AMENDED AND RESTATED PARENT GUARANTEE
EXHIBIT
4.36
AMENDED
AND RESTATED PARENT GUARANTEE
GUARANTEE,
dated as of July 1, 2005, made by NAVISTAR INTERNATIONAL CORPORATION, a Delaware
corporation (the “Guarantor”),
in
favor of JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity,
the “Administrative
Agent”)
for
the lenders (the “Lenders”)
parties to the Amended and Restated Credit Agreement, dated as of July 1,
2005
(as amended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”),
among
Navistar Financial Corporation (the “US
Borrower”)
and
Arrendadora Financiera Navistar, S.A. DE C.V., Organización Auxiliar del
Crédito, Servicios Financieros Navistar, S.A. DE C.V., Sociedad Financiera de
Objeto Limitado and Navistar Comercial, S.A. DE C.V. (collectively, the
“Mexican
Borrowers”;
together with the US Borrower, the “Borrowers”),
the
Lenders, Bank of America, N.A., as syndication agent, The Bank of Nova Scotia,
as documentation agent, and the Administrative Agent.
W
I T N E
S S E T H:
WHEREAS,
pursuant to the Credit Agreement, certain of the Lenders have severally agreed
to make Loans to the Mexican Borrowers upon the terms and subject to the
conditions set forth therein;
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
respective Loans to the Mexican Borrowers under the Credit Agreement that
the
Guarantor shall have executed and delivered this Guarantee to the Administrative
Agent for the ratable benefit of the Lenders; and
WHEREAS,
Guarantor owns, directly or indirectly, all of the capital stock of each
of the
Mexican Borrowers, and it is to the advantage of Guarantor that the Lenders
make
the Loans to the Mexican Borrowers;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective loans to the Mexican Borrowers under the
Credit
Agreement, the Guarantor hereby agrees with the Administrative Agent, for
the
ratable benefit of the Lenders, as follows:
1. Defined
Terms.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein
shall have the meanings given to them in the Credit Agreement.
(b)
As
used
herein, “Mexican
Obligations”
means
the unpaid principal of and interest on (including, without limitation, interest
accruing after the maturity of the Mexican Revolving Loans and interest accruing
after the filing of any petition in bankruptcy (“concurso”),
or
the commencement of any insolvency, reorganization or like proceeding, relating
to any Mexican Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Mexican Revolving Loans and all
other obligations and liabilities of the Mexican Borrowers to the Administrative
Agent and the Lenders, whether direct or indirect, absolute or contingent,
due
or to become due, or now existing or hereafter incurred, which may
E-7
EXHIBIT
4.36 (continued)
arise
under, out of, or in connection with, the Credit Agreement and any other
document made, delivered or given in connection therewith, whether on account
of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all reasonable fees and disbursements
of counsel to the Administrative Agent and the Lenders that are required
to be
paid by the Mexican Borrowers pursuant to the terms of the Credit Agreement)
or
otherwise.
(c)
The
words
“hereof,”“herein” and “hereunder” and words of similar import when used in this
Guarantee shall refer to this Guarantee as a whole and not to any particular
provision of this Guarantee, and section and paragraph references are to
this
Guarantee unless otherwise specified.
(d)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
2. Guarantee.
(a)
The
Guarantor hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for its own benefit and for the ratable benefit of
the
Lenders and their respective successors, indorsees, transferees and assigns,
the
prompt and complete payment and performance by each Mexican Borrower when
due
(whether at the stated maturity, by acceleration or otherwise) of the Mexican
Obligations of such Mexican Borrower.
(b)
The
Guarantor further agrees to pay any and all expenses (including, without
limitation, all fees and disbursements of counsel) which may be paid or incurred
by the Administrative Agent or any Lender in enforcing or collecting, any
or all
of the Mexican Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee. This Guarantee shall
remain in full force and effect until the Mexican Obligations are paid in
full
and the Commitments are terminated, notwithstanding that from time to time
prior
thereto any Mexican Borrower may be free from any Mexican
Obligations.
(c)
The
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Administrative Agent or any Lender on account of its
liability hereunder, it will notify the Administrative Agent or such Lender
in
writing that such payment is made under this Guarantee for such
purpose.
3. No
Subrogation.
Notwithstanding any payment or payments made by the Guarantor hereunder,
or any
set-off or application of funds of the Guarantor by the Administrative Agent
or
any Lender, the Guarantor shall not be entitled to be subrogated to any of
the
rights of the Administrative Agent or any Lender against any Mexican Borrower
or
against any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Mexican Obligations,
nor shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from any Mexican Borrower in respect of payments made by the
Guarantor hereunder, until all amounts owing to the Administrative Agent
and the
Lenders by each Mexican Borrower on account of the Mexican Obligations are
paid
in full and the Commitments are terminated.
E-8
EXHIBIT
4.36 (continued)
4. Amendments,
etc. with respect to the Mexican Obligations; Waiver of Rights.
The
Guarantor shall remain obligated hereunder notwithstanding that, without
any
reservation of rights against the Guarantor, and without notice to or further
assent by the Guarantor, any demand for payment of any of the Mexican
Obligations made by the Administrative Agent or any Lender may be rescinded
by
the Administrative Agent or such Lender, and any of the Mexican Obligations
continued, and the Mexican Obligations, or the liability of any other party
upon
or for any part thereof, or any collateral security or guarantee therefor
(including, without limitation, the guarantee of the US Borrower contained
in
Article XI of the Credit Agreement) or right of offset with respect thereto,
may, from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and the Credit Agreement, any Notes,
any
other Loan Document and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole
or in
part, as the Administrative Agent (or the requisite number of Lenders, as
the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent
or any
Lender for the payment of the Mexican Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Lender
shall have any obligation to protect, secure, perfect or insure any Lien
at any
time held by it as security for the Mexican Obligations or for this Guarantee
or
any property subject thereto. When making any demand hereunder against the
Guarantor, the Administrative Agent or any Lender may, but shall be under
no
obligation to, make a similar demand on any Mexican Borrower or any other
guarantor, and any failure by the Administrative Agent or any Lender to make
any
such demand or to collect any payments from any Borrower or any such other
guarantor or any release of such Borrower or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall
not
impair or affect the rights and remedies, express or implied, or as a matter
of
law, of the Administrative Agent or any Lender against the Guarantor. For
the
purposes hereof “demand” shall include the commencement and continuance of any
legal proceedings.
5. Guarantee
Absolute and Unconditional.
The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Mexican Obligations and notice of or proof of reliance
by
the Administrative Agent or any Lender upon this Guarantee or acceptance
of this
Guarantee; the Mexican Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee; and all dealings between
the
Mexican Borrowers or the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other, shall likewise be conclusively presumed
to
have been had or consummated in reliance upon this Guarantee. The Guarantor
waives diligence, presentment, protest, demand for payment and notice of
default
or nonpayment to or upon the Mexican Borrowers or any other guarantor with
respect to the Mexican Obligations. This Guarantee shall be construed as
a
continuing, absolute and unconditional guarantee of payment without regard
to
(a) the validity, regularity or enforceability of the Credit Agreement or
any
Note or other Loan Document, any of the Mexican Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent
or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be
E-9
EXHIBIT
4.36 (continued)
available
to or be asserted by any Mexican Borrower against the Administrative Agent
or
any Lender, or (c) any other circumstance (other than a defense of payment
or
performance) whatsoever (with or without notice to or knowledge of the Borrowers
or the Guarantor) which constitutes, or might be construed to constitute,
an
equitable or legal discharge of the Borrowers for the Mexican Obligations,
or of
the Guarantor under this Guarantee, in bankruptcy or in any other instance.
When
pursuing its rights and remedies hereunder against the Guarantor, the
Administrative Agent and any Lender may, but shall be under no obligation
to,
pursue such rights and remedies as it may have against any Mexican Borrower
or
any other Person or against any collateral security or guarantee for the
Mexican
Obligations (including, without limitation, the guarantee of the US Borrower
contained in Article XI of the Credit Agreement) or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender
to
pursue such other rights or remedies or to collect any payments from any
Mexican
Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release
of
any Mexican Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of
any
liability hereunder and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent or any Lender against the Guarantor. This Guarantee shall remain in
full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and its successors and assigns, and shall inure
to the
benefit of the Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Mexican
Obligations and the obligations of the Guarantor under this Guarantee shall
have
been satisfied by payment in full and the Commitments shall have been
terminated, notwithstanding that from time to time during the term of the
Credit
Agreement any Mexican Borrower may be free from any Mexican
Obligations.
6. Reinstatement.
This
Guarantee shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Mexican Obligations
is rescinded or must otherwise be restored or returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation
or
reorganization of any Borrower or upon or as a result of the appointment
of a
receiver, intervenor or conservator of, or trustee or similar officer for,
any
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
7. Payments.
The
Guarantor hereby agrees that the Mexican Obligations will be paid to the
Administrative Agent without set-off or counterclaim in U.S. Dollars at the
office of the Administrative Agent located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇.
8. Representations
and Warranties.
In
order to induce the Lenders to make the Loans pursuant to the Credit Agreement,
the Guarantor hereby represents and warrants to the Administrative Agent
and the
Lenders that:
(a)
Organization.
The
Guarantor is duly organized, validly existing and in good standing (to the
extent such requirement shall be applicable) under the laws of the jurisdiction
of its organization.
E-10
EXHIBIT
4.36 (continued)
(b)
Power.
The
Guarantor has the corporate power and authority to execute and deliver, and
to
perform its obligations under, this Guarantee and has taken all necessary
corporate and, if required, stockholder action to authorize its execution,
delivery and performance of this Guarantee.
(c)
Due
Execution.
This
Guarantee has been duly executed and delivered by the Guarantor and constitutes
a legal, valid and binding obligation of the Guarantor enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws affecting creditors’
rights generally and subject to general principles of equity regardless of
whether considered in a proceeding in equity or at law.
(d)
Governmental
Approvals; No Conflicts.
The
execution, delivery, performance, validity or enforceability of this Guarantee,
(i) does not require any consent or approval of, registration or filing with,
or
any other action by, any Governmental Authority, except (A) such as have
been
obtained or made and are in full force and effect and (B) such filings as
may be
required under federal and state securities laws for purposes of disclosure,
(ii) will not violate any applicable law or regulation (including, without
limitation, all laws, rules and regulations promulgated by or relating to
IMSS,
INFONAVIT and SAR) or the charter, by-laws or other organizational documents
of
the Guarantor or any order of any Governmental Authority, (iii) will not
violate
or result in a default under any indenture, agreement or other instrument
binding upon the Guarantor or any of its Subsidiaries or its assets (other
than
with respect to Section 3.12 of the Indenture, dated as of May 31, 2001,
among
the Guarantor, International and BNY Midwest Trust Company, as trustee and
Section 10.5 of the Senior Note Purchase Agreement, dated as of June 15,
2001,
between International and State of Wisconsin Investment Board, in each case
as
amended, supplemented or otherwise modified from time to time), or give rise
to
a right thereunder to require any payment to be made by the Guarantor or
any of
its Subsidiaries, and (iv) will not result in the creation or imposition
of any
Lien on any asset of the Guarantor or any of its Subsidiaries.
The
Guarantor agrees that the foregoing representations and warranties shall
be
deemed to have been made by the Guarantor on the date of each borrowing by
any
Borrower under the Credit Agreement on and as of such date of borrowing as
though made hereunder on and as of such date.
9. Authority
of Administrative Agent.
The
Guarantor acknowledges that the rights and responsibilities of the
Administrative Agent under this Guarantee with respect to any action taken
by
the Administrative Agent or the exercise or non-exercise by the Administrative
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Guarantee shall, as between
the
Administrative Agent and the Lenders, be governed by the Credit Agreement
and by
such other agreements with respect thereto as may exist from time to time
among
them, but, as between the Administrative Agent and the Guarantor, the
Administrative Agent shall be conclusively presumed to be acting as
Administrative Agent for the Lenders with full and valid authority so to
act or
refrain from acting, and the Guarantor shall not be under any obligation,
or
entitlement, to make any inquiry respecting such authority.
E-11
EXHIBIT
4.36 (continued)
10. Notices.
All
notices, requests and demands to or upon the Administrative Agent, any Lender
or
the Guarantor to be effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been
duly
given or made when delivered by hand or if given by mail, when deposited
in the
mails by certified mail, return receipt requested, or if by telex, fax or
similar electronic transfer, when sent and receipt has been confirmed, addressed
as follows:
(a)
if
to the
Administrative Agent or any Lender, at its address or transmission number
for
notices provided in or pursuant to Section 12.01 of the Credit Agreement;
and
(b)
if
to the
Guarantor, at its address or transmission number for notices set forth under
its
signature below.
The
Administrative Agent, each Lender and the Guarantor may change its address
and
transmission numbers for notices by notice in the manner provided in this
Section.
11. Severability.
Any
provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
12. Integration.
This
Guarantee represents the agreement of the Guarantor with respect to the subject
matter hereof and there are no promises or representations by the Administrative
Agent or any Lender relative to the subject matter hereof not reflected herein.
This Guarantee amends and restates in its entirety the Guarantee, dated as
of
December 8, 2000, made by the Guarantor in favor of JPMorgan Chase Bank,
N.A.
(fka The Chase Manhattan Bank), as administrative agent for the lenders under
the Existing Credit Agreement and supersedes and replaces the terms thereof
in
their entirety.
13. Amendments
in Writing; No Waiver; Cumulative Remedies.
(a)
None
of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantor
and the Required Lenders, provided
that any
provision of this Guarantee may be waived by the Required Lenders in a letter
or
agreement executed by the Required Lenders or by telex or facsimile transmission
from the Administrative Agent.
(b)
Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to paragraph 13(a) hereof), delay, indulgence, omission
or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of
the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single
or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver by the Administrative
E-12
EXHIBIT
4.36 (continued)
Agent
or
any Lender of any right or remedy hereunder on any one occasion shall not
be
construed as a bar to any right or remedy which the Administrative Agent
or such
Lender would otherwise have on any future occasion.
(c)
The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
14. Section
Headings.
The
section headings used in this Guarantee are for convenience of reference
only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
15. Successors
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of the Administrative Agent and the Lenders and
their
successors and assigns. The Guarantor may not transfer any of its rights
or
obligations under this Guarantee without the written consent of each
Lender.
16. Governing
Law.
This
Guarantee shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
17. Submission
To Jurisdiction; Waivers.
Each
party hereto hereby irrevocably and unconditionally:
(a)
submits
for itself and its property in any legal action or proceeding relating to
this
Guarantee and any other loan documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York,
the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b)
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c)
agrees
that service of process in any such action or proceeding may be effected
by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such party at its address set
forth
under its signature below or at such other address of which the other parties
hereto shall have been notified pursuant thereto;
(d)
agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction; and
(e)
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this subsection
any
special, exemplary, punitive or consequential damages.
E-13
EXHIBIT
4.36 (continued)
18. WAIVERS
OF JURY TRIAL.
THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
IN
WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed
and delivered by its duly authorized officer as of the day and year first
above
written.
NAVISTAR
INTERNATIONAL CORPORATION
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
Address
for Notices:
Navistar
International Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Telex:
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
Attention:
Vice
President and Treasurer
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
By
/s/
▇▇▇▇▇ ▇. Sharf__________________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President.
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