EXECUTION COPY
EXECUTION
COPY
October
23, 2007
Navistar
Financial Corporation
Navistar
Financial Retail Receivables Corporation
000
X.
Xxxxxxxxxx Xxxx
Suite
1800
Schaumburg,
Illinois 60173
Re: Waiver
Ladies/Gentlemen:
Please
refer to (i) the Note Purchase Agreement, dated as of October 20, 2006 (as
in
effect on the date hereof, the "Note Purchase
Agreement") among Navistar Financial Retail Receivables Corporation
("NFRRC"), as Seller, Navistar Financial Corporation, individually ("NFC")
and
as Servicer, Thunder Bay Funding, LLC, as Conduit Investor, and Royal Bank
of
Canada, as Agent and (ii) the Servicing Agreement, dated as of October 20,
2006,
among NFRRC, Navistar Financial 2006-RBC Owner Trust, as Issuer, NFC, as
Servicer, and The Bank of New York, as Indenture Trustee. The Agent (on behalf
of the Conduit Investor and the other Investors) is the holder of record of
100%
of the Floating Rate Asset Backed Note, No. R-1, issued by the Issuer pursuant
to the Indenture. Capitalized terms used but not defined herein have the
respective meanings ascribed to them (or incorporated by reference in) the
Servicing Agreement.
The
Note
Purchase Agreement or the Servicing Agreement, as applicable, requires, among
other things, the following:
(i) Section
5.02(c) of the Note Purchase Agreement requires that the Servicer deliver to
the
Agent (x) on or before July 31, 2007 (or earlier under certain circumstances
specified therein), (x) a copy of the annual financial statements of the
Servicer for the fiscal years October 31, 2005 and 2006 (each such delivery
requirement, an "Annual Financial
Statement
DeliveryRequirement")
and (y)
(i) on or before July 31, 2007 (or earlier in certain circumstances specified
therein), a copy of the quarterly financial statements of the Servicer for
the
fiscal quarters ended January 31, April 30 and July 31, 2006 and for the fiscal
quarters ended January 31 and April 30, 2007 and (ii) on or before September
15,
2007 (i.e., within 45 days after the end of the July 31, 2007 fiscal quarter),
a
copy of the quarterly financial statements of the Servicer for the fiscal
quarter ended July 31, 2007 (each such delivery requirement in this clause
(y),
a "Quarterly Financial
Statement Delivery Requirement"); and
(ii) Section
3.02(a) of the Servicing Agreement requires that on or before July 31, 2007
(or
earlier under certain circumstances specified therein), the Servicer shall
cause
a firm of independent accountants to deliver to the Agent an independent
Accountant's Report for the
E-409
fiscal
year ended October 31, 2006 (the "Independent Accountant's
Report DeliveryRequirement").
The
Servicer expects to fail to satisfy each Annual Financial Statement Delivery
Requirement, each Quarterly Financial Statement Delivery Requirement and the
Independent Accountant's Report Delivery Requirement.
Additionally,
the Servicer has notified the Agent that it (i) has failed to timely file its
annual reports on Form 10-K for the 2005 Fiscal Year and the 2006 Fiscal Year
with the Securities and Exchange Commission in accordance with the Securities
and Exchange Act of 1934, (ii) has failed to timely file quarterly reports
on
Form 10-Q for all of its fiscal quarters in 2006 with the Securities Exchange
Commission in accordance with the Securities Exchange Act of 1934, and (iii)
has
failed to timely file one or more of its quarterly reports on Form 10-Q for
fiscal quarters in 2007 with the Securities and Exchange Commission in
accordance with the Securities and Exchange Act of 1934 (the occurrence of
any
such failure, a "Periodic Reporting
Failure").
The
Servicer has requested that the Agent waive any potential Servicer Defaults
arising from the matters described above. The Agent xxxxxx agrees to waive
the
occurrence of any Servicer Defaults to the extent described below.
1. The
Agent (in accordance with Section 7.06 of the Servicing Agreement) hereby
directs the Indenture Trustee to waive, and each of Indenture Trustee, the
Conduit Investor and the Agent hereby waives, any Servicer Default arising
solely from the failure to satisfy the Annual Financial Statement Delivery
Requirements; provided that this waiver shall only remain effective until
December 31, 2007 unless the Servicer shall have satisfied each Annual Financial
Statement Delivery Requirement prior to such date.
2. The
Agent (in accordance with Section 7.06 of the Servicing Agreement) hereby
directs the Indenture Trustee to waive, and each of Indenture Trustee, the
Conduit Investor and the Agent hereby waives, any Servicer Default arising
solely from the failure to satisfy the Quarterly Financial Statement Delivery
Requirements; provided that this waiver shall only remain effective until
December 31, 2007 unless the Servicer shall have satisfied each Quarterly
Financial Statement Delivery Requirement prior to such date.
3. The
Agent (in accordance with Section 7.06 of the Servicing Agreement) hereby
directs the Indenture Trustee to waive, and each of Indenture Trustee, the
Conduit Investor and the Agent hereby waives, any Servicer Default or default
arising under Section 5.05 of the Note Purchase Agreement from any Periodic
Reporting Failure; provided that this waiver shall only remain effective until
December 31, 2007 unless the Servicer shall have caused the annual reports
and
quarterly reports giving rise to any Periodic Reporting Failure to be filed
with
the Securities and Exchange Commission prior to such date.
E-410
4. The
Agent (in accordance with Section 7.06 of the Servicing Agreement) hereby
directs the Indenture Trustee to waive, and each of Indenture Trustee and the
Agent hereby waives, any Servicer Default arising solely from the failure of
the
Servicer to satisfy the Independent Accountant's Report Delivery Requirement;
provided that this waiver shall only remain effective until December 31, 2007
unless the Servicer shall have satisfied the Independent Accountant's Report
Delivery Requirement prior to such date.
Each
of
the Indenture Trustee, the Conduit Investor and the Agent hereby expressly
reserves, and nothing herein shall be construed as a waiver of, (i) any Servicer
Default or default under the Note Purchase Agreement specified in paragraphs
I,
2, 3 and 4 above, to the extent that the effectiveness of the waiver of such
Servicer Default or default under the Note Purchase Agreement shall lapse as
described therein and (ii) any rights with respect to any breach constituting
a
Servicer Default, Potential Servicer Default or default under the Note Purchase
Agreement existing or arising for any other reason.
This
waiver may be executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed
to
be an original but all such counterparts shall together constitute one and
the
same waiver. This waiver shall be a contract made under and governed by the
internal laws of the State of New York applicable to contracts made and to
be
performed entirely within such State.
E-411
IN
WITNESS WHEREOF, the undersigned has caused this waiver to be duly executed
and
delivered by their respective duly authorized officers on the day and year
first
above written
ROYAL
BANK OF CANADA, as Agent
By: /s/XXXXX
XXXXXXXXXX
Name: Xxxxx
Xxxxxxxxx
Title: Authorized
Signatory
THUNDER
BAY FUNDING, LLC, as
Conduit Investor
By: Royal
Bank of Canada its
its
attorney-in-fact
By: /s/XXXXX
XXXXXXXXXX
Name: Xxxxx
Xxxxxxxxx
Title: Authorized
Signatory
THE
BANK
OF NEW YORK, not in its individual
capacity
but solely as Indenture Trustee
By: /s/XXXXXXX
XXXXXX
Name: Xxxxxxx Xxxxxx
Title Assistant
Treasurer
E-412
Acknowledged
and Agreed:
NAVISTAR
FINANCIAL CORPORATION
By: /s/XXXX
X.
XXXXXXXX, XX.
Name: Xxxx X.
Xxxxxxxx, Xx.
Title: V.P.,
CFO & Treasurer
NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION
By: /s/XXXX
X.
XXXXXXXX, XX.
Name: Xxxx X.
Xxxxxxxx, Xx.
Title: V.P.,
CFO & Treasurer
NAVISTAR
FINANCIAL 2006-RBC OWNER TRUST
By:
Deutsche Bank Trust Company Delaware, not in i
ts
individual capacity, but solely as Owner Trustee
By: /s/XXXXXXX
XX XXXX
Name: Xxxxxxx
XX Xxxx
Title: Attorney-in-fact
ROYAL
BANK OF CANADA, as Swap Counterparty
By: /s/ XXXXX
XXXXX
Name Xxxxx
Xxxxx
Title: Senior
Vice President
E-413
