EXHIBIT 10.45
AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT
This Amendment is by and between Great Dane Trailers, Inc. ("Great Dane") and
Associates Commercial Corporation ("Associates").
RECITALS
A. Great Dane and Great Dane Finance Company ("GDFC") entered into an Amended
and Restated Operating Agreement dated August 31, 1988 (the "Agreement").
B. GDFC's rights under the Agreement have been assigned to Associates. (As
used herein the term company shall refer to Associates as the successor to
GDFC).
C. Great Dane and Associates desire to amend the Agreement pursuant to the
terms and conditions herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Sections 2.15, 2.16 and 2.17(a) of the Agreement are hereby deleted and
replaced with the following language:
Section 2.15. GREAT DANE REPOSSESSION LOSS LIABILITY. Provided that the
AIC Account as defined in Section 2.17 or the AIC Account (the "Canadian
AIC Account") as defined in Section 2.13 of that certain Great
Dane/Associates Wholesale and Retail Financing Agreement dated September
28, 1992 (the "Canadian Operating Agreement") between Associates Commercial
Corporation of Canada Ltd. ("Associates Canada") and Great Dane includes a
like or greater amount, the Company shall debit the AIC Account, or may in
its discretion debit the Canadian AIC Account, an amount equal to:
(i) one hundred percent (100%) of the Repossession Loss
arising under any Contract purchased by the Company from an Affiliate
Dealer, and
(ii) the difference, if any, between (x) the Repossession
Loss arising under any Contract purchased by the Company from an
Independent Dealer for the sale of five (5) or more items of Property
consisting of new trailers or semi-trailers to the same Great Dane
Customer which had been the subject of a single order to Great Dane by
such Independent Dealer, minus (y) ten percent
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(10.0%) of the Net Unpaid Time Balance for such Property remaining
under such Contract at the time of repossession of such Property, and
(iii) the difference, if any, between (x) the Repossession
Loss arising under any other Contract purchased by the Company from an
Independent Dealer which is not described in Section 2.15(ii) above,
minus (y) fifteen percent (15.0%) of the Net Unpaid Time Balance for
such Property remaining under such Contract at the time of
repossession of such Property.
"Great Dane agrees that the Company may so charge the AIC Account
or Canadian AIC Account those amounts referenced in the preceding
sentence. In the event a Repossession Loss arises which exceeds
the amount, if any, remaining in the AIC Account (after the
return of any amounts by Great Dane pursuant to Section 2.17(c)),
Great Dane shall, subject to Section 2.16, pay the Company in
cash immediately upon demand the following amount:
(i) if an Affiliate Dealer is liable to the Company with
respect to the related Contract, the amount shall equal
fifty percent (50%) of the difference between (x) such
Repossession Loss minus (y) such amount, if any,
remaining under the AIC Account, and
(ii) if an Independent Dealer is liable to the Company with
respect to the related Contract, the amount shall equal
fifty percent (50%) of the difference between (x) such
Repossession Loss minus (y) such amount, if any,
remaining in the AIC Account minus (z) the amount of
the Independent Dealer's liability owed to the Company
relating to the Contract, and
(iii) if an Independent Dealer is not liable to the Company
with respect to the related Contract, the amount shall
equal fifty percent (50%) of the difference between (x)
such Repossession Loss minus (y) such amount, if any,
remaining in the AIC Account minus (z) the amount the
Independent Dealer would have been liable to the
Company relating to the Contract had the Company not
assumed the Independent Dealer's liability."
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2.16 GREAT DANE REPOSSESSION LOSS LIABILITY LIMITS. Notwithstanding
anything to the contrary in Section 2.15, during any single Calendar Year, as
defined herein, Great Dane shall have no further liability for Repossession
Losses if, during such Calendar Year, the sum of (a) the amounts paid by Great
Dane to the Company, pursuant to Section 2.15 from sources other than the AIC
Account or Canadian AIC Account, and (b) the amounts paid by Great Dane to
Associates Canada under Section 2.11 of the Canadian Operating Agreement, is in
excess of the greater of (i) two-tenths of one percent (0.2%) of the aggregate
outstanding Unpaid Time Balance for all outstanding Contracts existing under
this Agreement and the Canadian Operating Agreement on December 31st of the
prior Calendar year up to a maximum of $1,250,000 U.S. dollars, or (ii) $360,000
U.S. dollars. For the purpose of determining the application of the limitation
described in the preceding sentence, any amount paid by Great Dane to Associates
under Section 2.15 of this Agreement in a currency other than U.S. dollars shall
be converted into U.S. dollars at the noon spot buying rate in New York City for
cable transfers of such foreign currency as certified for customs purposes by
the Federal Reserve Bank of New York on the business Day such amount is actually
paid by Great Dane. All amounts payable by either party under this agreement
shall be paid in U.S. dollars. "Calendar Year" shall mean the period from the
Effective Date as defined in this Agreement and the Canadian Operating Agreement
until December 31st of that same year and each consecutive twelve-month period
thereafter (or portion thereof in the event this Agreement is terminated during
any such twelve-month period).
Section 2.17. AIC ACCOUNT. (a) The company shall credit to a reserve
account to be created and maintained on the books and records of the Company
(referred to herein as the "AIC Account"), the sum of three-eights of one
percent (.375%) of the original Unpaid Cash Price included in each contract
subject to this Agreement regarding new Property and the sum of one-half of one
percent (.50%) of the original Unpaid Cash Price included in each Contract
purchased by the Company from an Affiliate Dealer subject to this Agreement
regarding used Property. If for any reason the Company rebates any Finance
Charges included in a Contract to the Great Dane Customer, then the Company
shall debit from the AIC Account an amount which, in relation to the original
amount credited to the AIC Account for such Contract, is in the same ratio as
the amount such rebate bears to the original Finance Charges included in such
Contract. Except as set forth in Section 2.15 and Section 2.17(b), the Company
shall hold all amounts in the AIC Account until such time as all Contracts
subject to this Agreement and the Canadian Operating Agreement have been paid in
full and at such time these amounts shall become the property of and disbursed
to Great Dane.
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2. All other terms and conditions of the Agreement shall remain unchanged and
in full force and effect.
Dated: May 18, 1994
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GREAT DANE TRAILERS, INC. ASSOCIATES COMMERCIAL CORPORATION
By: /s/ T. W. Horan By: /s/ Arnold Strang
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Title: Senior VP Finance Title: Vice President
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