Exhibit 10.11
LETTER AGREEMENT
November 22, 2000
NACCO Materials Handling Group, Inc.
000 X.X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
RE: FINANCING FOR AUSTRALIAN NMHG SUBSIDIARIES
Under the auspices of that certain International Operating Agreement dated
April 19, 1998, as amended ("Operating Agreement") between General Electric
Capital Corporation ("GE Capital") and xxx, XX Capital Australia ("GECA") and GE
Capital Finance Pty Limited ("GECF") (GECA and GECF shall hereinafter be
collectively referred to as "GE Capital Australia"), both wholly-owned
subsidiaries of GE Capital, have each consented, individually and collectively,
to enter into several financing arrangements with National Fleet Network Pty
Limited ("NMHG Fleet") and NMHG Distribution Pty Ltd. ("NMHG Distribution")
(NMHG Fleet and NMHG Distribution shall collectively be referred to as the
"NACCO Subsidiaries"). NMHG Fleet and NMHG Distribution are Australian
corporations which are affiliated to you and both serve to distribute your
products throughout Australia. The Financing Transactions described below will
facilitate the sale and distribution (directly and indirectly) of your products
throughout Australia and you hereby agree that the benefits to you shall
constitute adequate consideration for the guaranty contained herein.
Additionally, the NACCO Subsidiaries have entered into a Letter of Offer with
you dated on or about the date hereof wherein they have paid you a Guarantee Fee
as further consideration for the guaranty contained herein.
In consideration of the foregoing, by their respective signatures below, GE
Capital and NACCO Materials Handling Group, Inc. ("NMHG") hereby agree that the
Operating Agreement shall be amended to add the following as Section 3.7(1).
3.7(1) AUSTRIALIAN FINANCING TRANSACTIONS
(a) The term "Financial Transaction Documentation" as hereinafter used
shall collectively refer to all of the following:
1. Master Operating Lease Agreement (No. 1) dated on or about the
date hereof between GECA and NMHG Fleet as it may be amended from time to
time.
2. Master Operating Lease Agreement (No. 2) dated on or about the
date hereof between GECA and NMHG Fleet as it may be amended from time to
time.
3. A$ Facility Agreement dated on or about the date hereof between
GECA, GECF, NMHG Fleet and NMHG Distribution as it may be amended from
time to time.
4. Two Sale and Purchase Agreements dated on or about the date hereof
between GECA and NMHG Fleet as it may be amended from time to time.
5. Any and all documents or agreements related to the agreements set
forth in 1, 2, 3 and 4 above.
(b) NMHG does hereby guarantee to GE Capital Australia, individually and
collectively, and to their respective successors and assigns, the due regular
and punctual payment of any sum or sums of money which the NACCO Subsidiaries
may owe to GE Capital Australia now or at any time hereafter arising out of the
Financial Transaction Documentation, whether it represents principal, interest,
rent, late charges, indemnities, an original
balance, an accelerated balance, liquidated damages, a balance reduced by
partial payment, a deficiency after sale or other disposition of any leased
equipment, collateral or security, or any other type of sum of any kind
whatsoever that the NACCO Subsidiaries may owe to GE Capital Australia now or at
any time hereafter, and does hereby further guarantee to GE Capital Australia,
individually and collectively, and to their successors and assigns, the due,
regular and punctual performance of any other duty or obligation of any kind or
character whatsoever that the NACCO Subsidiaries may owe to GE Capital Australia
now or at any time hereafter (all such payment and performance obligations
being collectively referred to as "Obligations"). NMHG does hereby further
guarantee to pay upon demand all losses, costs, attorneys' fees and expenses
which may be suffered by GE Capital Australia by reason of any NACCO
Subsidiary's default or default of NMHG.
(c) The Guaranty set forth in Subparagraph (b) above is a guaranty of
prompt payment and performance (and not merely a guaranty of collection).
Nothing herein shall require GE Capital Australia to first seek or exhaust any
remedy against the NACCO Subsidiaries, its successor and assigns, or any other
person obligated with respect to the Obligations, or to first foreclose, exhaust
or otherwise proceed against any leased equipment, collateral or security which
may be given in connection with the Obligations. It is agreed that GE Capital
Australia may, upon any breach or default of the NACCO Subsidiaries, or at any
time thereafter, make demand upon NMHG and receive payment and performance of
the Obligations, with or without notice or demand for payment or performance by
the NACCO Subsidiaries, or their respective successors or assigns, or any other
person. Suit may be brought and maintained against NMHG, at GE Capital
Australia's election, without joinder of any of the NACCO Subsidiaries or any
other person as parties thereto.
(d) NMHG agrees that its obligations under the above-described Guaranty
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): (a) the genuineness, validity, regularity and
enforceability of the Financial Transaction Documentation or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification of
the Financial Transaction Documentation; (c) the absence of, or delay in, any
action to enforce the Financial Transaction Documentation or this Letter
Agreement; (d) GE Capital Australia's failure or delay in obtaining any other
guaranty of the Obligations; (e) the release of, extension of time for payment
or performance by, or any other indulgence granted to the NACCO Subsidiaries or
any other person with respect to the Obligations by operation of law or
otherwise; (f) 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 leased equipment, collateral or security given in
connection with the Obligations, or any other impairment (whether intentional or
negligent, by operation of law or otherwise) of the rights of NMHG; (g) the
NACCO Subsidiaries' voluntary or involuntary bankruptcy, assignment for the
benefit of creditors, reorganization, or similar proceedings affecting the NACCO
Subsidiaries or any of their respective assets; or (h) any other action or
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
(e) NMHG agrees that the above-described Guaranty shall remain in full
force and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by GE Capital Australia, all
as though such payment or performance had not been made. If, by reason of any
bankruptcy, insolvency or similar laws effecting the rights of creditors, GE
Capital Australia shall be prohibited from exercising any of its rights or
remedies against the NACCO Subsidiaries or any other person or against any
property, then, as between GE Capital Australia and NMHG, such prohibition
shall be of no force and effect, and GE Capital Australia shall have the right
to make demand upon, and receive payment from, NMHG of all amounts and other
sums that would be due to GE Capital Australia upon a default with respect to
the Obligations.
(f) Notice of acceptance of the above-described Guaranty and of any
default by the NACCO Subsidiaries or any other person is hereby waived.
Presentment, protest demand, and notice of protest, demand and dishonor of any
of the Obligations, and the exercise of possessory, collection or other
remedies for the Obligations, are hereby waived. NMHG warrants that it has
adequate means to obtain from the NACCO Subsidiaries on a continuing basis
financial data and other information regarding the NACCO Subsidiaries and is not
relying upon GE Capital Australia to provide any such data or other information.
Without limiting the foregoing, notice of adverse change in either of
the NACCO Subsidiaries' 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
NACCO Subsidiaries, their respective successors or assigns, and GE Capital
Australia shall be binding upon and shall not affect the liability of NMHG.
(g) All payments due under the above-described Guaranty shall be made in
Australian Dollars shall be calculated and made without any deduction, set-off,
counterclaim or withholding whatsoever for, or on account of, any taxes, duties
and fees which may be due as a result of such payment. All such taxes shall be
borne by NMHG or, if under the provisions of applicable law this stipulation
cannot be applied, NMHG shall increase the amount of any such payments due
hereunder so that the net amount received by GE Capital Australia after such
deduction or withholding (and after the payment of any additional taxes due to
GE Capital Australia as a consequence of the payment of any such additional
amount) shall be equal to the full amount which GE Capital Australia would have
been paid had payment not been made subject to such taxes.
(h) If, any payment due hereunder is paid to, or recovered by, GE Capital
Australia in a currency (the "other currency") other than Australian Dollars for
any reason whatsoever (including, without limitation, as a result of a judgment
against NMHG or the liquidation of NMHG's assets), then, to the extent that such
payment (or, in the case of a liquidation, the value as of the latest date for
the determination of liabilities permitted by the applicable law) falls short of
the applicable amount which is required to be paid hereunder based upon the rate
of exchange for the other currency, NMHG shall, as a separate and independent
obligation, fully indemnify GE Capital Australia against the amount of the
shortfall. For the purposes of this paragraph, the term "rate of exchange" means
the rate at which GE Capital Australia is able, at 11:00 a.m. (Sydney time), on
the relevant date to purchase Australian Dollars in Sydney, Australia with the
other currency.
The amendment set forth above shall become fully effective as of the date
set forth above. Additionally, by its signature below NMHG hereby acknowledges
receipt of an accurate copy of the form of each of the Financial Transaction
Documentation and all annexes, exhibits and schedules thereto which GE Capital
Australia intends to execute on or before November 25, 2000 with the parties
described above and represents that it understands and agrees to all of the
terms and conditions contained therein.
Except as modified hereby, the terms and conditions of the Operating
Agreement shall remain in full force and effect.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
Accepted and Agreed to:
NACCO MATERIALS HANDLING GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Xxxxxxxx X. Xxxxx
Vice President
