EXECUTION COPY
EXECUTION
COPY
Navistar
Financial Corporation
Navistar
Financial Retail Receivables Corporation
000
X
Xxxxxxxxxx Xxxx
Suite
1800
Schaumburg,
Illinois 60173
Re:
Waiver
Ladies
and Gentleman:
Please
refer to (i) the Note Purchase Agreement, dated as of February 16, 2007 (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, Falcon Asset Securitization Company, LLC, and Park Avenue
Receivables Company, LLC, as Assignee, collectively, as the Conduit Investor,
and XX Xxxxxx Xxxxx Bank, National Association, as Agent for the Investors
and
(ii) the Servicing Agreement, dated as of February 16, 2007, among NFRRC,
Navistar Financial 2007-JPM 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 October 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)
on or before October 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, April 30, and July 31, 2007 (each such delivery
requirement in this clause (y), a "QuarterlyFinancial
Statement Delivery
Requirement"); and
The
Servicer expects to fail to satisfy each Annual Financial Statement Delivery
Requirement, and each Quarterly Financial Statement 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
ReportingFailure").
E-424
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.
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
1,
2, and 3 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-425
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.
XX XXXXXX XXXXX BANK, N.A., as Agent
By: /s/
XXXX
X.
XXXXXXX
Name: Xxxx
X. Xxxxxxx
Title: Vice
President
FALCON
ASSET SECURITIZATION
COMPANY,
LLC,
as
Conduit
Investor
By: XX
Xxxxxx Xxxxx Bank, N.A., its
its
attorney-in-fact
By: /s/
XXXX
X.
XXXXXXX
Name: Xxxx
X. Xxxxxxx
Title: Vice
President
PARK
AVENUE RECEIVABLES COMPANY
LLC,
as
Conduit Investor
By: XX
Xxxxxx Xxxxx Bank, N.A., its
its
attorney-in-fact
By: /s/
XXXX
X.
XXXXXXX
Name: Xxxx
X. Xxxxxxx
Title: Vice
President
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-426
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 2007-JPM OWNER TRUST
By:
Deutsche Bank Trust Company Delaware, not in its individual capacity, but solely
as Owner Trustee
By: /s/
XXXXXXX
XX
XXXX
Name: Xxxxxxx
Xx Xxxx.
Title: Attorney-in-Fact
XX
XXXXXX
XXXXX BANK, N.A., as Swap Counterparty
By: /s/
XXXX
X.
XXXXXXX
Name: Xxxx
X. Xxxxxxx
Title: Vice
President
E-427
