AMENDMENT AND WAIVER TO AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT
EXECUTION
COPY
AMENDMENT
AND WAIVER TO
AMENDED
AND RESTATED
THIS
AMENDMENT AND WAIVER TO AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT
(this "Amendment") dated as
of October 23, 2007, 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 LLC (f/k/a Liberty Street Funding Corp. "LibertyStreet"),
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 ofAmerica"),
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, the fiscal quarters ending January 31, April
30
and July 31 of 2006, the fiscal year ending October 2006, and the fiscal
quarters ending January 31, April 30 and July 31, 2007 on a timely basis (such
failure, the "Reporting Default").
Each of the parties hereto hereby agrees to waive the occurrence of any Default
to the extent described below.
D. 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 that the Agreement is hereby amended as follows:
(i) Section
7A.01(c) of the Agreement is hereby amended and restated 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
years 2005 and 2006 and for the fiscal quarters ending January 31, April 30
and
July 31 of 2006 and for the fiscal quarters ending January 31, April 30 and
July
31 of 2007 until the earlier to occur of December 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, and the Third Waiver and Consent,
dated as of November 20, 2006, 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) Section
5.01(m) of the Agreement is hereby amended and restated in its entirety to
read
as follows:
(m)
Effective as of noon on October 25, 2007 and on each Incremental Funding Date
thereafter, the Subordinated Percentage shall equal or exceed
20.0%.
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 5.02(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, or October 31, 2006, of any financial statements
of NFC or any of its affiliates for any period ending on or before the
expiration of the waiver contemplated herein, 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 and to be due April 15, 2007 pursuant to, Section 3.06(a) and (b) of the
Pooling and Servicing Agreement (as defined in the Agreement) by April 15,
2006
and April 15, 2007, respectively, provided that each such report shall be
delivered on or before December 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
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in
the
immediately preceding sentence on or before the earlier of (i) five (5) Business
Days after the filing thereof with the SEC and (ii) December 31,
2007.
3. 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.
4. Effect
of Amendment.
All provisions of the Agreement, as amended 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 amended 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.
5. Conditions
Precedent.
The effectiveness of this Amendment is subject to the receipt of each fee
specified in the fee letter, dated as of the date hereof.
6. 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.
7. 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.
8. 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 page]
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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.
CFO & Treasurer
NAVISTAR
FINANCIAL CORPORATION, as Servicer
By: /s/
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
▇▇.
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: V.P.
CFO & Treasurer
KITTY
HAWK FUNDING CORPORATION,
as
a
Conduit Purchaser for the KHFC Purchaser Group
By: /s/
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President
BANK
OF
AMERICA, NATIONAL ASSOCIATION, as Administrative Agent
By: /s/
▇▇▇▇▇▇
▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Title: Principle
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
as
a
Committed Purchaser and Managing Agent for the KHFC Purchaser Group
By: /s/▇▇▇▇▇▇
▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Title: Principle
Purchaser
Percentage: 50%
Commitment:
$400,0000,000
▇-▇▇▇
▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, as a Committed
Purchaser
Managing
Agent
for the Liberty Street Purchaser Group
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Director
Purchaser
Percentage: 50%
Commitment:
$400,0000,000
LIBERTY
STREET FUNDING LLC,a
Conduit
Purchaser
for the Liberty Street Purchaser Group
By: /s/
▇▇▇▇
▇.
▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Vice
President
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