AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT
Execution
Copy
AMENDMENT,
WAIVER AND EXTENSION TO
AMENDED
AND RESTATED
THIS
AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE
AGREEMENT (this "Amendment") dated
as
of May 26, 2006, is entered into among Navistar Financial Securities Corporation
(the "Seller"),
Navistar Financial Corporation ("Servicer"),
Kitty Hawk Funding
Corporation, ("KHFC"),
as a Conduit
Purchaser, Liberty Street Funding Corp. ("Liberty Street"),
as a Conduit Purchaser, the Bank of Nova Scotia ("BNS"),
as a Managing
Agent and a Committed Purchaser, and Bank of America, National Association
("Bank of America"),
as a Managing Agent, the Administrative Agent and a Committed
Purchaser.
RECITALS
A. The
Seller, the Servicer, KHFC, Liberty Street, BNS and Bank of America are parties
to that certain Amended and Restated Certificate Purchase Agreement, dated
as of
December 27, 2004 (as amended, supplemented or otherwise modified through
the
date hereof, the "Agreement"),
B. Such
parties desire to amend the Agreement as hereafter set forth.
C. Prior
to
giving effect to the amendment to Section 7A.01(c) of the Agreement set forth
in
Section 1
below, Section 7A.01 of the Agreement required that NFC furnish to the
Administrative Agent as soon as available and in any event within 45 days
after
the end of each of the first three fiscal quarters of any fiscal year and
120
days after the end of the last fiscal quarter of any fiscal year, copies
of the
interim or annual, as applicable, financial statements of NFC, prepared in
conformity with generally accepted accounting principles consistently applied.
NFC has requested a waiver of any Default (defined below) arising from its
failure to deliver copies of the annual and interim financial statements
of the
fiscal year ending October 2005 and the fiscal quarters ending January 31,
April
30 and July 31 of 2006 on a timely basis (such failure, the "Reporting
Default").
The parties hereto
hereby agrees to waive the occurrence of any Default to the extent described
below.
D. Such
parties desire to modify the Purchase Expiration Date under (and as defined
in)
the Agreement in accordance with Section 2.04 of the Agreement.
E. NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Amendments
to
Agreement. By their signatures hereto, each of the parties hereto hereby
agrees to the following amendments to the Agreement:
(i ) The
Agreement is hereby amended by amending and restating Section 7A.0 1(c) of
the
Agreement in its entirety to read as follows:
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(c)
(1)
as soon as available and in any event within (i) 45 days after the end of
each
of the first three fiscal quarters of any fiscal year and (ii) 120 days after
the end of the last fiscal quarter of any fiscal year, copies of the interim
or
annual, as applicable, financial statements of NFC, prepared in conformity
with
generally accepted accounting principles consistently applied; provided,
however
that NFC shall not be required to deliver its financial statements for fiscal
year 2005 and for the fiscal quarters ending January 31, April 30 and July
31 of
2006 until the earlier to occur of January 31, 2007 and five (5) Business
Days
after the filing thereof with the SEC and (2) as soon as available and in
any
event within 30 days after the end of each month, the monthly management
financial reports required to be delivered pursuant to the Amended and Restated
Credit Agreement dated as of July 1, 2005, among the Servicer, Bank of America,
and BNS, among others; provided, however, that such reporting shall not be
required so long as the Servicer's
parent has filed
all reports with the Securities and Exchange Commission required pursuant
to
Section 13 of the Exchange Act.
(ii
) The
definition of "Maximum Funded Amount"
contained in
Section 1.01 of the Agreement is hereby amended by replacing the amount
"$400,000,000" contained therein with the amount "$600,000,000";
and
(iii) the
Purchaser Percentage and Commitment for the Committed Purchasers are amended
and
restated to read as set forth on the signature page to this
Amendment.
2. Waiver.
By their
signatures hereto, each of the parties hereto waives any condition or covenant
that has not been satisfied, the breach of any representation or warranty
made
or deemed made, and any occurrence of an Early Amortization Event,
event of default, event of termination or similar event (in each case, with
respect to all of the foregoing, whether such event is matured or unmatured
and
collectively referred to herein as a "Default"), under
the
Agreement, solely to the extent such Default was caused directly by or resulted
directly from (a) the Reporting Default, (b) a breach of any representation
or
warranty in Section 5.01(1) or 5.020(j) of the Agreement resulting from or
arising out of any restatement, in connection with the audit conducted for
the
fiscal year ended October 2005, of any financial statements of NFC or any
of its
affiliates for any period ending on or before July 31, 2005, or any reports,
financial statements, certificates or other information containing similar
or
derived information therefrom with respect to such periods or (c) the failure
of
NFC, as Servicer, to deliver the reports contemplated by, and due on or about
April 15, 2006 pursuant to, Section 3.06(a) and (b) of the Pooling and Servicing
Agreement (as defined in the Agreement) by April 15, 2006; provided that
such
reports shall be delivered on or before January 31, 2007. Each party (other
than
NFC and the Seller) hereto hereby expressly reserves, and nothing herein
shall
be construed as a waiver of NFC's failure to comply with Section 7A.01(c),
as
amended hereby, any Event of Default (as defined in the Pooling and Servicing
Agreement) occurring as a result of the failure referred to in clause (c)
without the consent of, or at the direction of, KHFC, Liberty Street, BNS
or
Bank of America, or NFC's failure to deliver the reports referred to in the
immediately
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preceding
sentence on or before the earlier of (i ) five (5) Business Days after the
filing thereof with the SEC and (ii) January 31, 2007.
3. Extension.
The
Purchase Expiration Date is extended to May 24, 2007, or, if earlier, the
date
specified in clause (ii) of the definition of Purchase Expiration Date in
the
Agreement as originally executed.
4. Representations
and
Warranties. The Seller hereby represents and warrants to KHFC, Liberty
Street, BNS and Bank of America that, after giving effect to this Amendment,
no
Early Amortization Event has occurred and is now continuing, and NFC hereby
represents and warrants that, after giving effect to this Amendment, no Early
Amortization Event or Servicer Termination
Event has occurred and is now continuing.
5. Effect
of Amendment.
All provisions of the Agreement, as extended by this Amendment, remain in
full
force and effect. After this Amendment becomes effective, all references
in the
Agreement to "this Agreement", "hereof", "herein" or words of similar effect
referring to the Agreement in the Agreement or in any other document relating
to
the Seller's securitization program shall be deemed to be references to the
Agreement as extended by this Amendment. This Amendment shall not be deemed
to
expressly or impliedly waive, amend or supplement any provision of the Agreement
other than as set forth herein.
6. Conditions
Precedent.
The effectiveness of this Amendment is subject to the satisfaction of the
following conditions:
(i
) each
fee
specified in the Fee Letter as being due on or prior to the date hereof shall
have been paid; and
(ii) the
Seller shall have furnished to the Administrative Agent and the Managing
Agent
bring-down opinions to each of the opinions delivered on or about December
27,
2004, and such other information, certificates and documents as the
Administrative Agent and the Managing Agents may reasonably
requests.
7. Counterparts.
This
Amendment may be executed in any number of counterparts and by different
parties
on separate counterparts, and each counterpart shall be deemed to be an
original, and all such counterparts shall together constitute but one and
the
same instrument.
8. Governing
Law. This
Amendment shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to any otherwise applicable
principles of conflicts of law.
9. Section
Headings. The
various headings of this Amendment are inserted for convenience only and
shall
not affect the meaning or interpretation of this Amendment or the Agreement
or
any provision hereof or thereof.
[signatures
on next
pages]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their
respective officers thereunto duly authorized, as of the date first above
written.
NAVISTAR
FINANCIAL SECURITIES CORPORATION,
as
Seller
By:
/s/ ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
▇▇.
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title:
V. P. Controller
NAVISTAR
FINANCIAL CORPORATION,
as
Service
By:
/s/ ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
▇▇.
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: V.
P. Controller
KITTY
HAWK FUNDING CORPORATION,
as
a
Conduit Purchaser for the KHFC Purchaser Group
By:
/s/ ▇▇▇▇
▇.
▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
By:
/s/ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Title:
Principal
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
as
a
Committed Purchaser and Managing Agent for the KHFC Purchaser Group
By:
/s/ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Title:
Principal
Purchase
Percentage: 33 1/3%
Commitment: $200,000,000
▇-▇▇
▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as
a
Committed Purchaser and Managing Agent for the Liberty Street Purchase
Group
By:
/s/ ▇▇▇▇▇▇
LAST
Name: ▇▇▇▇▇▇
Last
Title: Managing
Director
Purchaser
Percentage: 66 2/3%
Commitment: $400,000,000
LIBERTY
STREET FUNDING CORP.
As
a
conduit Purchaser for the Liberty Street Purchaser Group
By: /s/ ▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇
Title: Vice
President
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