Exhibit 10.4
AMENDMENT NO. 10
TO RECEIVABLES PURCHASE
AGREEMENT
THIS AMENDMENT
NO. 10 (this
“Amendment” ) , dated as of
July 31, 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 new definition is
hereby inserted into Exhibit I to the Agreement in its appropriate
alphabetical order:
“Base
LIBOR” means
the rate per annum equal to (a) the applicable British
Bankers’ Association Interest Settlement Rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the first day of the
relevant Tranche Period, and having a maturity equal to such
Tranche Period, provided that (i) if Reuters
Screen FRBD is not available to the Agent for any reason, the
applicable Base LIBOR for the relevant Tranche Period shall instead
be the applicable British Bankers’ Association Interest
Settlement Rate for deposits in U.S. dollars as reported by any
other generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day
of such Tranche Period, and having a maturity equal to such Tranche
Period, and (ii) if no such British Bankers’ Association
Interest Settlement Rate is available to the Agent, the applicable
Base LIBOR for the relevant Tranche Period shall instead be the
rate determined by the Agent to be the rate at which JPMorgan Chase
Bank, N.A. offers to place deposits
1
in U.S. dollars with first-class
banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Tranche Period, in the approximate amount to be funded at the Base
LIBOR and having a maturity equal to such Tranche Period,
divided by (b) one minus the maximum aggregate
reserve requirement (including all basic, supplemental, marginal or
other reserves) which is imposed against the Agent in respect of
Eurocurrency liabilities, as defined in Regulation D of the Board
of Governors of the Federal Reserve System as in effect from time
to time (expressed as a decimal), applicable to such Tranche
Period. The Base LIBOR shall be rounded, if necessary, to the next
higher 1 / 16
of 1%.
(b) The following definitions in
Exhibit I to the Agreement are hereby amended and restated in their
entirety to read, respectively, as follows:
“Alternate Base
Rate” means a
rate per annum equal to the sum of (a) the
highest of (i) the Prime Rate, (ii) the sum of the
Federal Funds Effective Rate plus 0.50%, and (iii) the sum of
Base LIBOR plus 1.00%, plus
(b) 4.00%.
“Fee
Letter” means
that certain second amended and restated fee letter dated as of
July 31, 2009 among Seller, Transferor, the Trust and the
Agent, as it may be further amended, restated or otherwise modified
and in effect from time to time.
“LIBO
Rate” means,
for any Tranche Period, the rate per annum equal to the sum
of (a) the Base LIBOR, plus
(b) 5.00%.
“Liquidity Termination
Date” means
November 9, 2009.
“Transfer
Agreement” means that certain Amended and Restated Master
Intercompany Agreement, dated as of April 1, 2007, by and
between Parent and Transferor, as may be amended supplemented,
restated or otherwise modified.
(c) The following new Sections
9.1(m) and (n) are hereby added to the Agreement:
(m) On or before August 31,
2009, the Transferor shall have failed to establish a separate
lock-box and account to which High Yield Receivables are paid and
to have notified all obligors on then existing High Yield
Receivables to make payments to such new lock-box or
account.
(n) Without the consent of the
Agent, Parent and Transferor shall amend the Transfer Agreement in
any manner that is adverse to the interests of the Purchasers in
any material respect.
(d) By their signatures below, the
Agent and the Purchasers hereby consent to the amendment to the
Transfer Agreement attached as Annex A hereto.
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;
(b) counterpart
