WAIVER NO.2 TO RECEIVABLES SALE AGREEMENT
WAIVER
NO.2
THIS
WAIVER NO. 2
(this "Waiver”),
dated as of January 31, 2007, is among Navistar Financial
Corporation, a Delaware corporation ("Navistar"),
as Transferor, and Truck Retail Accounts Corporation,
a
Delaware corporation, as Transferee and pertains to that certain RECEIVABLES
SALE AGREEMENT dated as of April 8, 2004 by and among the parties hereto (as
heretofore amended or modified from time to time, the "Agreement”).
Unless defined elsewhere herein, capitalized terms used
in
this Waiver have the meanings assigned to such terms in the
Agreement.
PRELIMINARY
STATEMENTS
The
Transferor has requested that the Transferee agree to waive certain provisions
of the Agreement; and
The
Transferee is willing to agree to the requested waivers on the terms hereinafter
set forth.
NOW,
THEREFORE,
in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1. Waiver.
(a) The
requirement in Section 4.1(a)(i) of
the Agreement for delivery of annual financial statements of Parent and
Transferor for fiscal years 2005 and 2006, the requirement in Section 4.1(a)(ii)
of the Agreement for delivery of quarterly financial statements of Parent and
Transferor for the first, second and third quarters of fiscal years 2006 and
2007, and the requirements in Sections 4.1(a)(iii) for the delivery of certain
compliance certificates related to the aforementioned financial statements,
are
each hereby waived until the earlier of (i) October 31, 2007 and (ii) the date
on which Parent and Transferor shall have timely filed reports on Form 10-K
or
10-Q after the date hereof with the Securities and Exchange Commission pursuant
to Sections 13 and 15 of the Securities Exchange Act of 1934, as amended (the
"Exchange
Act").
(b) Any
condition or required representation or warranty that has not been satisfied
or
made or deemed made, as a result of the breach of any representation or warranty
in Section 2.1(f) of the Agreement as a result of or arising out of any
restatement, in connection with the audit conducted for the fiscal year ended
October 31, 2005 or October 31, 2006, of any financial statements of Transferor
or any of its affiliates for any period ending on or before October 31, 2007,
or
any reports, financial statements, certificates or other information containing
similar information with respect to such periods, is hereby
waived.
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Section
2. Agreement by
Transferor. Notwithstanding anything to the contrary in the Agreement, to
induce the parties to enter into this Waiver, until the expiration of the waiver
provided in Section 1(a), Transferor agrees to deliver to the
Transferee:
(a) As
soon
as available after the end of each of the fiscal years of Transferor ended
October 31, 2005 and October 31, 2006, a copy of the annual report for such
year
for the Parent and its Subsidiaries, including therein (i) a consolidated
balance sheet of the Parent and its Subsidiaries as of the end of such fiscal
year and (ii) a consolidated statement of income and a consolidated statement
of
cash flows of the Parent and its Subsidiaries for such fiscal year, in each
case
prepared in accordance with Rule 3-10 of Regulation S-X, consistent with the
Parent's past practice, on the basis of management's good faith calculations
and
fairly presenting in all material respects the consolidated financial condition
of the Parent and its Subsidiaries as at such date and the consolidated results
of operations of the Parent and its Subsidiaries for the period ended on such
date; provided
that, in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the Parent shall also
provide a reconciliation of its financial statements to GAAP.
(b) As
soon
as available after the end of the fiscal quarters ended January 31, 2006, April
30, 2006, July 31, 2006, January 31, 2007, April 30, 2007 and July 31, 2007
(i)
a consolidated balance sheet of the Parent and its Subsidiaries as of the end
of
such quarter, (ii) a consolidated statement of income and a consolidated
statement of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the end
of
such fiscal quarter, and (iii) a consolidated statement of income and a
consolidated statement of cash flows of the Parent and its Subsidiaries for
the
period commencing at the end of the previous fiscal year and ending with the
end
of such quarter, all prepared in accordance with Rule 3-10 of Regulation S-X,
consistent with the Parent's past practice, on the basis of management's good
faith calculations and fairly presenting in all material respects, subject
to
year end audit adjustments and the absence of footnotes, the consolidated
financial condition of the Parent and its Subsidiaries as at such dates and
the
consolidated results of operations of the Parent and its Subsidiaries for the
periods ended on such dates, setting forth in each case in comparative form
the
corresponding figures for the corresponding date or period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments and the absence of footnotes) by a Financial Officer
of the Parent as having been prepared in accordance with GAAP; provided that, in
the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Parent shall also provide a
reconciliation of such financial statements to GAAP.
(c) As
soon
as available, and in any event within 60 days after the end of each fiscal
quarter (other than the last fiscal quarter of a fiscal year) or 90 days after
the end of the last fiscal quarter of a fiscal year of Navistar, ended on or
after October 31, 2006, management financial reports of Navistar setting forth
(i) a preliminary consolidated balance sheet and consolidated statements of
income in a management format , (ii) serviced portfolio information (iii)
funding availability under its contractual arrangements with Truck Retail
Installment Paper Corp. and under the Transferor Credit Agreement and (iv)
calculations demonstrating compliance with Section 8.01 of the Transferor Credit
Agreement, in each case prepared in a manner materially consistent with the
Transferor's past practices (unless otherwise required to
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conform
with the results of the audit or changes in GAAP) and, to the extent relevant,
on the basis of management's good faith efforts, in such form and detail
reasonably satisfactory to the Agent; provided, however,
that such reporting shall not be required so long as the Transferor has filed
all reports with the Securities and Exchange Commission required pursuant to
Section 13 of the Exchange Act. The parties hereto acknowledge that such
management financial reports are not final and are subject to change in
connection with either the preparation, for the corresponding fiscal quarter,
of
a report on Form 10-Q or 10-K, as a result of or arising out of any restatement,
in connection with the audit conducted for the fiscal year ended October 31,
2005 or October 31, 2006, as the case may be.
(d) As
soon as available, and in any event within 30 days after the end of each month,
commencing with the month of October 2006, monthly management financial reports
of the Parent in respect of the sales and income by segment and cash balances,
Indebtedness, capital expenditures and depreciation and amortization of the
Parent and its consolidated Subsidiaries prepared in a manner consistent with
the Parent's past practices and on the basis of management's good faith
calculations, in such form and detail reasonably satisfactory to the Agent;
provided,however,
that such
reporting shall not be required so long as the Parent has filed all reports
with
the Securities and Exchange Commission required pursuant to Section 13 of the
Exchange Act.
Section
3. Representations
and
Warranties. In order to induce the parties to enter into this Waiver, the
Transferor represents and warrants to the Transferee that (a) after giving
affect to this Waiver, each of Transferor's representations and warranties
contained in Article II of the Agreement is true and correct as of the date
hereof, (b) the execution and delivery by the Transferor of this Waiver, and
the
performance of its obligations hereunder, are within its corporate or limited
partnership, as applicable, powers and authority and have been duly authorized
by all necessary corporate or limited partnership, as applicable, action on
its
part, and (c) this Waiver has been duly executed and delivered by the Transferor
and constitutes the legal, valid and binding obligation of such Seller Party
enforceable against the Transferor in accordance with its terms, except as
such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and
by
general principles of equity (regardless of whether enforcement is sought in
a
proceeding in equity or at law).
Section
4. Condition Precedent.
This Waiver shall become effective as of the date first above written upon
receipt by the Agent of counterparts hereof duly executed by each of the parties
hereto.
Section
5. Miscellaneous.
(a) THIS
WAIVER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(c) Except
as expressly modified hereby, the Agreement remains unaltered and in full force
and effect and is hereby ratified and confirmed. This Waiver shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns (including any trustee in
bankruptcy).
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(c) This
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one
and
the same agreement.
[signatures
on next
pages]
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IN
WITNESS WHEREOF, the
parties hereto have caused this Waiver to be executed
and delivered by their duly authorized officers as of the date
hereof.
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NAVISTAR
FINANCIAL CORPORATION
By:
/s/ XXXX X. XXXXXXXX,
XX.
Name:
Xxxx X. Xxxxxxxx, Xx.
Title:
V.P. CFO & Treasurer
TRUCK
RETAIL ACCOUNTS CORPORATION
By:
/s/ XXXX X. XXXXXXXX,
XX.
Name:
Xxxx X. Xxxxxxxx, Xx.
Title:
V.P. CFO & Treasurer
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[Signature
Page to Waiver No. to the
Receivables Sale Agreement]
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