Second Supplemental to 4.75% Subordinated Exchangeable Notes Indenture
Exhibit
4.40
Second
Supplemental
to 4.75% Subordinated Exchangeable Notes Indenture
This
Second Supplement to Indenture (the “Second Supplement”) is dated as of March
24, 2006 by and among Navistar International Corporation, a Delaware corporation
(the “Company”), and BNY Midwest Trust Company, an Illinois banking corporation
(the “Trustee”), with respect to the Company’s 4.75% Subordinated Exchangeable
Notes due 2009 (the “Notes”). Capitalized terms used but not otherwise defined
in this Second Supplement shall have the meanings ascribed to such terms
in the
Indenture (hereinafter defined).
WHEREAS,
the Company, Navistar Financial Corporation and the Trustee entered into
that
certain Indenture, dated as of March 25, 2002, and as amended and supplemented
by the First Supplement to Indenture, dated as of June 11, 2004, by and among
the Company, Navistar Financial Corporation and the Trustee (as may be further
amended and supplemented from time to time in accordance with its terms,
the
“Indenture”);
WHEREAS,
the Company desires to amend and waive certain provisions of the Indenture,
as
set forth in Article I hereof;
WHEREAS,
the Holders of at least a majority in aggregate principal amount of Notes
outstanding (excluding any Notes held by any affiliate of the Company) have
consented to the amendments and waivers effected by this Second
Supplement;
WHEREAS,
pursuant to Section 9.2 of the Indenture, the Trustee is authorized to execute
and deliver this Second Supplement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby agree, for the equal and proportionate benefit of all Holders
of
the Securities, as follows:
ARTICLE
I
INDENTURE
AMENDMENTS AND WAIVERS
Section
1.01 Amendments
to Articles Three, Four, Five and Six.
Upon
written notification to the Trustee by the Company that it has accepted
to
purchase and payment (the “Acceptance Date”) pursuant to the offer to purchase
all of the Notes validly tendered on or before midnight, New York City
time, on
March 23, 2006 pursuant to the Offer to Purchase and Consent Solicitation
Statement, dated as of February 24, 2006, and any amendments, modifications
or
supplements there to, the automatically (without further act by any person)
with
respect to the Notes:
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Exhibit
4.40 (continued)
(a) Section
4.2 (Rule 144A Information; Periodic Reports to the Trustee) and Section
4.3
(Compliance Certificate) of the Indenture are deleted in their entirety and
replaced with the following: “The Company shall comply with Section 314 of the
TIA.”
(b) Section
4.6 (Repurchase upon Fundamental Change) of the Indenture is deleted in its
entirety.
(c) Each
of
the following subsections of Section 6.1 (Events of Default) of the Indenture
are deleted in their entirety: Sections 6.1(c), (d), (e) and (h).
(d) failure
to comply with the terms of any of the foregoing sections of the Indenture
shall
no longer constitute a Default or an Event of Default under the Indenture
and
shall no longer have any other consequence under the Indenture;
(e) the
occurrence of the events described in Sections 6.1(c), (d), (e) and (h) shall
no
longer constitute Events of Default; and
(f) all
definitions set forth in Section 1.1 of the Indenture that relate to defined
terms used solely in covenants or sections deleted hereby are deleted in
their
entirety.
Section
1.02 Waivers.
The
Trustee acknowledges that Holders representing at least a majority in aggregate
principal amount of the outstanding Notes have: (i) waived any and all Defaults
or Events of Default that have arisen under the Indenture at any time prior
to
the effective time of this Section 1.02, including, but not limited to, any
Default or Event of Default that may exist as a result of: (a) a failure
by the
Company to comply Section 4.2 of the Indenture at any time prior to the
effective time of this Section 1.02; (b) a failure by the Company to provide
the
Trustee with any notice of Default or Event of Default required by Section
4.3
of the Indenture; and (c) an acceleration of any Indebtedness or other event
constituting a Default or Event of Default under Section 6.1(h) of the
Indenture; (ii) agreed to rescind any notice of Default provided to the Company
at any time prior to the effective time of this Section 1.02; and (iii) agreed
to rescind any notice of acceleration of the Notes that has been received
by the
Company at any time prior to the effective time of this Section 1.02. Based
on
the foregoing, the Trustee hereby revokes any and all notices of Default
and/or
acceleration delivered by the Trustee to the Company prior to the effective
time
of this Section 1.02. This Section 1.02 shall be effective as of the Acceptance
Date.
E-2
Exhibit
4.40 (continued)
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.01 Instruments
to be Read Together.
This
Second Supplement is an indenture supplement to and in implementation of
the
Indenture, and said Indenture and this Second Supplement shall henceforth
be
read together.
Section
2.02 Confirmation.
The
Indenture, as amended and supplemented by this Second Supplement, is in all
respects confirmed and preserved.
Section
2.03 Counterparts.
This
Second Supplement may be executed in any number of counterparts, each of
which,
when so executed, shall be deemed to be an original, but all of which shall
together constitute one and the same instrument.
Section
2.04 Effectiveness.
This
Second Supplement shall become effective immediately upon its execution in
accordance with the provisions of Article IX of the Indenture.
Section
2.05 GOVERNING
LAW.
THIS
SECOND SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE
INTERNAL LAWS OF THE STATE OF NEW YORK. THE COMPANY AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK,
IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST
SUPPLEMENT.
Section
2.06 Disclaimer
of Trustee’s Responsibility.
In
executing this Second Supplement, the Trustee shall be entitled to all the
privileged and immunities afforded to the Trustee under the terms and conditions
of the Indenture.
Section
2.07 Trust
Indenture Act Controls.
If any
provision of this Second Supplement limits, qualifies or conflicts with another
provision that is required to be included in the Second Supplement or the
Indenture by the Trust Indenture Act, the required provision shall
control.
* * * * *
E-3
Exhibit
4.40 (continued)
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplement to
Indenture to be duly executed and attested, all as of the day and year first
written above.
NAVISTAR
INTERNATIONAL CORPORATION
By:
__/s/
▇▇▇▇▇ ▇. Endsley_____________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice
President and Treasurer
BNY
MIDWEST TRUST COMPANY
By:
___/s/
▇.
▇. ▇▇▇▇▇▇▇ __________
Name:
▇.
▇. ▇▇▇▇▇▇▇
Title:
Vice
President
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