Exhibit 10.2
EXECUTION COPY
AMENDMENT AND EXTENSION
TO
AMENDED AND RESTATED
CERTIFICATE PURCHASE AGREEMENT
THIS AMENDMENT AND EXTENSION TO
AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT (this “
Amendment ”) dated as of August 25, 2009, is
entered into among Navistar Financial Securities Corporation (the
“ Seller ”), Navistar Financial Corporation
(“ Servicer ”), Kitty Hawk Funding Corporation,
(“ KHFC ”), as a Conduit Purchaser, Liberty
Street Funding LLC (f/k/a Liberty Street Funding Corp., “
Liberty Street ”), as a Conduit Purchaser, The Bank of
Nova Scotia (“ BNS ”), as a Managing Agent and a
Committed Purchaser, and Bank of America, National Association
(“ Bank of America ”), as a Managing Agent, the
Administrative Agent and a Committed Purchaser.
R E C I T A L S
A. The Seller, the Servicer, KHFC,
Liberty Street, BNS and Bank of America are parties to that certain
Amended and Restated Certificate Purchase Agreement, dated as of
December 27, 2004 (as amended, supplemented or otherwise
modified through the date hereof, the “ Agreement
”).
B. Such parties desire to amend the
Agreement as hereafter set forth.
C. Such parties desire to modify the
Purchase Expiration Date under (and as defined in) the Agreement in
accordance with Section 2.04 of the Agreement.
D. NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Amendments to Agreement .
By their signatures hereto, each of the parties hereto hereby
agrees that the Agreement is hereby amended as set forth in this
Section 1.
(A) The initial
“Commitment” of each Committed Purchaser described in
clause (b) of the definition of “Commitment” by
reference to the signature pages to the Agreement shall be deemed
to refer to the “Commitments” of each Committed
Purchaser set forth on the signature pages to this
Amendment.
(B) The definition of “Maximum
Funded Amount” be amended in its entirety to read as
follows:
“ Maximum Funded Amount
” means the sum of the Commitments.
(C) The definition of “
Purchaser Percentage ” shall be amended in its
entirety to read as follows:
“Purchaser Percentage”
means, with respect to any Committed Purchaser, the percentage
equivalent of (a) such Committed Purchaser’s Commitment
and (b) the sum of the Commitments of all Committed
Purchasers.
(D) The definition of “Special
Commitment Reduction” shall be deleted.
(E) Section 2.05 of the
Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 2.05 Reduction of Maximum
Funded Amount. The Seller may reduce in whole or in part the
Maximum Funded Amount (but not below the Invested Amount) by giving
the Administrative Agent (with a copy to each Managing Agent)
written notice thereof at least five Business Days before such
reduction is to take place; provided, however, that any partial
reduction shall be in an aggregate amount of $10,000,000, or any
integral multiples of $5,000,000 in excess thereof. Any such
reduction in the Maximum Funded Amount shall be permanent and shall
be allocated between the Purchaser Groups on a pro rata basis;
provided that after the Fourth Amendment Effective Date and until
such time as the Commitment of Bank of America is reduced to
$250,000,000 or less, such reduction shall first reduce the
Commitment of Bank of America, National Association to
$250,000,000, and thereafter any reduction shall be allocated
between the Purchaser Groups on a pro rata basis. The applicable
Purchasers shall be paid any accrued and unpaid Non Use Fees and
Excess Commitment Fees on the date of such reduction with respect
to the reduction amount. If in connection with any non- pro
rata reduction of Bank of America’s Commitment pursuant
to this Section 2.05 or any automatic reduction in Bank of
America’s Commitment on the earlier of (a) the closing
date of an ABS Transaction or (b) December 28, 2009, a
portion of the Funded Amount shall be assigned from the Purchasers
in the KHFC Purchaser Group to the Purchasers in the Liberty Street
Purchaser Group so that after giving effect to such assignment, the
portion of the Funded Amount funded by the KHFC Purchaser Group
shall equal Bank of America’s Purchaser Percentage of the
Funded Amount; provided, however , that no assignment shall
be made pursuant to this sentence if an Early Amortization Event
shall have occurred and be continuing; and provided, further
, that in no event shall any such assignment cause the portion of
the Funded Amount funded by the Purchasers in the Liberty Street
Funding Group to exceed the Commitment of BNS. Any assignment
contemplated by the preceding sentence (i) shall be evidenced
by an assignment agreement in form satisfactory to each Managing
Agent and (ii) may be made to Liberty Street, in the sole and
absolute discretion of Liberty Street, or if Liberty Street elects
to not accept such assignment, shall be made to BNS, as Committed
Purchaser.
2. Extension . The Purchase
Expiration Date is extended to the earlier of
(a) August 24, 2010, (b) the date specified in
clause (ii) of the definition of Purchase Expiration Date in
the Agreement as originally executed, (c) the earlier of the
maturity date of the Credit Agreement or the termination of the
lending commitments of the lenders thereunder or (d) the date
on which the “Purchase Expiration Date” is deemed to
have occurred in
2
accordance with the definition of
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