Exhibit 10.1
AMENDMENT NO. 8
TO RECEIVABLES PURCHASE
AGREEMENT
THIS AMENDMENT
NO. 8 (this
“Amendment” ) , dated as of
October 24, 2008, 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 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) Section 2.6 of the
Agreement is hereby amended to delete “two (2) Business
Days” where it appears and to substitute in lieu thereof
“one (1) Business Day.”
(b) All references to “Prime
Rate” in Sections 1.4, 4.1, 4.4 and 4.5, in the definition of
“Tranche Period” and in Exhibit II are
hereby replaced with “Alternate Base Rate”.
(c) Section 8.5 of the
Agreement is hereby amended and restated in its entirety to read as
follows:
Section 8.5.
Reports . The Servicer shall prepare and forward to the
Agent (i) on the 15 th day of each month or, if such
day is not a Business Day, the first Business Day thereafter and at
such times as the Agent shall request, a Monthly Report,
(ii) on the second Business Day of each week, a Weekly Report
which updates the previous month’s Monthly Report for the
previous week’s Incremental Purchases and Collections, and
(iii) at such times as the Agent shall reasonably request, a
listing by Obligor of all Receivables together with an aging of
such Receivables.
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(d) Section 9.1(f) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
(f) As at the end of any calendar
month, the three month rolling average Delinquency Ratio shall
exceed 5.5% or the three month rolling average Default Trigger
Ratio shall exceed 3.0% or the three month rolling average Dilution
Ratio shall exceed 1.5%.
(e) A new Section 9.1(l) is
hereby added to the Agreement which reads as follows:
(l) Navistar shall fail to observe
or perform any condition, covenant or agreement contained in
Section 8.01 of the Transferor Credit Agreement as of
October 24, 2008; provided, however, if the Transferor Credit
Agreement is terminated or Section 8.01 of the Transferor
Credit Agreement or any defined term or provision that affects the
calculation specified in Section 8.01 of the Transferor Credit
Agreement is terminated, amended, supplemented or modified, then
Section 8.01 as used herein may, at the direction of the
Agent, be similarly terminated, amended, supplemented or
modified.
(f) The following new definitions
are hereby added to Exhibit I to the Agreement in their appropriate
alphabetical order:
“Alternate Base
Rate” means a
rate per annum equal to the higher of (a) the Prime Rate, and
(b) the sum of the Federal Funds Effective Rate plus 50 basis
points, provided, however, that in no event shall
such higher rate for any day be less than the LIBO Rate for a
Tranche Period of one month on such date (or the immediately
preceding Business Day, if such date is not a Business Day),
adjusted for statutory reserves (if any) applicable to the
Agent.
“Excess
Refinancings” means the amount, if any, by which Receivables
that are refinanced by Navistar Financial Corporation in any
calendar month exceed 5% of the aggregate Outstanding Balance of
all Receivables on the last day of the prior calendar
month.
(g) The definitions of the following
terms set forth in Exhibit I to the Agreement are hereby amended
and restated in their entirety to read, respectively, as
follows:
“Concentration
Limit” means, at any time, for any
Obligor, 6.67% of Eligible Receivables, or such other amount (a
“ Special Concentration Limit ”) for such
Obligor designated by the Agent; provided, that in the case of an
Obligor and any Affiliate of such Obligor, the Concentration Limit
shall be calculated as if such Obligor and such Affiliate are one
Obligor; and provided, further, that Trust or the Required
Financial Institutions may, upon notice to Seller, cancel any
Special Concentration Limit; provided ,
however , that such Special Concentration Limit shall
remain in place until the first Weekly Settlement Date following
the fifteenth (15 th ) Business Day following
the delivery of such notice. As of October 24, 2008 until
notice from the Agent to the contrary in accordance with
the
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proceeding sentence, the following
Special Concentration Limits, as amended with the Agent’s
consent in the Weekly Report, shall be in effect: (i) Walmart
Leasing, and Affiliates, 18% of Eligible Receivables;
(ii) Anheuser Bush, Inc. and Affiliates, 10% of Eligible
Receivables; (iii) Safeway Stores, 10% of Eligible
Receivables; (iv) Sara Lee, and Affiliates 10% of Eligible
Receivables; (v) Ryder Truck Rental and Affiliates, 10% of
Eligible Receivables and (vi) Laidlaw, Inc. and Affiliates, 5%
of Eligible Receivables.
“Default
Fee” means with
respect to any amount due and payable by Seller in respect of any
Aggregate Unpaids, an amount equal to the interest on any such
unpaid Aggregate Unpaids at a rate per annum equal to 200 basis
points above the Alternate Base Rate.
“Dilutions”
means, as of any date, the sum of
(a) the aggregate amount of reductions or cancellations
described in clause (i) of the definition of “Deemed
Collections” plus (b) the aggregate amount of
Excess Refinancings during the calendar month then most recently
ended (it being understood that Excess Refinancings need only be
counted once per month as Dilutions).
“Discount
Rate” means,
the LIBO Rate or the Alternate Base Rate, as applicable, with
respect to each Purchaser Interest of the Financial
Institutions.
“Liquidity Termination
Date” means
August 7, 2009.
“Originator”
means Navistar, Inc., formerly known
as International Truck and Engine Corporation, a Delaware
corporation, and its successors.
(h) Clauses (xv), (xx) and
(xxi) of the definition of “Eligible
Receivable” set forth in Exhibit I to the Agreement
are hereby deleted and replaced, respectively, with the
following:
(xv) which is not subject to any
right of rescission, set-off, counterclaim, any other defense
(including defenses arising out of violations of usury laws) (any
such right referred to herein as a “Setoff
Right” ) of the applicable Obligor against Parent or
any other Adverse Claim, and the Obligor thereon holds no right as
against Parent to cause Parent to repurchase the goods or
merchandise the sale of which shall have given rise to such
Receivable (except with respect to sale discounts effected pursuant
to the Contract, or defective goods returned in accordance with the
terms of the Contract); provided, however , any
Receivable subject to a Setoff Right will be included as an
Eligible Receivable provided, that the aggregate
of
