Exhibit 10.1
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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (hereinafter referred to as this
"Agreement"), is made and entered into this 27th day of June, 2008, by and
between Wachovia Corporation, a National Banking Association organized and
existing under the laws of the United States of America with a place of business
at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 (hereinafter referred
to as the "Lender"), NACCO Materials Handling Group, Inc., a Delaware
corporation, with a place of business at 0000 Xxxxxxxx Xxxxx, Xxxxxx Xx. 00000,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (hereinafter referred to as the
"Creditor"), and Transbotics Corporation, a North Carolina corporation with a
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000 ("Debtor") represent, covenant and agree as follows:
1. RECITALS
1.1 Lender and Creditor each have extended or anticipate extending credit to
Debtor or otherwise have a security interest in certain property owned or under
the custody and control of Debtor. Specifically, Creditor has made progress
payments to Debtor for equipment being manufactured by Debtor to be delivered to
Creditor.
1.2 Creditor, as a condition to its continuing business activities with
Debtor, has requested that Lender vary the priority of Lender's security
interest in certain property of Debtor, as described below, and Lender has
agreed to vary the priority of its security interest, as set forth below.
2. AGREEMENT VARYING PRIORITY
2.1 As between Lender and Creditor, the security interest of Creditor shall
have first priority and be superior to any interest of Lender in the property
described in Appendix 1 ("Deliverables") to this Agreement. As to all other
property of Debtor, Creditor shall continue to have a first priority security
interest. Upon the final sale of the Deliverables to Creditor, Lender shall have
a first priority security interest in the proceeds of such sale.
2.2 Creditor agress that it will make all payments to Debtor upon the
presentation of a valid invoice under the payment terms of the agreement between
Creditor and Debtor. Should Creditor at any time fail to make an undisputed
payment to Debtor, such dispute which must be reasonable and material, and fail
to cure the same within ten days of receipt of written notice of such default,
then this Agreement shall terminate and Lender shall have a first priority
security interest in the Deliverables.
2.3 This Agreement shall continue until Debtor has delivered the Deliverables
to Creditor or October 31, 2008, whichever first occurs. This Agreement can be
extended by the mutual written agreement of the parties, such consent not to be
unreasonably withheld, if for some reason delivery of the Deliverables is
delayed beyond October 31, 2008.
2.4 Creditor and Debtor agree that 10% of any payment due to be paid by
Creditor to Debtor shall be paid directly to Lender. Such payment shall be made
at the same time as payment is made by Creditor to Debtor.The payment to Lender
shall be made by wire using the following instructions, unless and until Lender
provides different wiring instructions: Wachovia Bank ABA Number 000000000 Acct
Number: GL 01459160003288, special assets Mgmt- Charlotte, attn: Fave Xxxxxx -
000-000-0000 or Xxxxx Xxxxxx 000-000-0000.
3. GENERAL
3.1 This Agreement is solely for the benefit of Lender and Creditor, and no
other persons or parties (including the Debtor) are intended to be benefited in
any way by this Agreement.
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3.2 Nothing contained in this Agreement is intended to affect or limit in any
way the security interest that each of the parties hereto has in any or all of
the assets of Debtor, whether tangible or intangible, insofar as the rights of
Debtor and third parties are involved.
3.3 The foregoing relative priorities of the security interests of Lender and
Creditor with respect to the Deliverables shall apply regardless of the order or
time of perfection, whether they are protected by filing, possession or
otherwise.
3.4 This Agreement constitutes the entire agreement between Lender and
Creditor with respect to the subject matter hereof and may not be amended except
with the written consent of Lender, Creditor and Debtor.
3.5 Immediately upon the delivery of the Deliverables to Creditor, Debtor
and/or Creditor shall send a notice of delivery to Lender. Notice of delivery
shall be given by a recognized overnight courier service or by mailing a
certified letter, return receipt requested, addressed to Lender at its address
set forth below or at such other address as identified by Lender.
Notwithstanding delivery of the Deliverables, this Agreement shall continue to
govern the respective rights and priorities of the parties as to property and
property interests of Debtor with respect to the Deliverables which existed
prior to their delivery to Creditor. Notices shall be addressed as follows:
If to Creditor: NACCO Materials Handling Group, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxxx Xx. 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxx
With a copy to: Xxxxxxx Xxxxxxx
If to Lender: Xxxxxxxxx X. Xxxxxx (Xxxxx)
Vice President
Wachovia Bank
X.X. Xxx 000
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
3.6 The subordinations, agreements and priorities set forth hereinabove shall
remain in full force and effect regardless of whether any party hereto in the
future seeks to rescind, amend, terminate or reform, by litigation or otherwise,
its respective agreements with Debtor, other than by a written agreement between
the parties.
3.7 This Agreement shall be construed and governed by the laws of the State
of North Carolina, regardless of the location of any collateral described
herein, and irrespective of North Carolina law regarding conflicts of law.
3.8 This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of each of the parties hereto.
3.9 LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES
HERETO AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY
CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY
WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR
DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED
HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY AGAINST LENDER FOR, (1)
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES.
CREDITOR AND DEBTOR HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE AGAINST LENDER
IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME
IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE.
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3.10 ARBITRATION. Upon demand of any party hereto, whether made before or
after institution of any judicial proceeding, any claim or controversy arising
out of or relating to the this Agreement between parties hereto (a "Dispute")
shall be resolved by binding arbitration conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, a dispute
as to whether a matter is subject to arbitration, or claims arising from
documents executed in the future, but shall specifically exclude claims brought
as or converted to class actions. A judgment upon the award may be entered in
any court having jurisdiction. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
Special Rules. All arbitration hearings shall be conducted in Charlotte, North
Carolina. A hearing shall begin within 90 days of demand for arbitration and all
hearings shall conclude within 120 days of demand for arbitration. These time
limitations may not be extended unless a party shows cause for extension and
then for no more than a total of 60 days. The expedited procedures set forth in
Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000.00. Arbitrators shall be licensed attorneys selected from the
Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not
waive applicable Federal or state substantive law except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sale; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute. Waiver of Jury Trial. THE
PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A
DISPUTE AS TO WHICH BINDING ARBITRATION HAS BEEN DEMANDED.
IN WITNESS WHEREOF, Lender, Creditor and Debtor have duly signed and sealed this
Agreement as of the day and year first above written.
NACCO Materials Handling Group, Inc.
By: __/s/ Xxxxxxx C Ulmer__________________________(SEAL)
Name: ____Raymond C Ulmer_______, Title: __Vice President
Finance, Americas________________
Transbotics, Inc.
By: __/s/ Xxxxxx Imbleau___________________________(SEAL)
Name: ___Claude Imbleau___________, Title: ____CFO_______
Wachovia Bank, National Association
By: __/s/ Xxxxxx X Xxxxx, SVP______________________(SEAL)
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