AMENDMENT NO. 1
This Amendment (this Amendment) is made as of this 31 day of December 2018 by and between Navistar, Inc., a Delaware corporation (Navistar) and Olive Investor, L.P., a Delaware limited partnership (Investor). From time to time herein, any party hereto may be referred to as a Party and, jointly, as the Parties.
WHEREAS, the Parties are party to that certain Recapitalization Agreement dated as of November 30, 2018 (the Recap Agreement), pursuant to which, among other things, Navistar agreed to sell, transfer and convey, and Investor agreed to purchase, receive and accept, seventy (70) Units, such that Investor will own seventy percent (70%) of the issued and outstanding Units, Navistar will own twenty-nine percent (29%) of the issued and outstanding Units and ITEI will own one percent (1%) of the issued and outstanding Units.
WHEREAS, for good and valuable consideration and pursuant to the mutual agreement of the Parties, the Parties desire to enter into this Amendment in order to amend the definition of the Effective Time under the Recap Agreement.
NOW, THEREFORE, in exchange for the mutual covenants and undertakings set forth herein, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Definition of Effective Time. The definition of Effective Time under the Recap Agreement is hereby amended and restated in its entirety as follows:
Effective Time means 11:59 p.m. New York City Time on the Closing Date.
2. Definition of Closing Cash. The definition of Closing Cash under the Recap Agreement is hereby amended and restated in its entirety as follows:
Closing Cash means the aggregate amount of Cash of the Subject Companies as of the Effective Time, subject to the items expressly applicable to Closing Cash in Schedule 1.2(b), for the avoidance of doubt including Section 1 thereof (provided, that the first proviso shall only apply to those other sections of Schedule 1.2(b) that expressly reference Closing Cash); provided, that Closing Cash shall exclude (a) any Excluded Asset and (b) the proceeds received by Navistar Defense in the Debt Financing Transactions; provided, further, that to the extent that, after the Closing but prior to the Effective Time, (A) Seller Transaction Expenses, Shared Transaction Expenses or non-current liabilities of the Subject Companies are reduced as a result of a payment of any such amounts, (B) any distributions are made by the Company or (C) any non-current assets are purchased, in each case, using Cash of the Subject Companies, Closing Cash shall be increased by such amount; provided, further, that Closing Cash shall not take into account the funds flow or cash flows arising on the Closing, including any amounts received under the Debt Financing Transactions or received from Buyer or its Affiliates in connection with the Closing.