Restated and Amended
Joint Venture and Shareholders Agreement shall be referred to as the
"Shareholders Agreement"). It is intended that in conjunction with the
commencement of the Shareholders Agreement, the name of the Corporation shall be
changed to NMHG Financial Services, Inc.;
WHEREAS, on November 27, 1996, the First Guaranty Agreement was amended
to expand the scope of the guaranty contained therein to GECC and certain of its
other subsidiaries to induce such subsidiaries to provide other loans and
extensions of credit to the Dealers evidencing the financing of
inventory/accounts receivable. The amendment and restatement of the first
Guaranty Agreement shall hereinafter be referred to as the "Second Guaranty
Agreement"; and
WHEREAS, in conjunction with the execution of the Shareholders
Agreement and the International Operating Agreement, GECC and NMHG desire, with
respect to Wholesale Accounts, to amend the nature of the First and Second
Guaranty Agreements to coincide with the new international nature of the
arrangement between GECC and NMHG.
NOW THEREFORE, in consideration of the above premises, the mutual
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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1.01 "CUSTOMER" shall mean and include any customer of a Dealer.
1.02 "PERSON" shall mean and include any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any political subdivision thereof.
1.03 "WHOLESALE ACCOUNT" shall mean and include any loan or other extension of
credit to a Dealer, whether in connection with the acquisition of NMHG Equipment
by the Dealer or otherwise, but shall not include any loan or other extension of
credit by the Corporation to any Customer.
1.04 "WHOLESALE ACCOUNT DOCUMENTS" shall mean any documents evidencing any
Wholesale Account.
ARTICLE II
RECOURSE FOR WHOLESALE ACCOUNTS
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2.01 RECOURSE FOR WHOLESALE ACCOUNTS. In the event of a default under any of the
Wholesale Accounts entered into by the Corporation during the period beginning
on the date hereof and continuing to the date five (5) years from the date
hereof ("Base Term"), NMHG will, within twenty (20) days of demand, repurchase
any such Wholesale Account(s) affected by such default and pay the Corporation,
the amount then owed by the Dealer to the Corporation under the default pursuant
to the terms of the respective Wholesale Account Documents ("Repurchase Price").
For purposes of this Section 2.01, default is defined as the occurrence of any
event which would, under the terms of the Wholesale Account Documents,
constitute a default. It is not contemplated that the Corporation will
automatically exercise its rights to demand repurchase of any Wholesale
Account(s) under this Section unless collection of such Account(s) is deemed to
be unlikely. Failure on the part of the Corporation to exercise such right shall
not constitute a waiver of such right. Upon receipt by the Corporation of the
full amount of the Repurchase Price for any Wholesale Account(s), and provided
that NMHG is not otherwise in Default under this Agreement, the Corporation will
assign all of its right, title and interest in such Account(s) to NMHG (or its
designee) without recourse to, or warranty from (of any kind whatsoever), the
Corporation.
(a) Anything in this Agreement to the contrary notwithstanding, NMHG
hereby agrees that its obligations under this Section 2.01 shall be primary,
absolute, continuing and unconditional, irrespective of, and unaffected by, any
of the following actions or circumstances (regardless of any notice to, or
consent of, NMHG): (aa) the genuineness, validity, regularity and enforceability
of any Wholesale Account; (bb) any extension, renewal, amendment, change, waiver
or other modification by the Corporation of any Wholesale Account; (cc) the
absence of, or delay in, any action to enforce the terms of any Wholesale
Account; (dd) the release of, extension of time for payment or performance by,
or any other indulgence granted to the Dealer or any other person with respect
to any Wholesale Account by operation of law or otherwise; (ee) the existence,
value, condition, loss, subordination or release (with or without substitution)
of, or failure to have title to or perfect and maintain a security interest in,
or the time, place and manner of any sale or other disposition of any NMHG
Equipment, collateral or security given in connection with any Wholesale
Account, or any other impairment (whether intentional or negligent, by operation
of law or otherwise) of the Corporation's rights to any such NMHG Equipment,
collateral or security; (ff) any Dealer's voluntary or involuntary bankruptcy,
assignment for the benefit of creditors, reorganization, or similar proceedings
affecting the Dealer or any of its assets; or (gg) any other action or
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor. Notwithstanding any provision to the contrary
herein, NMHG shall have no obligation to repurchase any Wholesale Account
pursuant to this Section 2.01 under any of the following circumstances: (i)
solely with respect to Wholesale Accounts which are documented solely by the
Corporation, if a Wholesale Account proves unenforceable due to the fact that
the applicable Wholesale Account Documents are incomplete, (ii) solely with
respect to Wholesale Accounts where the Corporation is responsible for the
perfection of its security interest in the respective NMHG Equipment, if a
Wholesale Account proves unenforceable due to a failure of the GE Capital
Company to obtain and perfect a valid first priority security interest in such
Equipment, or (iii) if a Wholesale Account falls into default solely because the
Corporation is in default of its obligations under the applicable Wholesale
Account Documents.
(b) At least One-Hundred and Eighty (180) days prior to the expiration
of the Base Term, the Corporation, GE Capital and NMHG shall enter into
discussions with respect to the continuing need for recourse on Wholesale
Accounts. In the event that the Corporation, GE Capital and NMHG have not
reached a mutual agreement as to the provision of recourse on Wholesale Accounts
for the period following the expiration of the Base Term on or before the
expiration of the Base Term, the Corporation may at the expiration of the Base
Term, in its sole discretion, cease providing Wholesale Accounts to Dealers.
Notwithstanding any provision to the contrary herein, with respect to any and
all obligations of NMHG as set forth in this Section 2.01 with respect to
Wholesale Accounts which may arise during the Base Term ("Base Term
Obligations"), those Base Term Obligations shall nevertheless continue and
remain undischarged until the same are indefeasibly paid and performed in full.
2.02 CERTAIN WAIVERS. With respect to NMHG's recourse obligation set forth in
Section 2.01, notice of acceptance of thereof and of any default by any Dealer
or any other Person is hereby waived. Presentment, protest, demand, and notice
of protest, demand and dishonor of any Wholesale Account, and the exercise of
possessory, collection or other remedies on any Wholesale Account, are hereby
waived. Notice of adverse change in any Dealer's financial condition or of any
other fact which might materially increase the risk of NMHG is also waived. All
settlements, compromises, accounts stated and agreed balances made in good faith
between the Corporation and any Dealer shall be binding upon NMHG.
2.03 NO SUBROGATION. Without the Corporation's prior written consent, NMHG shall
not exercise any rights which it may acquire against any Dealer or the NMHG
Equipment or any other collateral or security by way of subrogation under this
Agreement, nor shall NMHG seek or attempt to exercise or enforce any of the
Corporation's rights or remedies against any Dealer or the NMHG Equipment or any
of the collateral or security in respect of any payments made by NMHG hereunder,
unless and until all of the obligations of such Dealer hereby guaranteed have
been paid and performed in full. However, nothing in this Section shall be
deemed to prohibit NMHG from making demand upon, or suing, any Dealer for any
payment made by NMHG on behalf of such Dealer under this Agreement, so long as
such demand or suit does not involve (i) any attempt to accelerate or otherwise
require such Dealer to pay any amount not paid by NMHG, or (ii) any attempt to
repossess, foreclose upon, or otherwise proceed against the NMHG Equipment or
any other collateral or security (whether or not NMHG may also have a security
interest in or lien upon the same).
2.04 DEALER CREDIT LINES. In consideration of the recourse set forth above, NMHG
and the Corporation shall work together to determine, from time to time, the
maximum amount of credit ("Credit Line") that will be extended to each Dealer.
However, it is expressly agreed and understood that it shall be no defense to
NMHG's obligations under this Article II if such Credit Line is ever exceeded
for any reason whatsoever.
2.05 TERMINATION. The recourse obligation set forth above may be terminated by
NMHG at any time as to any Dealer upon delivery to the Corporation of a written
notice of such termination, but as to all "pretermination obligations" those
obligations shall nevertheless continue and remain undischarged until the same
are indefeasibly paid and performed in full. For these purposes, "pretermination
obligations" shall mean and include all of the Dealer's obligations under any
Wholesale Account in existence, or any proposed Wholesale Account for which the
Corporation may have made a commitment, on or before delivery of such written
notice of termination.
ARTICLE III
INDEMNITIES
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3.01 LENDER LIABILITY. NMHG hereby agrees to indemnify, save and keep harmless
the Corporation, its respective agents, employees, successors and assigns from
and against any and all losses, damages, penalties, injuries, claims, actions
and suits, including legal expenses and outside attorneys' fees, of whatsoever
kind and nature, in contract or tort (collectively, "Losses") arising out of or
in connection with (i) any decision or recommendation by NMHG to limit,
terminate or otherwise modify any Dealer's Credit Line, (ii) any decision or
recommendation by NMHG to the effect that the Corporation should not enter into
any Wholesale Account with any Dealer, (iii) any refusal by the Corporation to
enter into any Wholesale Account with any Dealer by reason of NMHG's termination
of the recourse set forth in Article 2 above with respect to such Dealer's
obligations, or (iv) any termination or other modification of any Dealer's
franchise by NMHG.
3.02 PRODUCT LIABILITY. NMHG hereby also agrees to indemnify, save and keep
harmless, the Corporation, its respective agents, employees, successors and
assigns from and against any and all Losses arising out of or in connection with
the manufacture, sale, delivery, use, specifications, performance, operation or
condition of any NMHG Equipment.
3.03 DEFENSE. NMHG shall, upon written request, defend any actions based on any
matter covered by the indemnities contained in Section 3.01 or 3.02 above
(collectively, "Indemnities").
3.04 SURVIVAL. The Indemnities shall survive the expiration or termination of
this Agreement.
ARTICLE IV
COLLATERAL AUDITS
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4.01 AUDITS. Upon request, from time to time, by the Corporation, NMHG shall
cause an audit to be performed as to all of the collateral or security of any
Dealer for any obligation to the Corporation ("Collateral Audit"). At NMHG's
option, such Collateral Audit shall be performed by (i) an auditor not related
to the Corporation which has been approved by the Corporation in writing (a
"Third Party Audit") or (ii) by a representative of NMHG (a "NMHG Audit"). If
NMHG elects to have a NMHG Audit, NMHG shall give reasonable advance written
notice to the Corporation and the Corporation shall have the right to have a
respective representative present at the NMHG Audit. In any case, NMHG shall
provide the Corporation with a complete written report shortly after any
Collateral Audit ("Audit Report") and such Audit Report shall include, but not
be limited to, a duplicate copy of any and all written reports prepared by any
third party auditor.
4.02 COSTS. (a) The cost of any Third Party Audits performed in any calendar
year shall be borne solely by NMHG. (b) NMHG and the Corporation shall pay their
own costs in connection with any NMHG Audit.
ARTICLE V
MISCELLANEOUS
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5.01 ASSIGNMENT. The Corporation may not assign its respective rights hereunder,
without the prior written consent of NMHG. NMHG may not delegate any of its
duties or obligations hereunder without the prior written consent of the
Corporation.
5.02 SUCCESSORS AND PERMITTED ASSIGNS. The respective rights and obligations of
the parties set forth in this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
5.03 NOTICES. All notices permitted or required to be given hereunder shall be
in writing and shall be delivered, via certified mail (return receipt
requested), overnight courier, hand delivery or telefax, to the parties at the
following addresses (or at such other address for a party as may be specified by
like notice):
(i) If to the Corporation or GECC:
GENERAL ELECTRIC CAPITAL CORPORATION
44 Old Ridgebury Road
Danbury, CT 06810
Attention: Edward Simoneau
Telefax No.: 203-796-2352
(ii) If to NMHG:
NACCO MATERIALS HANDLING GROUP, INC.
650 NE Holladay Street
Suite 1600
Portland, Oregon 97232
Attn: General Counsel
Telefax No.:503-721-6001
Such notices shall be deemed delivered upon receipt.
5.04 HEADINGS. Article and Section headings used in this Agreement are for
convenience of reference only and shall not be used in interpreting or
construing or affecting the meaning or construction of this Agreement.
5.05 COUNTERPARTS. This Agreement may be executed by the parties hereto in any
number of counterparts, each of which shall be deemed to be an original but all
of which together shall constitute but one and the same instrument.
5.06 SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of the remaining provisions of this Agreement.
5.07 FURTHER ACTS. The parties agree to take such further action and to execute
such further documents or instruments which are necessary and appropriate to
complete or give effect to the transactions contemplated hereby.
5.08 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior agreements and understandings, both
written and oral, with respect to the subject matter hereof. There are no
representations or warranties of, or conditions to the obligation of, any party
hereto except as expressly set forth in this Agreement. This Agreement may not
be altered or varied nor its provisions waived except in a writing duly executed
by GECC, the Corporation and NMHG.
5.09 GOVERNING LAW AND JURISDICTION. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York. Any and all
disputes, controversies or claims arising out of, or relating to, this Agreement
or any of the Other Agreements shall be determined by arbitration in accordance
with the Arbitration Rules of the American Arbitration Association. The number
of arbitrators shall be three. One arbitrator each shall be appointed by NMHG
and GECC respectively, and the third arbitrator, who shall serve as chairman of
the tribunal, shall be appointed by the American Arbitration Association. The
place of arbitration shall be New York City. The language of the arbitration
shall be English and any arbitral award arising from any arbitration pursuant to
this paragraph shall be final and binding upon all parties hereto and no party
shall seek recourse to a court of law or other authorities to appeal for
revision of such decision or any other ruling of the arbitrator. The cost of the
arbitration
shall be borne by the party who does not prevail in the arbitration proceeding
or as is otherwise decided by the arbitration panel. The question of whether a
dispute is governed by this arbitration clause shall itself be determined by
arbitration.
5.10 CONTINUATION OF LIABILITY. Notwithstanding any of the foregoing, any and
all liabilities and obligations of NMHG arising under either the First Guaranty
Agreement or the Second Guaranty Agreement currently existing at the time of the
execution of this Agreement shall not be modified in any way whatsoever by this
Agreement. Additionally, the terms of this Agreement shall not apply to, or
otherwise modify the obligations and liabilities of NMHG with respect to: (i) in
regard to the Corporation, any Wholesale Account entered into prior to the date
of this Agreement or (ii) in regard to GECC or any other party to either the
First or Second Guaranty Agreement, any Wholesale Account entered into prior to
the execution of the International Operating Agreement by any such party. In
either of such cases, the terms of either the First Guaranty Agreement or the
Second Guaranty Agreement (as the case may be) shall apply to such Wholesale
Accounts. To the extent that any Wholesale Account is entered into by the
Corporation, GECC or any of its subsidiaries and affiliates, and such Wholesale
Account is the subject of either this Agreement or the International Operating
Agreement, the terms of the First Guaranty Agreement and the Second Guaranty
Agreement shall be considered to terminated with respect to any such Wholesale
Account.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute and deliver this Agreement as of the first date above
written.
GENERAL ELECTRIC CAPITAL NACCO MATERIALS
CORPORATION HANDLING GROUP, INC.
By: /s/ Christopher H. Richmond By: /s/ Jeffrey L. Mattern
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Title: Vice President Title: Treasurer
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NMHG FINANCIAL SERVICES, INC.
By: /s/ Edward J. Simoneau
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Title: Executive Vice President
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