Exhibit 10.7
INTERNATIONAL OPERATING AGREEMENT
This INTERNATIONAL OPERATING AGREEMENT (the "Agreement") is made and
entered into this 15th day of April, 1998, by and between NACCO Materials
Handling Group, Inc. ("NMHG") and the subsidiaries and affiliates of NMHG listed
on Exhibit A, attached hereto (all such subsidiaries and affiliates as listed on
said Exhibit, as it may be amended from time to time, shall be referred to
collectively as the "NMHG Companies" and individually as an "NMHG Company") and
General Electric Capital Corporation ("GE Capital") and the subsidiaries and
affiliates of GE Capital listed on Exhibit B, attached hereto (all such
subsidiaries and affiliates as listed on said Exhibit, as it may be amended from
time to time and shall be referred to collectively as the "GE Capital
Companies", individually as a "GE Capital Company").
RECITALS
--------
WHEREAS, NMHG and the NMHG Companies are in the business of
manufacturing and distributing various types of materials handling equipment
(collectively, "Equipment") which they either: (i) ship to dealers (each, a
"Dealer", collectively "Dealers") who purchase the Equipment as inventory for
resale to third-party customers (each, a "Customer", collectively "Customers")
or (ii) sell directly to Customers;
WHEREAS, the GE Capital Companies are in the business of providing
financing in various forms for the acquisition and/or purchase of items such as
the Equipment to non-U.S. Dealers and Customers;
WHEREAS, in order to promote the sale and distribution of Equipment on
an international basis, NMHG and the NMHG Companies have agreed to, pursuant to
the terms and conditions of this Agreement, refer their respective Customers and
Dealers to the GE Capital Companies, and the GE Capital Companies, pursuant to
the terms of this Agreement, may enter into retail or wholesale financing with
such Customers or Dealers, as the case may be.
NOW THEREFORE, in consideration of the above premises and mutual
covenants contained hereinabove, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
Article I
Definitions
-----------
1.1 "ACCOUNT" shall mean any Wholesale or Retail Account.
1.2 "ACCOUNT PARTY" shall mean, with respect to any Account, any
respective Customer, Dealer or any other Person (including, but not limited to,
any guarantors) named in any of the Documentation related to such Account.
1.3 "AUTHORIZED SALE PRICE" shall mean, with respect to any Equipment
subject to remarketing, the minimum sales price that the NMHG Group (or any of
its designated agents) may accept regarding a third party's offer to buy such
Equipment, without submitting the offer to any of the GE Capital Companies for
approval. The Authorized
1
Sale Price shall be determined by the GE Capital Companies as is set forth in
Article 5 below.
1.4 "BOOK VALUE" shall mean with respect to each Wholesale or Retail
Account, the balance of any such Account, including, without limitation,
periodic payments and other amounts due and accrued thereunder and any residual
value taken on the Equipment.
1.5 "BUSINESS DAY" shall mean, with respect to any obligation of a GE
Capital Company or NMHG Company to which this term applies, any day other than a
Saturday, Sunday or a day on which banking institutions in the capital city of
the country in which such GE Capital Company or NMHG Company has its principal
place of business (as the case may be) are authorized or required to close.
1.6 "CUSTOMER" shall have the meaning ascribed to it in the first
paragraph of the Recitals. A non-U.S. Customer shall be any Customer which is
domiciled outside of the United States of America.
1.7 "DEALER" shall have the meaning ascribed to it in the first
paragraph of the Recitals. A non-U.S. Dealer shall be any Dealer which is
domiciled outside of the United States of America.
1.8 "DEFAULT" under this Agreement shall, with respect to any party,
mean: (i) if such party breaches any of its obligations under this Agreement and
fails to cure within thirty (30) days after written notice thereof; (ii) if any
representation or warranty made by such party in connection with this Agreement
shall be false or misleading in any material respect; (iii) if such party
becomes insolvent, ceases to do business as described above or ceases to exist
as a separate corporate entity; or (iv) if a petition is filed by or against
such party under any bankruptcy or insolvency laws (or similar proceeding).
1.9 "DOCUMENTATION" shall mean any and all documents evidencing an
Account, including but not limited to leases, lease/purchase agreements, notes,
security agreements and all schedules, supplements, addenda and annexes attached
thereto.
1.10 "EQUIPMENT" shall have the meaning ascribed to it in the Recitals
above.
1.11 "EXTENSION OF CREDIT" shall mean any loan made by a GE Capital
Company to a Dealer pursuant to a Wholesale Account for the purpose of funding
the purchase of inventory by the Dealer.
1.12 "FAIR MARKET VALUE" shall mean an amount equal to the value which
would be obtained in an arm's-length transaction between an informed and willing
buyer (other than a lessee currently in possession or a used equipment dealer)
and an informed and willing seller under no compulsion to sell and, in such
determination, costs of removal from the location of current use shall not be a
deduction from such value.
1.13 "NMHG GROUP" shall have the meaning ascribed to it in Article 2.1.
1.14 "NET REMARKETING PROCEEDS" shall mean the gross cash proceeds
actually received by the GE Capital Companies from the sale of Equipment
remarketed pursuant to Article 5 less: (i) any applicable sales or other taxes,
(ii) any costs incurred by the GE
2
Capital Companies with respect to any of its duties hereunder, including but not
limited to, any repair or other costs or expenses incurred pursuant to Article 5
hereof
1.15 "RETAIL ACCOUNT" shall mean any conditional sale contracts, lease
agreements, chattel mortgages, promissory notes or other choses in action
executed between a GE Company and a non-U.S. Customer.
1.16 "PERSON" shall mean any entity, including without limitation, any
natural person, trust, corporation, estate, joint stock association,
partnership, firm, sovereign entity, government or governmental agency.
1.17 "WHOLESALE ACCOUNT" shall mean and include any loan or other
extension of credit, now or hereafter, by a GE Capital Company to any
non-U.S.Dealer for the acquisition of Equipment by the Dealer.
Article II
Customer Referral Program-retail Accounts
-----------------------------------------
2.1 CUSTOMER REFERRALS GENERALLY. NMHG and the NMHG Companies
(collectively, the "NMHG Group") hereby agree to refer all non-U.S. Customers
who are interested in financing the acquisition of Equipment to the applicable
GE Capital Company. Said GE Capital Company may enter into Retail Accounts with
such Customers, in its sole discretion, upon such terms and conditions as said
GE Capital Company deems acceptable, but shall not be obligated to do so. To
induce the GE Capital Companies to offer financing to non-U.S. Customers
hereunder (but without obligating any GE Capital Company to do so), each of the
NMHG Group agrees with respect to any country subject to this Agreement: (i) to
notify each non-U.S. Customer, or use their respective best efforts to have
their respective non-U.S. Dealers notify their respective non-U.S. Customers,
that financing may be available from the GE Capital Companies; and (ii)
otherwise assist the GE Capital Companies in making proposals for financing
available to each non-U.S. Customer. Each of the NMHG Group further agrees not
to recommend, or direct any of their respective majority-owned subsidiaries or
affiliates to recommend, any other finance source to a non-U.S. Customer unless
and until: (x) the applicable GE Capital Company has submitted a proposal for
financing to such Customer; (y) the applicable GE Capital Company has rejected
such Customer; or (z) such Customer has indicated that it is not interested in
obtaining financing from any of the GE Capital Companies. Notwithstanding any
provision to the contrary herein, it is expressly understood by each of the NMHG
Group, GE Capital and each of the GE Capital Companies that all Customers shall
be free to utilize any financing source of their own choosing. The obligations
of the NMHG Group as set forth in this Section 2.1 shall be applicable only to
countries where a GE Capital Company has the ability to enter into Retail
Accounts.
2.2 STANDARD RATES AND PRODUCTS. The respective members of the NMHG
Group and the respective GE Capital Companies shall mutually develop and agree
on the products (including, without limitation, products which contain specific
references to the private label brands sold by the NMHG Companies) and standard
rates, terms and conditions related thereto which shall be offered, from time to
time, to the non-U.S.
3
Customers with respect to Retail Accounts on a country by country or region by
region basis.
2.3 CREDIT REVIEW PROCESS. For each proposed Retail Account, the
referring member of the NMHG Group or the applicable Dealer (as the case may be)
shall provide such financial and business information as they may possess
concerning a Customer upon the reasonable request of the respective GE Capital
Company. Said member of the NMHG Group or the applicable Dealer (as the case may
be) shall also provide the following to the respective GE Capital Company for
every proposed Retail Account: (i) an itemized list of the Equipment to be
financed, including, but not limited to a complete description of such
Equipment; and (ii) a description of any additions, improvements or
reconfigurations to, or of, the Equipment which deviate from NMHG's standard
specifications for the Equipment. Each respective GE Capital Company will be
primarily responsible for obtaining from the respective Customer the financial
and business information which the GE Capital Company deems necessary in order
to consider a Customer for any Retail Account. Upon the request of the
respective GE Capital Company, the referring member of the NMHG Group shall
assist said GE Capital Company in obtaining such information from Customer. Each
member of the NMHG Group further acknowledges that each GE Capital Company shall
have the absolute right to approve or disapprove Customers and proposed Retail
Accounts in its sole discretion pursuant to its independently determined
internal credit and investment standards and shall have no liability for its
disapproval of any Customer or proposed Retail Accounts; provided however, that
the respective GE Capital Companies and the NMHG Group shall, on a country by
country or region by region basis, use their best efforts to determine mutually
acceptable standards for the approval of Customers for proposed Retail Accounts
(collectively, "Target Approval Rates"). Target Approval Rates shall be reviewed
annually by the respective GE Capital Companies and the NMHG Group and set by
mutual agreement of the applicable members of the NMHG Group and the GE Capital
Companies.
2.4 DOCUMENTATION. All Documentation shall be developed by and in form
and substance satisfactory to each of the GE Capital Companies in its sole
discretion. A GE Capital Company may, in its sole discretion, request a member
of the NMHG Group, or its respective agents or employees to assist in the
delivery of Documentation to, and the execution of Documentation by, Customers.
All Documentation for each Retail Account shall be prepared and negotiated
solely by each respective GE Capital Company.
2.5 REPRESENTATIONS AND WARRANTIES. For all Documentation which a
member of the NMHG Group assists in the execution and delivery of at the request
of a GE Capital Company pursuant to Paragraph 2.4 above, the respective member
of the NMHG Group will warrant and represent that: (i) all names, addresses,
dates and signatures are true and correct; (ii) the Equipment has been duly
delivered, installed and accepted by the Customer; and (iii) such Documents have
not been amended, changed, settled or compromised without the prior written
consent of the respective GE Capital Company.
4
2.6 ACCOUNT FUNDING. For each Retail Account, each respective GE
Capital Company shall pay to the respective member of the NMHG Group the full
amount of all invoices related to the Equipment that is the subject of the
Retail Account within five (5) Business Days after the date that such GE Capital
Company has received: (i) all fully executed and completed Documentation as
required pursuant to Paragraph 2.4 hereof; and (ii) where applicable, all
documentation necessary and appropriate to evidence and record the GE Capital
Company's interest in the Retail Account and the related Equipment.
Notwithstanding any provision to the contrary herein, if any invoice states
trade terms different than those set forth in the previous sentence, then the
respective GE Capital Company shall pay such invoices on the later of: (x) the
date specified in any such invoice; or (y) the date specified in this Paragraph
2.6.
Article III
Dealer Referral Program
-----------------------
3.1 DEALER REFERRALS GENERALLY. Each of the NMHG Group hereby agree to
refer all non-U.S. Dealers who are interested in financing the acquisition of
Equipment to the applicable GE Capital Company. Said GE Capital Company may
enter into Wholesale Accounts with such Dealers based upon the considerations
set forth in Section 3.3 hereof, upon such terms and conditions as said GE
Capital Company deems acceptable. To induce the GE Capital Companies to offer
financing to non-U.S. Dealers hereunder (but without obligating any GE Capital
Company to do so), each of the NMHG Group agrees: (i) to notify each non-U.S.
Dealer, or use their respective best efforts to have their respective
distributors notify their respective non-U.S. Dealers, that financing may be
available from the GE Capital Companies; and (ii) otherwise assist the GE
Capital Companies in making proposals for financing available to each non-U.S.
Dealer. Each of the NMHG Group further agrees not to recommend, or direct any of
their respective majority-owned subsidiaries or affiliates to recommend, any
other finance source to a non-U.S. Dealer unless and until: (x) the applicable
GE Capital Company has submitted a proposal for wholesale financing to such
Dealer; (y) the applicable GE Capital Company has rejected such Dealer; or (z)
such Dealer has indicated that it is not interested in obtaining financing from
any of the GE Capital Companies. Notwithstanding any provision to the contrary
herein, it is expressly understood by each of the NMHG Group, GE Capital and
each of the GE Capital Companies that all Dealers shall be free to utilize any
financing source of their own choosing. The obligations of the NMHG Group as set
forth in this Section 3.1 shall be applicable only to countries where a GE
Capital Company has the ability to enter into Wholesale Accounts.
3.2 STANDARD RATES AND PRODUCTS. The respective members of the NMHG
Group and the respective GE Capital Companies shall mutually develop and agree
on the products and the standard rates, terms and conditions related thereto
which shall be offered, from time to time, to the non-U.S. Dealers with respect
to Wholesale Accounts on a country by country or region by region basis.
5
3.3 CREDIT REVIEW PROCESS. For each proposed Wholesale Account, the
referring member of the NMHG Group shall provide such financial and business
information as they may possess concerning a Dealer upon the reasonable request
of the respective GE Capital Company. Each respective GE Capital Company will be
primarily responsible for obtaining from the respective Dealer the financial and
business information which the GE Capital Company deems necessary in order to
consider a Dealer for any Wholesale Account. Upon the request of the respective
GE Capital Company, the referring member of the NMHG Group shall assist said GE
Capital Company in obtaining such information from Dealer. During the Base Term
(as that term is defined in Section 6.8 hereof), each respective GE Capital
Company shall approve any Dealer for a Wholesale Account so long as at the time
of such approval: (i) the Dealer is not insolvent, a receiver has not been
appointed for all or of any part of the property of such Dealer, no assignment
for the benefit of creditors has been made by such Dealer, a petition in
bankruptcy (or any similar law) has not been filed by or against such Dealer:
(ii) the consummation of such Wholesale Account shall not cause the aggregate
investment in Wholesale Accounts by all of the GE Capital Companies to exceed
seventy-five million U. S. dollars (US$75,000,000) (this maximum investment
amount shall be reviewed by GE Capital operations management on an annual basis
and adjusted accordingly based on the financial status of NMHG); (iii) the
consummation of such Wholesale Account shall not violate any the corporate
business practices or policies of the respective GE Capital Company (as set
forth in The Spirit and the Letter of Our Commitment as published by GE Capital
from time to time and any addenda or amendments thereto) or any law or statute
applicable to such GE Capital Company. Following the expiration of the Base
Term, each member of the NMHG Group further acknowledges that each GE Capital
Company shall have the absolute right to approve or disapprove Dealers and
proposed Wholesale Accounts in its sole discretion pursuant to its independently
determined internal credit and investment standards and shall have no liability
for its disapproval of any Dealer or proposed Wholesale Accounts.
3.4 WHOLESALE ACCOUNT DOCUMENTS. All Wholesale Account Documents shall
be developed by each of the respective GE Capital Companies for the NMHG Group
taking into consideration the NMHG Group's specifications and needs, provided
however that any such Wholesale Account Documents shall, in their final form, be
in form and substance satisfactory to each of the respective GE Capital
Companies in its sole discretion. A GE Capital Company may, in its sole
discretion, request a member of the NMHG Group, or its respective agents or
employees to assist in the delivery of Documentation to, and the execution of
Documentation by, Dealers. All Documentation for each Wholesale Account shall be
prepared and negotiated solely by each respective GE Capital Company.
3.5 REPRESENTATIONS AND WARRANTIES. For all Documentation which a
member of the NMHG Group assists in the execution and delivery of at the request
of a GE Capital Company pursuant to Paragraph 3.4 above, the respective member
of the NMHG Group will warrant and represent that: (i) all names, addresses,
dates and signatures are true and correct; (ii) the Equipment has been duly
delivered and
6
accepted by the Dealer; and (iii) such Documents have not been amended, changed,
settled or compromised without the prior written consent of the respective GE
Capital Company.
3.6 WHOLESALE ACCOUNT FUNDING. For each Wholesale Account, the
respective GE Capital Company shall pay to the respective member of the NMHG
Group the full amount of all invoices related to the Equipment that is the
subject of the Wholesale Account within five (5) Business Days after the date
that the respective GE Capital Company has received such invoices. The
respective member of the NMHG Group will aggregate all invoices issued pursuant
to any Wholesale Accounts in any one day and send all such invoices to the
respective GE Capital Company on a periodic basis to be determined by mutual
agreement of the respective NMHG and GE Capital Companies.
3.7 RECOURSE FOR WHOLESALE ACCOUNTS.
(a) For the Base Term (as that term is described in Section 6.8 hereof)
of this Agreement, in the event of a default under any of the Wholesale Accounts
executed pursuant to this Agreement, NMHG will, within twenty (20) days of
demand, repurchase any such Wholesale Account(s) affected by such default and
pay the applicable GE Capital Company the amount then owed by the Dealer to such
GE Capital Company under the default pursuant to the terms of the respective
Documentation ("Repurchase Price"). For purposes of this Section 3.7, default is
defined as: (i) any amount payable under the applicable Documentation being 61
days past due; (ii) when a Dealer files, or has filed against it, a petition in
bankruptcy (or similar proceeding); (iii) the initiation of any insolvency
proceeding; or (iv) the occurrence of any other event which would, under the
terms of the Documentation, constitute a default. It is not contemplated that
the GE Capital Companies will automatically exercise their respective 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
any GE Capital Company to exercise such right shall not constitute a waiver of
such right. Upon receipt by the applicable GE Capital Company 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 GE Capital Company 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
applicable GE Capital Company.
(b) Anything in this Agreement to the contrary notwithstanding, NMHG
hereby agrees that its obligations under this Section 3.7 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 a GE Capital Company of any Wholesale Account; (cc) the
absence of, or delay in, any action to enforce the terms of any 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;
7
(ee) the existence, value, condition, loss, subordination or release (with or
without substitution) of, or failure to have title to or perfect a security
interest in, or the time, place and manner of any sale or other disposition of,
any 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 a GE Capital Company's rights to any such 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 3.7 under any of the following circumstances: (i) if a
Wholesale Account proves unenforceable due to the fact that the Documentation is
incomplete, (ii) solely with respect to Wholesale Accounts where a GE Capital
Company is responsible for the perfection of its title or security interest in
the respective 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 applicable GE Capital Company is in default of its
obligations under the applicable Documentation.
(c) At least One-Hundred and Eighty (180) days prior to the expiration
of the Base Term, GE Capital and NMHG shall enter into discussions with respect
to the continuing need for recourse on Wholesale Accounts on a
country-by-country or region-by-region basis. In the event that 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, GE Capital or any of the GE Capital
Companies may at the expiration of the Base Term, in their sole discretion,
terminate all or a part of this Agreement with respect to the provision of
Wholesale Accounts to Dealers. Notwithstanding any provision to the contrary
herein, with respect to any and all obligations of the NMHG Companies under this
Article 3.7 with respect to any 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.
3.8 AUDITS. Upon request, from time to time, by any of the GE Capital
Companies, the respective NMHG Company shall cause an audit to be performed as
to all of the collateral or security of any Dealer for any Wholesale Account
obligation to the respective GE Capital Company ("Collateral Audit"). At the
NMHG Company's option, such Collateral Audit shall be performed by (i) an
auditor not related to the GE Capital Companies which has been approved by the
respective GE Capital Company in writing (a "Third Party Audit") or (ii) by a
representative of the NMHG Companies (a "NMHG Audit"). If the respective NMHG
Company elects to have a NMHG Audit, the NMHG Company shall give reasonable
advance written notice to the respective GE Capital Company and such GE Capital
Company shall have the right to have a respective representative present at the
NMHG Audit. In any case, the NMHG company shall provide the respective GE
Capital Company 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. The cost of any Third Party Audits performed in any calendar year shall
be borne solely by
8
NMHG; provided however that the respective NMHG and GE Capital Companies shall
each pay their own costs in connection with any NMHG Audit.
Article IV
Referral Fees; Accounting Practices and Reports; Management
-----------------------------------------------------------
4.1 RETAIL ACCOUNTS REFERRAL FEE. For Retail Accounts closed from the
date hereof up to and including the second anniversary of this Agreement, no
Referral Fee shall be paid to any NMHG Company by any GE Capital Company. For
the period following the second anniversary of this Agreement and continuing for
the term of this Agreement, in the event that a GE Capital Company enters into a
Retail Account, said GE Capital Company shall pay a Referral Fee for that
Account to the referring member of the NMHG Group. On or before a date ninety
(90) days prior to the second anniversary of this Agreement, each of the NMHG
and GE Capital Companies shall meet to discuss the level at which the Referral
Fees shall be set (by mutual agreement of the respective parties) on a
region-by-region or county-by-country basis (as the case may be) based on an
analysis of historical financial data and experience over the previous period
since the inception of this Agreement. The Referral Fees shall be fixed for the
next calendar year period which will follow the second anniversary. The
respective NMHG and GE Capital Companies shall thereafter meet annually to
determine the Referral Fees for the coming calendar year. In the event that any
of the respective GE Capital and NMHG Companies cannot mutually agree on a
Referral Fee for any particular region or country (as the case may be) the
Referral Fee for Retail Accounts closed in such particular region or country
shall be equal to .0025 of the total funding made by the respective GE Capital
Company for each such Retail Account pursuant to Section 2.6 above (each, a
"Retail Funding"). Referral Fees shall be aggregated on an annual basis and
shall be paid within forty-five (45) days following the end of each calendar
year. All Referral Fee payments shall be denominated in U.S. Dollars equivalent
of local currency amounts in the manner used by the GE Capital Companies for
similar financing programs or in such other currencies and amounts that the
relevant parties shall agree.
4.2 ACCOUNTING PRACTICES AND REPORTS. Each GE Capital Company will
provide the respective NMHG Company or Companies (as the case may be) a monthly
report (sorted by country and issued on or before the twentieth day of each
month) which shall contain a listing of all Accounts which were delinquent as of
the end of previous month. Each GE Capital Company will provide the respective
NMHG Company or Companies (as the case may be) a quarterly report (sorted by
country) which shall contain the following: (i) a listing of all Accounts funded
during the previous quarter; (ii) a listing of all Accounts approved but not yet
funded as of the date of the report; (iii) a listing of Retail Accounts which
are due to expire over the twelve months subsequent to date of the report; and
(iv) any other data which NMHG and GE Capital mutually agree should be included
as part of such quarterly report.
4.3 COMPETITIVENESS. Each the GE Capital Companies and the NMHG
Companies will use their respective best efforts to ensure that each such
Company offers products which are competitive within their respective markets.
At the inception of this Agreement, the GE Capital Companies operating in the
United Kingdom, Germany and France shall endeavor to provide to Dealers and
Customers (as the case may be) financing at or near the following Target Rates:
9
(i) For Wholesale Accounts, the Target Rate shall be equal to 225
Basis Points over the then applicable Five (5) year Swap Rate;
(ii) For Retail Accounts, the Target Rate shall be equal to 250 Basis
Points over the then applicable Five (5) year Swap Rate.
For the purposes of this Section 4.3, the term "Five (5) year Swap
Rate" means the five year swap rate as quoted on the following systems:
Currency System
-------- ------
UK Pounds ICAQ - Reuters page
German DM ICAR - Reuters page
French Francs ICAS - Reuters page
The Target Rates for periods following the inception of this Agreement
shall be reviewed by the applicable GE Capital and NMHG Companies on a periodic
basis no less than every calendar quarter during the term of this Agreement and
said Target Rates shall be adjusted as deemed necessary by mutual agreement of
the applicable GE Capital and NMHG Companies based on a country-by-country or
region-by-region analysis (as the case may be).
4.4 MANAGEMENT OF THE PROGRAM. The overall management of the program
established by this Agreement will be subject to the review and recommendation
of several regional steering committees. Separate steering committees, one each
for Yale Brand and the Hyster Brand, will be established for each of (i) the
Americas (other than the U.S.), (ii) Europe and (iii) Asia and the Pacific Rim,
each consisting of four persons, two of whom shall be NMHG Company employees, as
applicable, designated by NMHG and two of whom shall be GE Capital Company
employees designated by GE Capital. The Steering Committees shall each be
responsible for coordinating the various periodic reviews which are specified in
this Agreement and determining the final disposition of such reviews in their
respective regions. Additionally, the Steering Committees shall perform the
following functions for their respective regions: (a) providing input for
development of new products; (b) setting response times; (c) setting and
monitoring Target Approval Rates;(d) providing input for development of
automated systems; (e) staffing and personnel matters; (f) reviewing
competitiveness and adequacy of program rates; and (g) oversight of general
program operations and mediation of problems to ensure the effectiveness of the
various retail and wholesale financing programs. All members of the Steering
Committees and other personnel utilized in connection therewith will be
employees of either NMHG, the NMHG Companies, GE Capital or the GE Capital
Companies and shall remain participants in any retirement or pension plan,
insurance, medical or other employee benefit plans of their respective
employers. No Steering Committee member designated by one shall be entitled to
any compensation from any of the parties to this Agreement for their
participation on a Steering Committee.
Article V
Equipment Related Services
--------------------------
5.1 REMARKETING SERVICES. For all Equipment, GE Capital and the GE
Capital Companies shall appoint any member of the NMHG Group as remarketing
agent to act and serve during the Remarketing Period (as defined below) as their
respective attorney-in-fact to provide the Remarketing Services (as defined
below) and such other
10
additional reasonable services as GE Capital or the GE Capital Companies may
request in connection with the sale and remarketing of the Equipment. As used in
this Agreement, the term "Remarketing Services" means and includes (i) use of
best efforts, including the advertisement of the Equipment in publications
distributed to potential buyers, to solicit firm cash offers for the purchase of
the Equipment as provided in Section 5.6 below, (ii) providing GE Capital or the
GE Capital Companies with information concerning the Fair Market Value of the
Equipment, (iii) inspecting and repairing the Equipment in accordance with
Section 5.3 below, and (iv) storing the Equipment as provided in Section 5.4
below. For Equipment which is subject to a Retail Account (which contemplates
the return of the Equipment to GE Capital or the GE Capital Companies) the term
of which is about to expire, the term "Remarketing Period" means a period
beginning on such expiration date and ending ninety (90) days thereafter. For
Equipment recovered or to be recovered as a result of a default under an
Account, the term "Remarketing Period" means a period beginning on the date of
default and ending one-hundred and eighty (180) days thereafter.
5.2 VALUATION OF THE EQUIPMENT. Within ten (10) Business Days after
receipt of the Equipment, the respective member of the NMHG Group shall submit
to the respective GE Capital Company an estimate of the Fair Market Value of the
Equipment. The respective GE Capital Company will then set the Authorized Sale
Price for the Equipment.
5.3 INSPECTION AND REPAIR OF EQUIPMENT. Within five (5) Business Days
after the receipt by the respective member of the NMHG Group of the Equipment,
said member shall, at no expense to the respective GE Capital Company, inspect
such Equipment and provide the respective GE Capital Company with a written
report describing any repairs that are necessary to put the Equipment into
salable condition. If requested in writing by said GE Capital Company, the
respective member of the NMHG Group shall promptly perform such repairs at such
cost. The respective GE Capital Company shall, upon completion of all such
repairs, and within thirty (30) days of receipt of an invoice detailing the
costs for repair actually incurred by said member of the NMHG Group, reimburse
said member for such costs. IT IS AGREED AND UNDERSTOOD THAT THE NMHG GROUP
SHALL HAVE NO AUTHORITY TO PERFORM ANY REPAIRS ON ANY EQUIPMENT EXCEPT TO THE
EXTENT SPECIFICALLY AUTHORIZED BY THE RESPECTIVE GE CAPITAL COMPANY, EXCEPT THAT
NO SUCH AUTHORIZATION IN WRITING BY ANY GE CAPITAL COMPANY SHALL BE REQUIRED IF
THE TOTAL COST OF THE REPAIRS SHALL NOT EXCEED THE EQUIVALENT OF US$500, SO LONG
AS SUCH AMOUNT IS EXPENDED ON A REPAIR OR REPAIRS WHICH ENHANCE THE FAIR MARKET
VALUE OF THE EQUIPMENT.
5.4 STORAGE OF EQUIPMENT. If storage of the Equipment is necessary
during the Remarketing Period, the respective member of the NMHG Group shall, at
no expense to the GE Capital Companies, store the Equipment on the respective
member of the NMHG Group's premises (or at another site designated thereby), in
a secure and commercially reasonable manner and shall make such Equipment
available for inspection by any prospective purchaser or the GE Capital
Companies during regular business hours. During such storage, risk of loss or
damage shall be borne by the NMHG Group.
5.5 STORAGE INDEMNITY. While any Equipment is being stored by the NMHG
Group, the NMHG Group shall indemnify, save and keep harmless GE Capital and the
GE Capital Companies, their respective agents, employees, successors and assigns
from and against any and all losses, damages, penalties, injuries, actions and
suits
11
(collectively, "Liabilities"), including litigation costs and attorneys' fees,
of whatsoever kind and nature, which may arise, directly or indirectly, out of
the duties and obligations of the NMHG Group under this Article V, including
without limitation, Liabilities related to personal injuries caused by the
Equipment and property damage suffered by the Equipment.
5.6 SOLICITATION OF OFFERS; SALE OF EQUIPMENT. The NMHG Group shall, at
its sole cost and expense, use its best efforts to obtain firm cash offers for
the purchase of the Equipment for the best price obtainable during the
Remarketing Period. The NMHG Group may accept such an offer within its sole
discretion if the purchase price is equal to, or exceeds, the Authorized Sale
Price. Any offer for less than the Authorized Sale Price may be submitted to the
respective GE Capital Company, but said GE Capital Company may accept or reject
such offer in its sole discretion. If the respective GE Capital Company rejects
such offer, the NMHG Group shall continue to solicit offers in the manner
described herein for the full term of the Remarketing Period. If an offer is
accepted, either by the NMHG Group or by the respective GE Capital Company, as
the case may be, the NMHG Group shall collect the purchase price, plus any
applicable sales or other taxes, in cash, and shall immediately remit same to
the respective GE Capital Company. Said GE Capital Company shall thereupon
execute a bill of sale (or such other form of documentation which is used to
show a transfer of title in the respective location of sale) and appropriate
title documentation to transfer ownership of the applicable Equipment to the
purchaser thereof on an "AS IS, WHERE IS", BASIS WITHOUT RECOURSE OR WARRANTY OF
ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, BY THE GE CAPITAL COMPANY ("AS IS
BASIS"). EXCEPT AS SPECIFIED IN THIS SECTION 5.6, THE NMHG GROUP SHALL HAVE NO
AUTHORITY, EXPRESS OR IMPLIED, TO SELL OR COMMIT TO SELL ANY EQUIPMENT ON ANY OF
THE GE CAPITAL COMPANIES' BEHALF WITHOUT THEIR RESPECTIVE PRIOR WRITTEN CONSENT,
AND THE NMHG GROUP SHALL ADVISE EACH PARTY FROM WHOM IT SOLICITS A BID THAT EACH
OFFER WITH AN OFFERING PRICE BELOW THE AUTHORIZED SALE PRICE IS SUBJECT TO
ACCEPTANCE OR REJECTION BY THE RESPECTIVE GE CAPITAL COMPANY AT ITS SOLE
DISCRETION.
5.7 REMARKETING FEE. As the NMHG Group's sole and exclusive
compensation for providing the Remarketing Services, the GE Capital Companies
will pay the NMHG Group a remarketing fee ("Remarketing Fee") if the Equipment
is sold by the respective GE Capital Company to any purchaser (other than the
NMHG Group) pursuant to a bid solicited by the NMHG Group during the Remarketing
Period. The Remarketing Fee shall be calculated as follows:
(i) For Equipment that is remarketed hereunder pursuant to an
expiration of a Retail Account, the Remarketing Fee shall be as follows: (i) in
the event that the Net Remarketing Proceeds are less than or equal to the Book
Value of the respective Account, no Remarketing Fee shall be paid; or (ii) in
the event that the Net Remarketing Proceeds are more than the applicable Book
Value, the Remarketing Fee shall be equal to fifty percent (50%) of the amount
of the excess of the Net Remarketing Proceeds over the Book Value;
(ii) For Equipment that is remarketed hereunder pursuant to a default
or other early termination of an Account, the Remarketing Fee shall be equal to
five percent (5%) of the Gross Proceeds.
5.8 EXPIRATION OF REMARKETING PERIOD. If any Equipment has not been
sold by the expiration of the Remarketing Period (including any extensions
thereof mutually
12
agreed upon), then the respective member of the NMHG Group shall have the option
to, within five (5) Business Days following such expiration, submit a bid for
the Equipment, which bid may be accepted or rejected by the applicable GE
Capital Company in its sole discretion. In the event that such bid is accepted,
upon receipt of the full amount of the bid price, the applicable GE Capital
Company shall thereupon execute a bill of sale (or such other form of
documentation which is used to show a transfer of title in the respective
location of sale) and appropriate title documentation to transfer ownership of
the applicable Equipment to the applicable NMHG Company on an AS IS BASIS. In
the event that the NMHG Group chooses not to exercise the above-described
purchase option or the bid is not accepted, the respective GE Capital Company
may arrange for sale of such Equipment at a commercially reasonable public or
private sale. The NMHG Group shall, unless otherwise directed by said GE Capital
Company, store the Equipment at no cost to said GE Capital Company until such
sale is consummated. The NMHG Group may bid at such sale, and may continue to
solicit offers for such Equipment prior to such sale.
Article VI
Nature of Agreement;
Representations, Covenants and Warranties;
Indemnities, Termination
------------------------
6.1 SCOPE OF AUTHORITY.
(a) Except as specifically set forth herein, each of the NMHG Group
agrees and understands that neither it nor any of its subsidiaries, affiliates
or dealers shall have any power or authority to bind any of the GE Capital
Companies in any way hereunder, including but not limited to: (i) committing any
GE Capital Company, directly or indirectly, to purchase or enter into any
Accounts; (ii) to sell, transfer, encumber or otherwise dispose of the Equipment
covered by any Account; (iii) to repossess or make substitutions for any
Equipment that is the subject of an Account; or (iv) to take any action contrary
to those actions expressly authorized hereunder. None of the NMHG Group and
their respective subsidiaries and affiliates shall have any power to make
representations, promises, agreements or commitments for or on behalf of any of
the GE Capital Companies, and each of the NMHG Group agrees it shall take any
and all actions necessary to advise each Customer or Dealer (as the case may be)
accordingly. The NMHG Group will each have primary decision-making
responsibility with respect to the marketing and distribution of their
respective brands of Equipment and for the following: (i) any recourse from the
NMHG group to a GE Capital Company with respect to any Retail Account; (ii)
communication with the Dealers with respect to marketing the financial products
offered pursuant to this Agreement; (iii) coordination and determination of
Dealer training programs with respect to the use of financing as a major sales
tool; (iv) providing the Dealers with finance rates and factors; (v) assisting
the Dealers in closing Retail Accounts, and (vi) generally promoting the
Wholesale and Retail financing products offered pursuant to this Agreement as
the prime source of financing to the Dealers and the Customers.
(b) In addition to the obligations of the GE Capital Companies set
forth herein, each GE Capital Company will each have primary responsibility with
respect to the following: (i) providing Dealer training programs on reasonable
request of the NMHG
13
Companies; (ii) administration of the Accounts, including without limitation,
invoicing, collections, legal and tax expertise, treasury, finance, accounting,
and booking; (iii) preparation of documentation and marketing materials for each
product; (iv) maintenance of the systems that will support all tracking and
accounting for remarketing and funding of all Accounts.
6.2 NATURE OF AGREEMENT. It is expressly understood and agreed that at
no time will this Agreement be deemed to create a partnership, joint venture,
employment contract, or any other relationship other than that of limited agent
as set forth herein. No universal or general power of agency or attorney has
been created hereunder.
6.3 EXCLUSIVITY. Each of the GE Capital Companies will endeavor to not
enter into any other financing program arrangements with NMHG Competitors (the
term "NMHG Competitors" shall be as set forth on Exhibit C attached hereto which
shall be amended from time by mutual agreement of the parties hereto). Each of
the GE Capital Companies shall additionally endeavor not to develop any business
unit whose primary function is to finance fork lift trucks. Each of the NMHG
Group will not solicit, or enter into, any Wholesale or Retail Account (or enter
into any partnership, joint venture or other arrangement with any other party to
provide any of the foregoing) for Equipment, except that any of the NMHG Group
may make equity investments in, or general loans and other extensions of credit
to or for the benefit of, Dealers from time to time which may be secured by
general liens on inventory, receivables, equipment and other assets of the
Dealer. The parties hereto agree that the enforceability of this Section 6.3
shall be subject to the applicable laws and regulations of the countries in
which each GE Capital and NMHG Company conducts business and the rulings of any
extra-territorial agency (including, without limitation, the European Economic
Commission ("EEC")) which may have jurisdiction over this Agreement.
Additionally, the parties agree that no provision of this Agreement which, for
the purposes of any regulation or directive of the EEC or any similar or
equivalent agency in any other jurisdiction (each, a Competition Authority")
renders or would render this Agreement (or any provision which is a part
thereof) liable to registration with any such Competition Authority, shall be
effective until thirty (30) days after the relevant details of the provision are
filed with such Competition Authority and either written consent or a
"no-action" letter or its equivalent has been obtained from such Competition
Authority.
6.4 REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE NMHG GROUP. Each
of the NMHG Group hereby represents, covenants and warrants to GE Capital that
on the date hereof:
(a) each is duly organized, validly existing and in good standing under
the laws of the state or country of its incorporation;
(b) each has full power and authority and legal rights to execute,
deliver and perform this Agreement and the execution, delivery and performance
hereof have been duly authorized by all necessary corporate action;
(c) this Agreement has been duly executed and delivered by each and
constitutes a legal, valid and binding obligation of each;
(d) the execution, delivery and performance of this Agreement does not
require any stockholder approval or any approval or consent of, or filing or
registration with, any governmental body or regulatory authority or agency or
any approval or consent of any trustee or holders of any indebtedness or
obligations of each, or such approval or
14
consent has been obtained and does not contravene any law, regulation, judgment
or decree applicable to each or their respective certificates of incorporation
or by-laws.
Each of the NMHG Group further represents, covenants and warrants to GE
Capital and the GE Capital Companies that on the date hereof and for the term of
this Agreement: (i) each is, and will remain, fully licensed and in good
standing in all states, territories or countries in which they are respectively
doing business under all applicable laws governing such businesses; and (ii) and
the actions contemplated hereby will not violate any confidence or any state,
federal or other applicable law.
6.5 REPRESENTATIONS, WARRANTIES AND COVENANTS OF GE CAPITAL. Each of GE
Capital and the GE Capital Companies hereby represents, warrants and covenants
to the NMHG Group that on the date hereof:
(a) GE Capital is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and each of the GE Capital
Companies is duly organized, validly existing and in good standing under the
laws of the state or country of its incorporation;
(b) each has full power and authority and legal rights to execute,
deliver and perform this Agreement and the execution, delivery and performance
hereof have been duly authorized by all necessary corporate action;
(c) this Agreement has been duly executed and delivered by each of GE
Capital and the GE Capital Companies and constitutes a legal, valid and binding
obligation thereof; and
(d) the execution, delivery and performance of this Agreement does not
require any stockholder approval or any approval or consent of, or filing or
registration with, any governmental body or regulatory authority or agency or
any approval or consent of any trustee or holders of any indebtedness or
obligations of GE Capital or the GE Capital Companies, or such approval or
consent has been obtained, and does not contravene any law, regulation, judgment
or decrees applicable thereto or their respective certificates of incorporation
or by-laws.
6.6 GENERAL INDEMNIFICATIONS.
(a) Each of the NMHG Group hereby agrees to indemnify, save and keep
harmless GE Capital and the GE Capital Companies, their respective agents,
employees, successors and assigns from and against any and all losses, damages,
penalties, injuries, actions and suits, including litigation costs and
attorneys' fees, of whatsoever kind and nature directly or indirectly arising by
reason of their breach or default of any term, condition, representation,
warranty or agreement set forth in this Agreement or by reason of any improper
act or omission to act of any of the NMHG Group in relation to the subject
matter of this Agreement.
(b) GE Capital and each of the GE Capital Companies hereby agrees to
indemnify, save and keep harmless the NMHG Group, their respective agents,
employees, successors and assigns from and against any and all losses, damages,
penalties, injuries, actions and suits, including litigation costs and
attorneys' fees, of whatsoever kind and nature directly or indirectly arising by
reason of their breach or default of any term, condition, representation,
warranty or agreement set forth in this
15
Agreement or by reason of any improper act or omission to act of GE Capital or
any of the GE Capital Companies in relation to the subject matter of this
Agreement.
6.7 INDEMNIFICATION RELATING TO EQUIPMENT. The NMHG Group hereby agrees
to indemnify, save and keep harmless GE Capital and the GE Capital Companies,
their respective agents, employees, successors and assigns from and against any
and all losses, damages, penalties, injuries, claims, actions and suits,
including legal expenses, of whatsoever kind and nature, in contract or tort,
whether caused by the active or passive negligence of GE Capital or the GE
Capital Companies or otherwise, and including, but not limited to, their strict
liability in tort, arising out of the selection, manufacture, purchase,
acceptance or rejection of Equipment, the ownership of Equipment, and the
delivery, lease, possession, maintenance, use, condition, return or operation of
Equipment (including, without limitation, latent and other defects, whether or
not discoverable by GE Capital, the GE Capital Companies, the Dealers or a
Customer and any claim for patent, trademark or copyright infringement). The
NMHG Group shall, at its own expense, defend any and all actions based on, or
arising out of, any of the foregoing.
6.8 TERM AND TERMINATION.
(a) This Agreement shall be effective upon the execution and delivery
hereof, shall remain in full force and effect for five (5) years (the "Base
Term") unless sooner terminated as hereinafter provided, and will automatically
renew for additional periods of one year (each a "Renewal Term") unless either
NMHG or GE Capital, at any time not less than 180 days prior to the end of the
Base Term or any Renewal Term, notifies the other that the notifying party will
not renew this Agreement, in which event this Agreement will expire at the end
of such Base Term or Renewal Term. Anything herein to the contrary
notwithstanding, either NMHG or GE Capital shall have the right to terminate
this Agreement without cause during any Renewal Term upon at least 180 days
prior written notice to the other party.
(b) Notwithstanding anything to the contrary contained in paragraph (a)
hereof, this Agreement may be terminated (in whole or only as it relates to one
or more of the NMHG Companies or the GE Capital Companies (as the case may
be))during the Base Term or any Renewal Term for "cause", upon 120 days prior
written notice by either party to the other. "cause" shall be defined as
follows:
(i) dissolution or liquidation of NMHG, any of the
NMHG Companies, GE Capital or any of the GE Capital
Companies;
(ii) insolvency of NMHG, any of the NMHG Companies,
GE Capital or any of the GE Capital Companies or the
voluntary institution by NMHG, any of the NMHG Companies,
GE Capital or any of the GE Capital Companies of any
proceeding under any statute of any governmental authority
for the relief of debtors, seeking relief from or
readjustment of its indebtedness, either through
reorganization, composition, extension or otherwise, or
the involuntary institution against NMHG, any of the NMHG
Companies, GE Capital or any of the GE Capital Companies
of any such proceeding which is not vacated
16
within sixty days from the institution thereof, or the
appointment of a receiver, custodian or other officer
having similar powers for NMHG, any of the NMHG Companies,
GE Capital or any of the GE Capital Companies who is not
removed within sixty days after such appointment;
(iii) any breach or violation by NMHG, any of the
NMHG Companies, GE Capital or any of the GE Capital
Companies of any of their respective obligations contained
in this Agreement (including without limitation, the
exclusivity provisions set forth above), or in any other
agreement between such parties, which breach or violation
is not corrected within thirty (30) days after written
notice thereof;
(iv) if NMHG management determines, in its sole
discretion, that any GE Capital Company(ies) is offering
products and rates which are not competitive in their
respective regional markets, then this Agreement may be
terminated for "cause" solely with respect to such GE
Capital Company(ies); or
(v) a termination, for any reason whatsoever, of the
Restated and Amended Joint Venture and Shareholders
Agreement between General Electric Capital Corporation and
NACCO Materials Handling Group, Inc. dated April 15, 1998
(the "Joint Venture Agreement").
(c) It is hereby understood by NMHG, the NMHG Companies, GE Capital and
the GE Capital Companies that after any termination, the terms and conditions of
this Agreement shall continue in full force and effect and the parties shall
continue to have the rights and duties set forth in this Agreement with respect
to all Accounts outstanding or committed to by GE Capital or the GE Capital
Companies on or before the date of any such termination.
Article VII
Tradename Agreement
-------------------
7.1 Each of the GE Capital Companies hereby acknowledges that any and
all rights in the words "NMHG, NACCO Materials Handling Group, Inc., YALE or
HYSTER" are proprietary to NMHG, and hereby agree not to: (i) take any action,
directly or indirectly, to defeat any proprietary rights of NMHG in such words,
(ii) claim any proprietary rights in such words or the goodwill attached thereto
except as provided in this Agreement; or (iii) use any such words except in
conducting the ongoing business with respect to Retail and Wholesale Accounts as
contemplated in this Agreement.
7.2 Each of the GE Capital Companies hereby acknowledges that NMHG, its
subsidiaries and any authorized dealers of NMHG or NMHG's subsidiaries have the
right to use, or may be granted permission by NMHG to use, the words "NACCO
Materials Handling Group, Inc.", "NMHG", "YALE", "YALE Industrial Trucks", "Yale
Materials Handling", "HYSTER", "HYSTER Industrial Trucks" and "HYSTER Materials
Handling" in a trade name or as part of a corporate name for any business
relating to industrial trucks owned or controlled by NMHG, its subsidiaries or
such dealers; and shall execute any consents which NMHG may consider necessary
relating to the
17
exercise of those rights. Each of the GE Capital Companies also hereby: (i)
admits that NMHG has the right to register "NACCO Materials Handling Group,
Inc.", "NMHG", "YALE", "YALE Industrial Trucks", "Yale Materials Handling",
"HYSTER", "HYSTER Industrial Trucks" and "HYSTER Materials Handling" as service
trademarks; (ii) agrees not to take any action, directly or indirectly, to
defeat any trademark application which NMHG has filed or may file therefor; and
(iii) agrees to execute all documentation prepared by NMHG which may be required
to prosecute such trademark application.
7.3 For the duration of this Agreement, NMHG hereby consents to the use
of the words "NACCO Materials Handling Group, Inc.", "NMHG", "YALE" and "HYSTER"
by any of the GE Capital Companies solely with respect to conducting the
business as contemplated in this Agreement. NMHG hereby agrees to defend,
indemnify and hold harmless each of the GE Capital Companies against all claims,
demands, suits or other proceedings (and all related costs and losses suffered
by any such GE Capital Company including reasonable attorney's fees), brought
against any such GE Capital Company based upon an allegation that the use of any
such words in conducting such business constitutes an infringement of any
trademark or other proprietary right. The provisions of this paragraph shall
survive any termination of this Agreement.
Article VIII
General Provisions
------------------
8.1 TITLE TO EQUIPMENT. With regard to all Accounts, title to, and
ownership of, any related Equipment by GE Capital or any of the GE Capital
Companies shall not be modified by this Agreement. The NMHG Group acknowledges
that it has no right, title or interest in or to any Equipment that is the
subject of any Account or the proceeds of any sale thereof, except as expressly
provided herein. Each member of the NMHG Group agrees, upon any request by GE
Capital or the GE Capital Companies, to execute any instrument necessary or
expedient for filing or recording the interest of GE Capital or the GE Capital
Companies in any such Equipment.
8.2 WAIVER OF LIENS. To the extent that any of the NMHG Group may have
a statutory, common law or other right or interest in, or lien upon, any
Equipment for storage, labor, maintenance, repair or otherwise, each member of
the NMHG Group hereby releases and waives such right, interest or lien and
agrees to look only to its rights as a general creditor of GE Capital or the GE
Capital Companies for compensation for performing the services provided under
this Agreement, and not to the Equipment.
8.3 SURVIVAL OF INDEMNITIES. The indemnities contained herein shall
continue in full force and effect notwithstanding the termination of this
Agreement whether by expiration of time, operation of law or otherwise.
8.4 ADVERTISING. Without the prior written consent of the other parties
hereto, neither NMHG, the NMHG Companies, GE Capital or the GE Capital Companies
shall advertise in any manner the financial services to be offered pursuant to
this Agreement. (whether by written brochure, newspaper advertisement, radio
commercial, television commercial or otherwise), even if such advertisement is
intended solely for the Dealers and the Customers.
8.5 SUCCESSORS AND ASSIGNS. No party hereto may assign or delegate any
of its respective rights or obligations hereunder without the prior written
consent of the other party hereto; provided however, that GE Capital may assign
this Agreement to any of its subsidiaries or affiliates without the consent of
any of the NMHG Group. All of
18
the terms and provisions of this Agreement shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of the parties hereto.
8.6 ENFORCEMENT. Time is of the essence of this Agreement. If any sum
is not paid when due hereunder, then interest shall accrue thereon, from such
due date until paid in full (both before and after any judgment) at a per annum
rate equal to the London Interbank Offered Rate for one month dollar deposits
(as published in the "Money Rates" section of The Wall Street Journal, U.S.
Eastern Edition, on the respective due date) plus five percent (5%). If at any
time pursuant to this Agreement, or any other agreement between GE Capital, the
GE Capital Companies and the NMHG Group, each party to this Agreement owes the
other party any sum, all such sums may be set-off against one another so that
only the party owing the larger sum is required to make payment to the other.
Such payment need only be made in the amount equal to the difference between
sums which are due to one another.
8.7 NO MODIFICATION; SEVERABILITY. This Agreement exclusively and
completely states the rights of the parties hereto with respect to the subject
matter hereof and supersedes all other agreements, written or oral, with respect
thereto. None of the terms of, or obligations under, this Agreement may be
changed, waived, modified or varied in any manner whatsoever, including, but not
limited to, any action or inaction of either party, unless in a writing duly
signed and executed by the parties. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be, as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.8 HEADINGS. The headings of Sections and Articles contained in this
Agreement are provided for convenience only. They form no part of this Agreement
and shall not affect its construction or interpretation. All references to
Articles and Sections refer to the corresponding Articles and Sections of this
Agreement unless otherwise specified.
8.9 NOTICES. Any notices to the parties hereto under this Agreement
shall be written, signed by a duly authorized representative, and shall be
deemed to have been given when mailed to the intended recipient by certified
mail or registered mail, return receipt requested, postage prepaid at the
following addresses, unless the mailing party has received prior written notice
that the address has changed;
IF TO GE CAPITAL OR THE GE CAPITAL COMPANIES:
General Electric Capital Corporation
44 Old Ridgebury Road
Danbury, Connecticut 06810
Attention: Edward Simoneau
with a copy to the following for any correspondence related to
matters in Europe:
GE Capital Services (EEF) Limited
Trinity Square
23/59 Staines Road
Hounslow, Middlesex TW3 3HF
United Kingdom
Attention: Legal Director
19
IF TO NMHG OR THE NMHG COMPANIES:
NACCO Materials Handling Group, Inc.
650 NE Holladay Street
Suite 1600
Portland, Oregon 97232
Attn: General Counsel
8.10 FUTURE COOPERATION. All of the parties hereto agree to sign such
further documents and take such further action as may reasonably be necessary to
effectuate this Agreement.
8.11 TIME; NON-WAIVER OF REMEDIES. All of the parties hereto mutually
agree that in performing any act under this Agreement, that time shall be of the
essence and that the failure of either party to exercise any right or remedy
shall not be deemed a waiver of any of the obligations of the other party or any
right or remedy of either party.
8.12 GOVERNING LAW. The laws of the State of New York shall govern this
Agreement (without regard to its choice of law rules).
8.13 ARBITRATION. Any and all disputes, controversies or claims arising
out of, or relating to, this Agreement 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 GE Capital 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.
8.14 CONFIDENTIALITY. All information with respect to the NMHG Group,
GE Capital or the GE Capital Companies, or with respect to the business,
operations, products and customers thereof, shall be kept confidential and shall
not be disclosed to third parties, except for (i) any disclosures required by
law or required to be made to any governmental agencies, or (ii) any disclosures
to the parties respective independent certified public accounting firm or to
other persons or entities that may need to know for the purpose of the business
or operations of the NMHG Group, GE Capital or the GE Capital Companies, or
(iii) any disclosures of information that was in the public domain at the time
of receipt or subsequently comes into the public domain (other than as a result
of an unauthorized disclosure), or (iv) disclosures of the type that are
customary in the ordinary course of business (e.g., the terms of financing
available from the GE Capital Companies).
8.15 FIVE-YEAR REVIEW. GE Capital and NMHG each agree that, within five
years of the execution of this Agreement, they will mutually review the results
of the transactions referred and closed in each country or region (as the case
may be) to determine if it would be economically practical to establish a joint
venture structure
20
through the use of management accounting similar in form to the U.S. joint
venture established by the Joint Venture Agreement in some or all of such
countries or regions.
8.16 COMMITMENT TO TIMETABLE. Each of the NMHG Group and the GE Capital
Companies agrees to use their best efforts to cooperate with GE Capital and NMHG
to implement the Timetable set forth in Section 32 of the JV Agreement (a copy
of which is attached as Exhibit D hereto) as such Timetable relates to the
respective country or region for which the NMHG Group or the GE Capital Company
is responsible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
GENERAL ELECTRIC CAPITAL NACCO MATERIALS HANDLING
CORPORATION GROUP, INC.
By: /s/ Christopher H. Richmond By: /s/ Reginald R. Eklund
----------------------------- -----------------------------
Title: Vice President and Title: President
General Manager --------------------------
--------------------------
21