exhibit10_138.htm


    EXECUTION
      COPY

    
FIRST
      AMENDED CONTROL AGREEMENT

     

    This
      First Amended Control Agreement, dated as of February 20, 2007 (this “Agreement”), is among
      Truck Retail Accounts Corporation, as seller (the “Seller”), Navistar
      Financial Corporation, as servicer (the “Servicer”), JPMorgan
      Chase Bank N.A., as successor to Bank One, NA (Main Office Chicago), as agent
      (the “Secured
      Party”), and The Bank of New York as successor to JPMorgan Chase Bank,
      N.A., as securities intermediary (the “Securities
      Intermediary”).

     

    RECITALS

     

    WHEREAS,
      pursuant to the Receivables Purchase Agreement, the Seller has granted to the
      Secured Party a security interest in investment property consisting of the
      Securities Account, related Security Entitlements and the Financial Assets
      and
      other investment property from time to time included therein; and

     

    WHEREAS,
      the parties hereto desire that the security interest of the Secured Party in
      the
      Securities Account be a first priority security interest perfected by “control”
pursuant to Articles Eight and Nine of the UCC.

     

    NOW,
      THEREFORE, in consideration of the premises and other good and valuable
      consideration, the receipt and sufficiency of which are hereby acknowledged,
      the
      parties hereto agree as follows:

    
       

      ARTICLE
        I

    

     DEFINITIONS

     

    Section
      1.01.  General
      Definitions.  Except as otherwise specified herein or as the
      context may otherwise require, the following terms have the respective meanings
      set forth below for all purposes of this Agreement.

     

    “Agreement”
has
      the
      meaning set forth in the Preamble.

     

    “Business
      Day” means
      any day on which banks are not authorized or required to close in New York,
      New
      York or Chicago, Illinois and The Depository Trust Company of New York is open
      for business.

     

    “Blocked
      Account”
means a trust account number 232874 in the name “Blocked Account for JPMorgan
      Chase Bank, N.A., as Agent” established with the Securities Intermediary
      together with any successor accounts established pursuant to the Receivables
      Purchase Agreement.

     

    
      
        
        

      

      
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    “Entitlement
      Holder”
means, with respect to any Financial Asset, a Person identified in the
      records
      of the Securities Intermediary as the Person having a Security Entitlement
      against the Securities Intermediary with respect to such financial
      asset.

     

    “Entitlement
      Order”
means a notification directing the Securities Intermediary to transfer
      or redeem
      a financial asset.

     

    “Financial
      Asset” has
      the meaning specified in Section 8-102(a)(9) of the UCC.

     

    “Person”
means
      any
      individual, corporation, estate, partnership, joint venture, association, joint
      stock company, trust (including any beneficiary thereof), unincorporated
      organization or government or any agency or political subdivision
      thereof.

     

    “Rating
      Agencies”
means Moody’s Investors Service, Inc. and Standard and Poor’s Ratings
      Group.

     

    “Receivables
      Purchase
      Agreement” means the Receivables Purchase Agreement, dated as of
      April 8, 2004 (as amended, supplemented or otherwise modified and in effect
      from time to time), among the Seller, the Servicer, Jupiter Securitization
      Corporation, as Conduit and JPMorgan Chase Bank, N.A., as successor to Bank
      One,
      N.A., as Agent.

     

    “Secured
      Party” has
      the meaning set forth in the Preamble.

     

    “Securities
      Account”
means the Blocked Account.

     

    “Securities
      Intermediary” has the meaning set forth in the Preamble.

     

    “Security
      Entitlement”
means the rights and property interest of an Entitlement Holder with
      respect to
      a financial asset, as specified in Part 5 of Article 8 of the
      UCC.

     

    “UCC”
means
      the
      Uniform Commercial Code as in effect in the State of New York on the date
      hereof or any successor statute, or any comparable law, as the same may from
      time to time be amended, supplemented or otherwise modified.

     

    “Weekly
      Settlement
      Date” means the third Business Day of each week.

     

    Section
      1.02.  Incorporation
      of UCC by
      Reference.  Except as otherwise specified herein or as the
      context may otherwise require, all terms used in this Agreement not otherwise
      defined herein which are defined in the UCC shall have the meanings assigned
      to
      them in the UCC.

    
       

      
        
          
          

        

        
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      ARTICLE
        II

    

     ESTABLISHMENT
      OF CONTROL OVER SECURITIES ACCOUNT

     

    Section
      2.01.  Establishment
      of Securities
      Account.  The Securities Intermediary hereby confirms that
      (i) the Securities Intermediary has established the Securities Account
      specifically referenced in the definition thereof, (ii) the Securities
      Account is an account to which Financial Assets are or may be credited,
      (iii) the Securities Intermediary shall, subject to the terms of this
      Agreement, treat the Secured Party as entitled to exercise the rights that
      comprise any Financial Asset credited to the Securities Account, (iv) all
      property delivered to the Securities Intermediary by or on behalf of the Seller
      or the Secured Party for deposit to the Securities Account will promptly be
      credited to such Securities Account and (v) all securities or other
      property underlying any Financial Assets credited to the Securities Account
      shall be registered in the name of the Securities Intermediary, endorsed to
      the
      Securities Intermediary or in blank or credited to another securities account
      maintained in the name of the Securities Intermediary and in no case will any
      Financial Asset credited to the Securities Account be registered in the name
      of
      the Seller, payable to the order of the Seller or specifically endorsed to
      the
      Seller except to the extent the foregoing have been specially endorsed to the
      Securities Intermediary or in blank.

     

    Section
      2.02.  “Financial
      Assets”
Election.  The Securities Intermediary and the other parties
      hereto hereby agree that each item of property (whether investment property,
      financial asset, security, instrument or cash) credited to the Securities
      Account shall be treated as a “financial asset” within the meaning of
      Section 8-102(a)(9) of the UCC.

     

    Section
      2.03.  Entitlement
      Orders.                                           Unless
      and until the Securities Intermediary should have received an Entitlement Order
      from the Secured Party, the Seller or the Servicer may give instructions to
      the
      Securities Intermediary relating to the redemption or transfer of Financial
      Assets in the Securities Account.  If at any time the Securities
      Intermediary shall receive any Entitlement Order from the Secured Party with
      respect to the Securities Account, the Securities Intermediary shall comply
      with
      such Entitlement Order without further consent by the Seller or any other
      Person.  After receipt of an Entitlement Order from the Secured Party,
      the Securities Intermediary shall not comply with any Entitlement Order from
      the
      Seller or the Servicer unless and until the Securities Intermediary shall have
      received notice from the Secured Party authorizing the Securities Intermediary
      to follow any subsequent Entitlement Order delivered to the Securities
      Intermediary by the Seller or the Servicer.

     

    Section
      2.04.  Subordination
      of Lien;
      Waiver of Set-Off.  In the event that the Securities
      Intermediary has or subsequently obtains by agreement, operation of law or
      otherwise a security interest in the Securities Account or any Security
      Entitlement credited thereto, the Securities Intermediary hereby agrees that
      such security interest shall be subordinate to the security interests of the
      Secured Party.  The Financial Assets and other items deposited to the
      Securities Account will not be subject to deduction, set-off, banker’s lien or
      any other right in favor of any Person or entity other than the Secured Party
      (except that the Securities Intermediary may set off against amounts on deposit
      in the Securities Account (i) all amounts due to it in respect of its
      customary fees and expenses for the routine maintenance and operation of such
      Securities Account and (ii) the face amount of any checks which have been
      credited to such Securities Account but are subsequently returned unpaid because
      of uncollected or insufficient funds).

     

    
      
        
        

      

      
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    Section
      2.05.  Notice
      of Adverse
      Claims.  Except for the claims and interests of the Secured
      Party and the Seller in the Securities Account, the Securities Intermediary
      does
      not know of any claim to, or interest in, the Securities Account or in any
      Financial Asset credited thereto.  If any Person asserts any lien,
      encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
      of attachment, execution or similar process) against the Securities Account
      or
      in any Financial Asset carried therein, and the Securities Intermediary has
      actual knowledge thereof, the Securities Intermediary will promptly notify
      the
      Secured Party and the Seller thereof.

     

    
      ARTICLE
        III

    

     REPRESENTATIONS,
      WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY

     

    Section
      3.01.  Representations,
      Warranties
      and Covenants of the Securities Intermediary.  The Securities
      Intermediary hereby represents and warrants to the Secured Party and the Seller,
      and covenants that:

     

    (a)  The
      Securities Account has been established as set forth in Section 2.01 and
      will be maintained in the manner set forth herein until termination of this
      Agreement.  The Securities Intermediary shall not change the name or
      account number of the Securities Account without the prior written consent
      of
      the Secured Party.

     

    (b)  No
      Financial Asset carried in the Securities Account is or will be registered
      in
      the name of the Seller, payable to the order of the Seller, or specially
      endorsed to the Seller, except to the extent such Financial Asset has been
      endorsed to the Securities Intermediary or in blank.

     

    (c)  This
      Agreement is the valid and legally binding obligation of the Securities
      Intermediary.

     

    (d)  The
      Securities Intermediary has not entered into, and until the termination of
      this
      Agreement, will not enter into, any agreement pursuant to which it agrees to
      comply with Entitlement Orders of any Person other than the Secured Party,
      the
      Seller and the Servicer with respect to the Securities Account.

     

    (e)  The
      Securities Intermediary has not entered into any other agreement with the Seller
      or the Secured Party purporting to limit or condition the obligation of the
      Securities Intermediary to comply with Entitlement Orders as set forth in
      Section 2.03.

     

    
      
        
        

      

      
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      ARTICLE
        IV

    

     

    RIGHTS
      OF
      THE SECURITIES INTERMEDIARY

     

    Section
      4.01.  Indemnity.  The
      Servicer hereby agrees to defend, indemnify and hold harmless the Securities
      Intermediary, its directors, officers, employees and agents from and against
      any
      and all claims, demands, causes of action, lawsuits, settlements, liabilities,
      losses, damages, costs and expenses, including, without limitation, court costs
      and reasonable attorneys’ fees and expenses, in any way related to or arising
      out of or in connection with this Agreement or any action taken or not taken
      pursuant to this Agreement, except to the extent caused by the Securities
      Intermediary’s gross negligence or willful misconduct.

     

    Section
      4.02.  Compensation
      and
      Expenses.  The Servicer hereby agrees to pay to the Securities
      Intermediary such compensation as the Securities Intermediary and the Servicer
      shall agree in writing from time to time.  The Servicer shall
      reimburse the Securities Intermediary for all reasonable expenses, disbursements
      and other third-party costs reasonably incurred by the Securities Intermediary
      in connection with its administration of the Securities Account.

     

    Section
      4.03.  Certain
      Rights of the
      Securities Intermediary.

     

    (a)  The
      duties, responsibilities and obligations of Securities Intermediary shall be
      limited to those expressly set forth herein and no duties, responsibilities
      or
      obligations shall be inferred or implied.

     

    (b)  Securities
      Intermediary shall not be subject to, charged with the knowledge of any
      provision of, nor required to comply with, (i) any other agreement between
      or
      among the Seller, the Servicer and the Secured Party or (ii) any agreement
      to
      which either the Seller, the Servicer or the Secured Party is a party, even
      though reference thereto may be made herein.

     

    (c)  Securities
      Intermediary shall not be required to, and shall not, expend or risk any of
      its
      own funds or otherwise incur any financial liability in the performance of
      any
      of its duties hereunder, except in connection with any liabilities arising
      out
      of Securities Intermediary’s gross negligence or willful
      misconduct.

     

    (d)  Securities
      Intermediary shall not be liable for any action taken or omitted or for any
      loss
      or injury resulting from its actions or its performance or lack of performance
      of its duties hereunder in the absence of gross negligence or willful misconduct
      on its part.

     

    (e)  The
      Securities Intermediary shall be entitled to rely upon any written instructions
      actually received by it and reasonably believed by it to be duly authorized
      and
      delivered.

     

    
      ARTICLE
        V

    

     

    MISCELLANEOUS

     

    Section
      5.01.  Choice
      of
      Law.  This Agreement and the Securities Account shall be
      governed by the laws of the State of New York.  Regardless of any
      provision in any other agreement, for purposes of the UCC, New York shall
      be deemed to be the Securities Intermediary’s location and the Securities
      Account (as well as the Security Entitlements related thereto) shall be governed
      by the laws of the State of New York.

     

    
      
        
        

      

      
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    Section
      5.02.  Conflict
      with other
      Agreements.  There are no other agreements entered into between
      the Securities Intermediary in such capacity and the Seller with respect to
      the
      Securities Account.  In the event of any conflict between this
      Agreement (or any portion thereof) and any other agreement now existing or
      hereafter entered into, the terms of this Agreement shall prevail.

     

    Section
      5.03.  Amendments.  No
      amendment or modification of this Agreement or waiver of any right hereunder
      shall be binding on any party hereto unless it is in writing and is signed
      by
      all of the parties hereto.

     

    Section
      5.04.  Successors.  The
      terms of this Agreement shall be binding upon, and shall inure to the benefit
      of, the parties hereto and their respective corporate successors.

     

    Section
      5.05.  Notices.  All
      demands, notices and communications hereunder shall be in writing and shall
      be
      deemed to have been duly given if personally delivered at or mailed by
      registered mail, return receipt requested, to, in the case of (i) the
      Seller, at 425 North Martingale Road, Suite 1800, Schaumburg, IL 60173,
      Attention: Vice President & Treasurer, telecopier
      no. (630) 753-4090, (ii) the Servicer, at 425 North Martingale Road,
      Suite 1800, Schaumburg, IL 60173, Attention: Vice President & Treasurer,
      telecopier no. (630) 753-4090, (iii) the Secured Party,  JPMorgan
      Chase Bank, N.A., Attetion:  Asset Backed Securities Group, Chase
      Tower, 10 South Dearborn Street, Chicago, Illinois 60603 and (iv) the
      Securities Intermediary, 101 Barclay Street, 4W,  New York, New York
      10286, Attn: Structured Finance Services, telecopier
      no. (212) 815-3883, or as to any of such parties, at such other
      address as shall be designated by such party in a written notice to the other
      parties.

     

    Section
      5.06.  Termination.  The
      rights and powers granted herein to the Secured party have been granted in
      order
      to perfect its security interest in the Securities Account, are powers coupled
      with an interest and will neither be affected by the bankruptcy of the Seller
      nor by the lapse of time.  The obligations of the Securities
      Intermediary hereunder shall continue in effect with respect to the Securities
      Account until the Secured Party has notified the Securities Intermediary in
      writing that its security interest in the Securities Account has been
      terminated.

     

    Section
      5.07.  Counterparts.  This
      Agreement may be executed in any number of counterparts, all of which shall
      constitute one and the same instrument, and any party hereto may execute this
      Agreement by signing and delivering one or more counterparts.

     

    Section
      5.08.  Permitted
      Investments.  Until an Entitlement Order has been received by
      the Securities Intermediary, the Securities Intermediary may comply with written
      instructions (by standing instructions or otherwise) to invest funds on deposit
      in the Securities Account from time to time in Permitted Investments (as defined
      below) from either the Seller or the Servicer.  After an Entitlement
      Order has been received by the Securities Intermediary, the Securities
      Intermediary shall comply with instructions from Secured Party
      only.  In the absence of written investment instructions, funds on
      deposit in the Securities Account shall remain uninvested.  In the
      event of a loss on the sale of such investments, the Securities Intermediary
      shall have no responsibility in respect of such loss, except with respect to
      its
      gross negligence or willful misconduct.

     

    
      
        
        

      

      
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    For
      purposes of this Agreement, “Permitted
      Investments” shall mean: book-entry securities, negotiable instruments or
      securities represented by instruments in bearer or registered form which
      evidence:

     

    
      	
              (i)  

            	
              direct
                obligations of, and obligations fully guaranteed as to timely payment
                of
                principal and interest by, the United States of
                America;

            


    

     

    
      	
              (ii)  

            	
              demand
                deposits, time deposits or certificates of deposit of any depository
                institution or trust company incorporated under the laws of the United
                States of America or any state thereof (or any domestic branch of
                a
                foreign bank) and subject to supervision and examination by Federal
                or
                State banking or depository institution authorities; provided,
however,
                that
                at the time of the investment or contractual commitment to invest
                therein,
                the commercial paper or other short-term unsecured debt obligations
                (other
                than such obligations the rating of which is based on the credit
                of a
                Person other than such depository institution or trust company) thereof
                shall have a credit rating from each of the Rating Agencies in the
                highest
                investment category for short-term unsecured debt obligations or
                certificates of deposit granted
                thereby;

            


    

     

    
      	
              (iii)  

            	
              commercial
                paper having, at the time of the investment or contractual commitment
                to
                invest therein, a rating from each of the Rating Agencies in the
                highest
                investment category for short-term unsecured debt obligations or
                certificates of deposit granted
                thereby;

            


    

     

    
      	
              (iv)  

            	
              investments
                in money market or common trust funds having a rating from each of
                the
                Rating Agencies in the highest investment category for short-term
                unsecured debt obligations or certificates of deposit granted
                thereby;

            


    

     

    
      	
              (v)  

            	
              bankers’
                acceptances issued by any depository institution or trust company
                referred
                to in clause (ii) above;

            


    

     

    
      
        
        

      

      
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              (vi)  

            	
              repurchase
                obligations with respect to any security that is a direct obligation
                of,
                or fully guaranteed by, the United States of America or any agency
                or
                instrumentality thereof the obligations of which are backed by the
                full
                faith and credit of the United States of America, in either case
                entered
                into with (A) a depository institution or trust company (acting as
                principal) described in clause (ii) or (B) a depository
                institution or trust company the deposits of which are insured by
                the
                Federal Deposit Insurance Corporation or the counterparty for which
                has a
                rating from each of the Rating Agencies in the highest investment
                category
                for short-term unsecured debt obligations, is marked to market daily
                and
                is maintained in an amount that exceeds the amount of such repurchase
                obligation, and which requires liquidation of the collateral immediately
                upon the amount of such collateral being less than the amount of
                such
                repurchase obligation (unless the counterparty immediately satisfies
                the
                repurchase obligation upon being notified of such
                shortfall);

            


    

     

    
      	
              (vii)  

            	
              commercial
                paper master notes having, at the time of the investment or contractual
                commitment to invest therein, a rating from each of the Rating Agencies
                in
                the highest investment category for short-term unsecured debt obligations;
                and

            


    

     

    
      	
              (viii)  

            	
              any
                other investment permitted by the Secured
                Party.

            


    

     

    in
      each
      case, other than as permitted by the Secured Party, maturing
      not later than the
      Business Day immediately preceding the next Weekly Settlement Date.

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto
      have caused this Agreement to be duly executed by their respective officers
      as
      of the day and year first above written.

     

    TRUCK
      RETAIL ACCOUNTS CORPORATION,

       as
      Seller

     

    By:                                                                           

    Name:

    Title:

    


    


    JPMORGAN
      CHASE BANK, N.A. as successor to BANK ONE, NA, as Agent,

       as
      Secured Party,

     

    By:                                                                           

    Name:

    Title:

    


    


    THE
      BANK
      OF NEW YORK as successor to JPMORGAN CHASE BANK, N.A.,

       as
      Securities Intermediary,

     

    By:                                                                           

    Name:

    Title:

    


    


    NAVISTAR
      FINANCIAL CORPORATION,

       as
      Servicer

     

    By:                                                                           

    Name:

    Title:

    


    
      
        
        

      

      
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