WAIVER
Exhibit
99.1
WAIVER
WAIVER,
dated as of January 17, 2006 (this “Waiver”),
to
the Amended and Restated Credit Agreement, dated as of July 1, 2005
(as
heretofore amended, supplemented or otherwise modified,
the
“Credit
Agreement”),
among
NAVISTAR
FINANCIAL CORPORATION,
a
Delaware corporation, ARRENDADORA
FINANCIERA NAVISTAR, S.A. DE C.V.,
ORGANIZACIÓN AUXILIAR DEL CRÉDITO, a Mexican corporation, SERVICIOS
FINANCIEROS NAVISTAR, S.A. DE C.V., SOCIEDAD FINANCIERA DE OBJETO
LIMITADO,
a
Mexican corporation, and NAVISTAR
COMERCIAL, S.A. DE C.V.,
a
Mexican corporation (each, a “Borrower”
and
collectively, the “Borrowers”),
the
several lenders from time to time parties thereto (the “Lenders”),
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in
such
capacity, the “Administrative
Agent”),
BANK
OF AMERICA, N.A., as syndication agent (in such capacity, the “Syndication
Agent”),
and
THE BANK OF NOVA SCOTIA, as documentation agent (in such capacity, the
“Documentation
Agent”).
W I T N E S S E T H
:
WHEREAS,
the Borrowers, the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Lenders are parties to the Credit
Agreement;
WHEREAS,
the Borrowers have requested that the Administrative Agent and the Required
Lenders agree to waive compliance with certain provisions of the Credit
Agreement; and
WHEREAS,
the Administrative Agent has obtained the consent of the Required Lenders
to
execute this Waiver, but only upon the terms and conditions set forth
herein;
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of
which are
hereby acknowledged, and in consideration of the premises contained herein,
the
parties hereto agree as follows:
1. Defined
Terms.
Unless
otherwise defined herein, capitalized terms which are defined in the
Credit
Agreement are used herein as defined therein.
2. Waiver.
The
Lenders hereby agree to waive, effective for the period from the date
hereof to
and including May 31,
2006,
any Default or Event of Default under
(a) Clause
(e) Article IX of the Credit Agreement that would result solely from
the
Parent’s or the Borrowers’ failure to deliver the Form 10-K and financial
statements for the fiscal year ended October 31, 2005, and other information
and
documents required under Sections 7.01(a), (c), (d) and (f) of the Credit
Agreement to be delivered in connection with such Form 10-K or such financial
statements.
(b) Clause
(e) Article IX of the Credit Agreement that would result solely from
the
Parent’s or the Borrowers’ failure to deliver the Form 10-Q and financial
statements for the fiscal quarter ended January 31, 2006, and other information
and documents required under Sections 7.01(b) and (d) of the Credit Agreement
to
be delivered in connection with such Form 10-Q or such financial
statements.
(c) Clause
(r) of Article IX of the Credit Agreement that would result from any
event or
circumstance which permits one or more Persons other than the Parent
or
International, as the case may be, to cause any Indebtedness for Borrowed
Money
of either the Parent or International which exceeds $50,000,000 in aggregate
principal or face amount to become due prior to its stated maturity,
solely to
the extent that (i) such noncompliance arises from the Parent’s or any of its
subsidiaries’ failure to file or deliver its Form 10-K or its Form 10-Q and
financial statements for the fiscal year ended October 31, 2005 and the
fiscal
quarter ended January 31, 2006, or other related information or documents
as
required under the agreements governing such Indebtedness and (ii) such
Persons
shall not have the right to make such Indebtedness become due prior to
its
stated maturity or exercise any other remedy with respect to such
Indebtedness.
3. Conditions
to Effectiveness of this Waiver.
This
Waiver shall become effective upon receipt by the Administrative Agent
of
counterparts of this Waiver duly executed by each of the Borrowers and
the
Administrative Agent.
4. Representations
and Warranties.
On and
as of the date hereof and after giving effect to this Waiver, each Borrower
hereby confirms, reaffirms and restates the representations and warranties
set
forth in Article V of the Credit Agreement mutatis mutandis,
except
to the extent that such representations and warranties expressly relate
to a
specific earlier date, in which case each Borrower hereby confirms, reaffirms
and restates such representations and warranties as of such earlier date,
and
that, except to the extent waived hereby, no Default or Event of Default
has
occurred and is continuing.
5. Continuing
Effect; No Other Waiver.
Except
as expressly set forth in this Waiver, all of the terms and provisions
of the
Credit Agreement are and shall remain in full force and effect and each
Borrower
shall continue to be bound by all of such terms and provisions. The waiver
provided for herein is limited to the specific sections of the Credit
Agreement
specified herein and shall not constitute a waiver of, or an indication
of the
Administrative Agent’s or the Lenders’ willingness to amend or waive, any other
provisions of the Credit Agreement or the same section for any other
date or
purpose.
6. Expenses.
The
Borrowers agree to pay and reimburse the Administrative Agent for all
its
reasonable out-of-pocket costs and expenses incurred in connection with
the
preparation and delivery of this Waiver, including, without limitation,
the
reasonable fees and disbursements of counsel to the Administrative
Agent.
7. Counterparts.
This
Waiver may be executed by one or more of the parties to this Waiver on
any
number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the
same
instrument. A set of the copies of this Waiver signed by the parties
hereto
shall be delivered to the Borrowers and the Administrative Agent. The
execution
and delivery of this Waiver by the Administrative Agent with the consent
of any
Lender shall be binding upon such Lender’s successors and assigns (including
transferees of its commitments and Loans in whole or in part prior to
effectiveness hereof) and binding in respect of all of its commitments
and
Loans, including any acquired subsequent to its execution and delivery
hereof
and prior to the effectiveness hereof.
8. GOVERNING
LAW.
THIS
WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS WAIVER
SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE
STATE OF NEW YORK.
IN
WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed
and
delivered by their respective duly authorized officers as of the date
first
above written.
NAVISTAR
FINANCIAL CORPORATION
By:
/s/ XXXX
X. XXXXXX
Name: Xxxx
X.
Xxxxxx
Title: Vice
President and Treasurer
ARRENDADORA
FINANCIERA NAVISTAR, S.A. DE C.V.,
ORGANIZACIÓN AUXILIAR DEL CRÉDITO
By:
/s/ XXXX
X. XXXXXX
Name:
Xxxx
X.
Xxxxxx
Title:
Managing
Director
SERVICIOS
FINANCIEROS NAVISTAR, S.A. DE C.V., SOCIEDAD FINANCIERA DE OBJETO
LIMITADO
By:
/s/ XXXX
X. XXXXXX
Name:
Xxxx
X.
Xxxxxx
Title:
Managing
Director
NAVISTAR
COMERCIAL, S.A. DE C.V.
By:
/s/ XXXX
X. XXXXXX
Name:
Xxxx
X.
Xxxxxx
Title:
Managing
Director
JPMORGAN
CHASE BANK, N.A. as Administrative Agent
By:
/s/ XXXXXX
X. XXXXXX
Name:
Xxxxxx X. Xxxxxx
Title:
Vice
President
