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EXHIBIT 10.22
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT is entered into this 2 day of March, 1992, by
and between XXXXX MATERIAL HANDLING COMPANY, formerly known as Xxxxx Material
Systems Technology Company, a business unit of Xxxxx Equipment Company, a
Delaware corporation with offices at Lexington, Kentucky ("Buyer"), and
HYDROLECTRIC LIFT TRUCKS, INC., a subsidiary of The Xxxxx X. Xxxxxx Co.
(formerly a division of Deerfield Manufacturing Company), an Ohio corporation
with principal offices in Wilmington, Ohio ("Seller"), and is a part of that
certain Agreement between Buyer and Seller effective as of January 1, 1988
covering the purchase and sale of products ("Agreement"), which Agreement is
hereby incorporated by reference as if set forth in full.
For and in consideration of the mutual promises hereinafter set forth,
the parties do hereby mutually agree as follows:
1. Section 1.1, line 1, add the word "pantographs," after the word
"uprights,".
2. The term (Section 3) of the Agreement shall be extended until and
including December 31, 1997, and will automatically be extended
for an additional three (3) year term through and including
December 31, 2000, unless either party elects to terminate the
Agreement at the end of the initial term by written notice to the
other party, which notice must be given on or before July 1, 1997.
3. Section 4.1 is rewritten as follows:
"The Unit Price for each Product, effective for all Products
shipped on or after January 1, 1992, will be the price stated
in Exhibit 1, attached hereto and made a part hereof."
4. The following new language is added to the beginning of Section
4.6:
"The Annual Price Adjustment to the Unit Price for each
Product will be determined by good faith negotiations and
agreement between the parties during the period of 1 September
and 31 October of each year during the term of this Agreement,
to become effective 1 January of the following year. If the
parties are unable to agree on the Annual Price Adjustment
during such period, the parties will continue to negotiate in
good faith to reach an agreement by 28 February of the
following year. Such agreed upon Annual Price Adjustment shall
be retroactive to 1 January.
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In the event the parties are unable to agree on the Annual
Price Adjustment to the Unit Price for each Product by 28
February, . . . (the)"
5. The following new language is added to the end of Section 5:
", notwithstanding any different or additional payment terms
contained in any other document or purchase order."
6. Section 7.3, line 2, the word "five" is changed to read "three and
one-half (3 1/2)". In line 3, the word "five" is changed to read
"three and one-half (3 1/2)". In line 4, the word "6th" is changed
to read "4th".
7. Section 7.5, line 1, the word "five" is changed to read "three and
one-half (3 1/2)."
8. Section 7.6, delete the last sentence on page 11, and replace it
with the following:
"Upon termination of this Agreement by the Buyer for reasons
other than the breach by Seller of its obligations hereunder
pursuant to Section 21.1, the Buyer shall be liable for
payment of Seller's undepreciated cost using the straight line
method over a life of nine and one-half (9 1/2) years of the
capital equipment purchased by Seller to the extent used by
Seller in the production of Products for Buyer (based upon the
ratio of the number of hours such capital equipment is used to
produce Products for Buyer versus the number of hours such
capital equipment is used to produce products for parties
other than Buyer), but in no event shall Buyer's liability
hereunder exceed $50.00 per unit of Product for any
undelivered remainder of the first 42,800 units of upright
with carriage product (less any such payments previously made
to Seller)."
9. The following new Section 7.7 is hereby added to the Agreement:
"While Buyer has no obligation to purchase a minimum number of
Products during the term of this Agreement or during any year
this Agreement is in effect, and Buyer will incur no liability
if it fails to purchase a minimum
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number of Products during the term of this Agreement or during
any year this Agreement is in effect, Buyer will make a good
faith effort to purchase 42,800 units of Products during the
term of this Agreement, with annual purchases consistent with
the purchase of 42,800 units of Products, subject to market
and financial conditions."
10. Section 11.1, line 2, add the following after the word "criteria":
"(SQA-01 dated 1-1-89, revised 2-22-91)".
11. Section 23.7, all Notices given to Buyer shall hereinafter be
given to the attention of the Director of Purchasing; all notices
given to Seller shall hereinafter be given to the attention of the
General Manager.
12. Section 23, add the following new subsection:
"23.8 Assignment. This Agreement shall be binding upon and
shall be deemed automatically assigned to any person, firm or
corporation which hereafter acquires substantially all of the
assets of Buyer or which hereafter succeeds to all or a
substantial part of the business of Buyer."
13. The following new Subsections to Section 14 are added to the
Agreement:
"14.4 Seller shall purchase and install, no later than 1 May
1992, at its sole expense, the following tooling and equipment
to support Buyer's pantograph and M1060 projects:
Pantograph Project Estimated Investment Cost
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Horizontal Machine
Center $380,000
Welders 7,600
Gas Lines 4,000
Two (2) Overhead Cranes 25,000
Electric Equipment 3,000
Testing Equipment 3,000
Assembly Dollies 3,000
Enerpac 8,000
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Sub-Total: $433,600
(Cont.)
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M1060 Project Estimated Investment Cost
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Welders $ 7,600
Forklift 15,000
Enerpac 8,000
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Sub-Total: $ 30,600
Total Pantograph & M1060 Project: $464,200
Interest (Calculated at 8%): $175,905
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TOTAL: $640,105
Buyer's sole responsibility, liability and obligation in
connection with this investment by Seller is to increase the
number of units from which Buyer's liability for payment of
Seller's undepreciated cost of capital equipment will be
determined in the case of a termination of this Agreement by
Buyer for reasons other than the breach by Seller of its
obligation under the Agreement pursuant to Section 21.1.
Provided this new investment is completed and installed by
Seller, the number of units will be increased from 30,000 to
42,800. If for any reason this new investment is not
completed, the number of units will remain 30,000 and Section
7 of this Amendment Agreement shall be automatically modified
accordingly."
"14.5 Buyer shall have the option, with Seller's consent, to
purchase the tooling and equipment in connection with the
pantograph project, as described in Section 14.4 of this
Agreement, for a purchase price determined as follows:
$401,600 for the pantograph project equipment (does
not include cranes, gas lines and electric equipment)
less $62.75 for each pantograph product produced by
Seller using the pantograph project equipment
plus 8% per annum."
14. All references in the Agreement to Xxxxx Material Systems
Technology Company are hereby changed to Xxxxx Material Handling
Company.
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15. Unless defined in this Amendment Agreement, capitalized terms
shall have the same meaning afforded to them in the Agreement.
16. Except as herein specifically amended, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representative to execute this Amendment Agreement as of the date
first set forth above.
BUYER: SELLER:
XXXXX MATERIAL HANDLING COMPANY, HYDROLECTRIC LIFT TRUCKS, INC.
A Business Unit of
XXXXX EQUIPMENT COMPANY
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: President Title: Vice President-General Manager
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Acknowledged and Agreed:
THE XXXXX X. XXXXXX CO.
By: /s/ Xxxxx X. Xxxxxx
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Title: President
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