Exhibit 10.9
Amendment No. 2 to
the International Operating Agreement
Between
General Electric Capital Corporation and Certain of its
Subsidiaries and Affiliates and
NACCO Materials Handling Group, Inc. and
Certain of its Subsidiaries and Affiliates
Dated April 15, 1998
as amended on ________, 1998
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 amended
(the "Agreement").
NOW, THEREFORE, in consideration of the above premises and mutual covenants
contained hereinbelow, the parties hereto hereby agree that as of DECEMBER 31,
1999, the Agreement is hereby amended as follows: -----------
1. Section 1.17 shall be deleted in its entirety and the following
substituted in its stead:
1.17 "WHOLESALE ACCOUNT" shall mean and include any loan or other extension of
credit, now or hereafter, by a GE Capital Company to either: (i) any non-U.S.
Dealer (whether or not owned by any of the NMHG Group or any of their respective
affiliates or subsidiaries), or (ii) any of the NMHG Group or any of their
respective affiliates or subsidiaries secured by Equipment (whether or not such
Equipment is purchased directly from the proceeds of any such loan or other
extension of credit or is kept as inventory for sale or as part of the
respective party's rental fleet).
2. Section 3.7(a) shall be deleted in its entirety and the following
substituted in its stead:
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 respective
party thereto 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 the respective party 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)
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
Corporation.
Paragraphs (a) and (b) of Section 2.01 shall remain unmodified and in full
force and effect.
This Amendment shall become fully effective as of its execution by both
GECC and NMHG. Except as modified hereby, the terms and conditions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
day and year first above written.
GENERAL ELECTRIC CAPITAL NACCO MATERIALS HANDLING
CORPORATION GROUP, INC.
By:/s/Illegible By: /s/Xxxxxxx X. Xxxxxxx
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Title: MGR. - Dealer Finance Title: Treasurer
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