Contract
Exhibit 10.1
AMENDMENT
NO.11
THIS
AMENDMENT NO. 11 (this “Amendment”),
dated as of October 30, 2009, is among Truck Retail Accounts Corporation,
a Delaware corporation (“Seller”),
Navistar Financial Corporation, a Delaware corporation (“Navistar”),
as initial Servicer (Navistar, together with Seller, the “Seller Parties”
and each a “Seller Party”),
the entities listed on Schedule A to the Agreement (together with any of
their respective successors and assigns hereunder, the “Financial
Institutions”), JS Siloed Trust (the “Trust”
and, together with the Financial Institutions, the “Purchasers”), and
JPMorgan Chase Bank, N.A., successor by merger to Bank One, NA, as agent for the
Purchasers (together with its successors and assigns, the “Agent”),
and pertains to that certain Receivables Purchase Agreement dated as of
April 8, 2004 by and among the parties hereto, as heretofore amended (the “Agreement”).
Unless defined elsewhere herein, capitalized terms used in this Amendment
shall have the meanings assigned to such terms in the Agreement.
PRELIMINARY
STATEMENT
The
Seller Parties have requested that the Agent and the Purchasers agree to certain
amendments to the Agreement; and
The Agent
and the Purchasers are willing to agree to the requested amendments on the terms
hereinafter set forth.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1. Amendments.
(a) The
following definitions in Exhibit I to the Agreement are hereby amended and
restated in their entirety to read, respectively, as follows:
“Delinquent
Receivable” means a Receivable, including an A Receivable, B Receivable
or C Receivable, as to which any payment, or part thereof, remains unpaid for 61
days or more from the original due date for such payment.
“Dilution Ratio”
means, a percentage equal to (i) the aggregate amount of Dilutions which
occurred during the calendar month then most recently ended, divided by (ii) the
aggregate gross sales of the Originator giving rise to Receivables during the
third calendar month prior to the calendar month referenced in clause (i),
calculated on a monthly basis.
“Fee Letter”
means that certain third amended and restated fee letter dated as of
October 30, 2009 among the Seller, Transferor, the Trust and the Agent, as it
may be further amended, restated or otherwise modified and in effect from time
to time.
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“Independent
Director” shall mean a member of the Board of Directors of Seller who (i)
shall not have been at the time of such Person’s appointment or at any time
during the preceding five years, and shall not be as long as such Person is a
director of the Seller, (A) a director, officer, employee, partner, shareholder,
member, manager or Affiliate of any of the following Persons (collectively, the
“Independent
Parties”): Parent, Transferor, Servicer, Originator, or any of their
respective Subsidiaries or Affiliates (other than Seller), (B) a supplier to any
of the Independent Parties, (C) a Person controlling or under common control
with any partner, shareholder, member, manager, Affiliate or supplier of any of
the Independent Parties, or (D) a member of the immediate family of any
director, officer, employee, partner, shareholder, member, manager, Affiliate or
supplier of any of the Independent Parties; (ii) has prior experience as an
independent director for a corporation or limited liability company whose
charter documents required the unanimous consent of all independent directors
thereof before such corporation or limited liability company could consent to
the institution of bankruptcy or insolvency proceedings against it or could file
a petition seeking relief under any applicable federal or state law relating to
bankruptcy; and (iii) has at least three years of employment experience with one
or more entities that provide, in the ordinary course of their respective
businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or
securities.
“Liquidity
Termination Date” means October 29, 2010.
(b) The
definition of “Eligible
Receivable” in Exhibit I to the Agreement is hereby amended to delete
subsection (xxi) thereof in its entirety.
(c) The
definition of “Eligible
Receivable” in Exhibit I to the Agreement is hereby amended to add the
following new subsection (xxii):
(xxii)
the obligor of which has not had any Receivable converted to a note or otherwise
extended in a similar manner (other than in connection with a refinancing of a
Receivable).
(d) The
following new Section 7.1(b)(vii) is hereby added to the Agreement:
(vii)
Appointment of
Independent Director. The decision to appoint a new director of the
Seller as the “Independent Director” for purposes of this Agreement, such notice
to be issued not less than ten (10) days prior to the effective date of such
appointment and to certify that the designated Person satisfies the criteria set
forth in the definition herein of “Independent Director.”
(e) The
following sentence is added to the end of Section 8.2(b) of the
Agreement:
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In the
event that the long-term debt rating of any Blocked Account Bank is downgraded
by Standard and Poor’s Ratings Group to BBB+ or lower or by Xxxxx’x Investor
Service, Inc. to Baa1 or lower, the Agent may in its sole discretion require
that a new Blocked Account be opened with a Blocked Account Bank with ratings in
excess thereof (such new Blocked Account Bank to be reasonably acceptable to
both the Seller and the Agent). Such new Blocked Account and the related Blocked
Account Agreement shall be open and in effect within 30 days of the Agent
notifying the Seller that it will require such new Blocked Account to be opened.
During the period between such notice and the new Blocked Account becoming
effective, the Agent may direct that any other account reasonably selected by it
be used as the Blocked Account during such interim period, including any account
held at the Agent. As soon as such new Blocked Account is opened and the related
Blocked Account Agreement is executed and in effect, the Servicer will direct
all Collections to such new Blocked Account as otherwise provided in this
Agreement.
(f) The
following new Section 9.1(o) is hereby added to the Agreement:
(o) Any Person
shall be appointed as an Independent Director of the Seller without prior notice
thereof having been given to the Agent inaccordance
with Section
7.1(b)(vii), and
without the written acknowledgement by the Agent that such Person conforms, to
the reasonable satisfaction of the Agent, with the criteria set forth in the
definition herein of “Independent Director.”
Section
2.
Representations and
Warranties. In order to induce the parties to enter into this Amendment,
each of the Seller Parties hereby represents and warrants to the Agent and the
Purchasers that (a) after giving affect to this Amendment, each of such Seller
Party’s representations and warranties contained in Article V of the Agreement
is true and correct as of the date hereof, (b) the execution and delivery by
such Seller Party of this Amendment, and the performance of its obligations
hereunder, are within its corporate or limited partnership, as applicable,
powers and authority and have been duly authorized by all necessary corporate or
limited partnership, as applicable, action on its part, and (c) this Amendment
has been duly executed and delivered by such Seller Party and constitutes the
legal, valid and binding obligation of such Seller Party enforceable against
such Seller Party in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
Section
3. Conditions Precedent.
This Amendment shall become effective as of the date first above written upon
receipt by the Agent of the following:
(a) counterparts
of this Amendment, duly executed by each of the parties hereto;
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(b) counterparts
of the Fee Letter, duly executed by the Transferor, Seller and the Agent, together with
payment of the “Extension Fee” under and as defined therein;
(c) payment
of the reasonable legal fees of Xxxxx Xxxxx LLP, counsel to the Agent, in
connection herewith; and
(d) counterparts
of Amendment No. 8 to Asset Purchase Agreement, duly executed by the Trust and
JPMorgan Chase Bank, N.A., individually and as Funding Agent
thereunder.
Section
4. Miscellaneous.
(a) THIS
AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(b) Except as
expressly modified hereby, the Agreement remains unaltered and in full force and
effect and is hereby ratified and confirmed. This Amendment shall be binding
upon and inure to
the benefit of the parties hereto and their respective successors
and permitted assigns (including any trustee in bankruptcy).
(c) This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
<signature
pages follow>
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IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed and delivered by their
duly authorized officers as of the date hereof.
TRUCK
RETAIL ACCOUNTS CORPORATION
By: /s/
XXXX
XXXXXXXXX
Xxxxxxx
X. XxXxxxxxx
V.P., CFO
& Treasurer
NAVISTAR
FINANCIAL CORPORATION
By: /s/
XXXX
XXXXXXXXX
Xxxxxxx
X. XxXxxxxxx
V.P., CFO
& Treasurer
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JS SILOED
TRUST
BY:
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE TRUSTEE
By:
/s/ XXXXX X.
XXXXXXXX
Xxxxx X.
Xxxxxxxx
Vice
President
JPMORGAN
CHASE BANK, N.A., INDIVIDUALLY
AS A
FINANCIAL INSTITUTION AND AS AGENT
By:
/s/ XXXXX X.
XXXXXXXX
Xxxxx X.
Xxxxxxxx
Vice
President
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