AMENDMENT NO. 2
DATED AS OF JULY 1, 2008
TO
RECOURSE AND INDEMNITY AGREEMENT
DATED AS OF OCTOBER 21, 1998
BY AND BETWEEN
GENERAL ELECTRIC CAPITAL CORPORATION
NMHG FINANCIAL SERVICES, INC.
AND
NACCO MATERIALS HANDLING GROUP, INC.
US ULTIMATE NET LOSS
PROGRAM
WHEREAS,
General Electric Capital Corporation (“ GECC
”), and NACCO Materials Handling Group, Inc. (“
NMHG ”) each have determined that it is in
their best interest to make certain amendments to the
above-captioned agreement (as previously amended, and as may be
further amended, supplemented or modified from time to time, the
“ R&I Agreement ”). All capitalized
terms not specifically defined herein shall have the respective
meanings set forth in the R&I Agreement or (as applicable) in
the Restated and Amended Joint Venture and Shareholders Agreement
dated April 15, 1998 between GECC and NMHG (as amended, the “
JV Agreement ”).
NOW,
THEREFORE , in consideration of the above premises and mutual
covenants contained herein below, the parties hereto agree that as
of the “ Effective Date ” (defined
below), the R&I Agreement is amended as follows:
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1.
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The
following new definitions are inserted at the end of ARTICLE I
CERTAIN DEFINITIONS :
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1.05 “
Base Term ” as that term is employed in the JV Agreement and
R&I Agreement shall be extended as of the Effective Date and
the new Base Term shall expire on December 31,
2013.
1.06 “
Fleet Rental Financing Account ” means and includes any loan or other
extension of credit to a Dealer (as defined in the JV Agreement)
for the acquisition by the Dealer of NMHG Equipment (and any
related trade-ins) only if and to the extent such NMHG Equipment
(and any related trade-ins) is or becomes part of such
Dealer’s rental fleet, but does not include any loan or other
extension of credit by the Corporation to a Customer (as defined in
the R&I Agreement).
1.07 “ Loss Pool Credit" means
for the Initial Loss Pool Account (defined below) seven and one
half percent (7.5%) of the
Net Book Value (defined below) of each outstanding UNL Eligible US
Fleet Rental Financing Account. For subsequent annual Loss Pool
Accounts the Loss Pool Credit shall be seven and one-half percent
(7.5%) of the purchase price funded by the Corporation of any US
Fleet Rental Financing transaction. The beginning Loss Pool Balance
in each Loss Pool Account will be one million five
hundred
thousand
($1,500,000). Unless otherwise specifically agreed by the parties,
no additional contribution will be made to a Loss Pool Account
until the aggregate purchase price funded by the Corporation under
the Program for the applicable year (the “ Annual
Aggregate Purchase Price ”) exceeds twenty million
dollars ($20,000,000). When the Annual Aggregate Purchase Price
exceeds twenty million dollars ($20,000,000), the Corporation will,
simultaneously with the payment of the purchase price for any new
transaction, record in the applicable Loss Pool Account an amount
equal to the applicable Loss Pool Credit.
1.08 “ Net Book Value ”
means the value of the UNL Eligible US Fleet Rental Financing
Account (defined below), as reflected on the Corporation’s
books and records, calculated on the basis of: (i) all accrued
and unpaid sums due under the UNL Eligible US Fleet Rental
Financing Account; plus (ii) all future payments due during
the remainder of the term of the UNL Eligible US Fleet Rental
Financing Account, with each such payment discounted to its present
value from the due date thereof to the date of payment of the Net
Book Value at the interest rate applicable to the UNL Eligible US
Fleet Rental Financing Account.
1.09 “ Net Remarketing Proceeds
” means the proceeds actually received by NMHG upon its
remarketing of NMHG Equipment, minus any applicable sales taxes and
Actual Out-Of-Pocket Costs (as defined in Section 2.01(b)
(2) of the R&I Agreement). If NMHG does not remarket the
NMHG Equipment during the Remarketing Period, Net Remarketing
Proceeds will be deemed to be equal to the Net Book Value paid to
the Corporation and the adjustment to the applicable Loss Pool
Account will be zero.
1.10 “ Remarketing Period ”
means the period beginning on the date of receipt of the Net Book
Value under section 2.01 below and ending one hundred eighty
(180) days thereafter.
1.11 “
Sale Out of Trust ” means any conversion, disposal, sale or
encumbrance (other than a permitted rental or sublease to a
Customer) by a Dealer of any NMHG Equipment that is the subject of
a US Fleet Rental Financing Account in violation of the terms of
the applicable US Fleet Rental Financing Account without the prior
written consent of the Corporation.
1.12 “
UNL Eligible US Fleet Rental Financing Account
” means and
includes all US Fleet Rental Financing Accounts (defined below)
other than any US Fleet Rental Financing Accounts constituting a
“UNL Ineligible US Fleet Rental Financing Account”
(defined below) approved by the Corporation in its sole discretion
to qualify as UNL Eligible US Fleet Rental Finan
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