LENDER CONSENT LETTER NAVISTAR FINANCIAL CORPORATION ARRENDADORA FINANCIERA NAVISTAR, S.A. DE C.V., SOFOM, E.N.R. NAVISTAR FINANCIAL, S.A. DE C.V., SOFOM, E.N.R. NAVISTAR COMERCIAL, S.A. DE C.V. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JULY...
LENDER
CONSENT LETTER
NAVISTAR
FINANCIAL CORPORATION
ARRENDADORA
FINANCIERA NAVISTAR, S.A. DE C.V., XXXXX, E.N.R.
NAVISTAR
FINANCIAL, S.A. DE C.V., XXXXX, E.N.R.
NAVISTAR
COMERCIAL, S.A. DE C.V.
AMENDED
AND RESTATED CREDIT AGREEMENT DATED AS OF JULY 1, 2005
To: JPMorgan
Chase Bank, N.A.,
as Administrative Agent
000
Xxxx
Xxxxxx
Ladies
and Gentlemen:
Reference
is made 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., SOFOM,
E.N.R., a Mexican corporation, NAVISTAR FINANCIAL,
S.A. DE C.V.,
SOFOM, E.N.R., 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”).
The
Borrowers have requested a waiver with respect to the Credit Agreement on the
terms described in the Fifth Waiver in the form attached hereto as Exhibit
A
(the “Waiver”).
Pursuant
to Section 12.02 of the Credit Agreement, the undersigned Lender hereby consents
to the execution by the Administrative Agent of the Waiver.
Very
truly yours,
_____________________________________________________
(NAME
OF
XXXXXX)
By___________________________________________________
Name:
Title:
Dated
as
of November 28, 2007
FIFTH
WAIVER
FIFTH
WAIVER, dated as of November 28, 2007 (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”).
WITNESSETH
:
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 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. (a) Unless otherwise defined herein, capitalized terms
which are defined in the Credit Agreement are used herein as defined
therein.
(b) For
purposes of this Waiver, “Financial Officer”
shall mean
the chief financial officer or the treasurer of the Parent or the
treasurer or controller of the US Borrower, as applicable.
(c) For
purposes of this Waiver, the “2007 NIC Credit
Agreement” shall mean the Credit Agreement, dated as of January 19, 2007,
among Navistar International Corporation, the subsidiary guarantors party
thereto, the lenders party thereto, JPMorgan Chase Bank N.A., Credit Suisse,
Banc of America Securities LLC and Citigroup Capital Markets Inc.
2. Waivers.
The Lenders
hereby waive, until the earlier of (i) November 30, 2008 and (ii) the date
on
which the US Borrower and the Parent each shall have timely filed a report
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”), any
Default or Event of Default under:
(a) Clause
(e) of Article IX of the Credit Agreement that would result solely from the
Parent’s or the Borrowers’ failure to deliver by such date as may be required
under the Credit Agreement, the report on Form 10-K and financial statements
for
each of the fiscal years ended October 31, 2005, October 31, 2006 and October
31, 2007 and other information and documents required under Sections 7.01(a),
(c), (d) and (f) of the Credit Agreement that were to be delivered in connection
with such report or such financial statements;
(b) Clause
(e) of Article IX of the Credit Agreement that would result solely from the
Parent’s or the Borrowers’ failure to deliver by such date as may be required
under the Credit Agreement, the report on Form 10-Q and financial statements
(other than as required by Section 5 hereof) for each of the fiscal quarters
ended January 31, 2006, April 30, 2006, July 31, 2006, January 31, 2007, April
30, 2007, July 31, 2007, January 31, 2008, April 30, 2008 and July 31, 2008
and
other information and documents required under Sections 7.01(b), (d) and (f)
of
the Credit Agreement to be delivered in connection with such report or such
financial statements; and
(c) (i)
Any
condition or required representation or warranty that could not be satisfied
or
made or deemed made, and (ii) any Default or Event of Default arising, in each
case as a result of the breach of any representation or warranty in Section
5.04
or 5.14(b) of the Credit Agreement as a result of or arising out of any revision
or restatement in connection with the audit conducted for the fiscal years
ended
October 31, 2005, October 31, 2006 or October 31, 2007 of any financial
statements of the US Borrower or any of its affiliates for any period ending
on
or before the end of the Waiver Period (as defined below), or in any reports,
financial statements, certificates, or other information containing similar
information with respect to such periods.
3. Additional
Waiver. The Lenders hereby waive each covenant, requirement or
agreement under the Loan Documents for the Parent or the US Borrower to provide,
in the event of any change in generally accepted accounting principles used
in
the preparation of its financial statements for any period ending on or prior
to
November 30, 2008 from those previously used, a reconciliation of such financial
statements to GAAP; provided that, in
the
event a reconciliation from past practices to generally accepted accounting
principles in the preparation of such financial statements is available, the
Parent or the US Borrower, as appropriate, shall also provide such
reconciliation.
4. Agreements
by the US
Borrower. Notwithstanding anything to the contrary in the
Credit Agreement, to induce the Required Lenders to consent to the execution
by
the Administrative Agent of this Waiver, until the expiration of the waiver
provided in Section 2 (the “Waiver
Period”):
(i) The
US Xxxxxxxx agrees to deliver to the Administrative Agent, for prompt
distribution to each Lender:
(a) As
soon
as available, after the end of each of the fiscal years of the Parent ended
October 31, 2005, October 31, 2006 and October 31, 2007, a copy of the annual
report for such fiscal 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 or then current practice (unless
otherwise required to conform with the results of the audit or changes in GAAP),
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 a reconciliation from past practices to generally accepted accounting
principles in the preparation of such financial statements is available, the
Parent shall also provide such reconciliation.
(b) As
soon
as available, after the end of each of the fiscal quarters of the Parent ended
January 31, 2006, April 30, 2006, July 31, 2006, January 31, 2007, April 30,
2007, July 31, 2007, January 31, 2008, April 30, 2008 and July 31, 2008 (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 or then current practice (unless otherwise
required to conform with the results of the audit or changes in GAAP), 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, consistent with the Parent’s
past, or then current, practice; provided that, in
the
event a reconciliation from past practices to generally accepted accounting
principles in the preparation of such financial statements is available, the
Parent shall also provide such reconciliation.
(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 the US Borrower, ended
on
or after October 31, 2007, management financial reports of the US Borrower
setting forth (i) a preliminary consolidated statement of financial condition
and consolidated statement of income in a management format, (ii) serviced
portfolio information, (iii) funding availability under its contractual
arrangements with Truck Retail Instalment Paper Corp. and under the Credit
Agreement and (iv) calculations demonstrating compliance with Section 8.01
of
the Credit Agreement, in each case prepared in a manner materially consistent
with the US Borrower’s past or then current practices (unless otherwise required
to 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 Administrative Agent; provided, however,
that such reporting shall not be required so long as the US Borrower has filed
all reports with the Securities and Exchange Commission required pursuant to
Section 13 of the Exchange Act.
(d) As
soon
as available, and in any event within 30 days after the end of each month,
commencing with the month of October 2007, 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 or then current practices (unless otherwise required to
conform with the results of the audit or changes in GAAP) and on the basis
of
management’s good faith calculations, in such form and detail reasonably
satisfactory to the Administrative Agent (including, without limitation, any
financial information prepared in accordance with generally accepted accounting
principles to determine compliance with the covenants under the 2007 NIC Credit
Agreement); provided, however,
that such reporting shall not be required so long as the US Borrower has filed
all reports with the Securities and Exchange Commission required pursuant to
Section 13 of the Exchange Act.
(e) 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 the Parent, commencing
with the fiscal quarter ended October 31, 2007, quarterly condensed
manufacturing balance sheet and income statement of the Parent and its
consolidated subsidiaries, with its finance subsidiaries included on an equity
basis, prepared in a manner consistent with the Parent’s past or then current
practices (unless otherwise required to conform with the results of the audit
or
changes in GAAP) and on the basis of management’s good faith
calculations.
The
Lenders acknowledge that the financial information delivered pursuant to
subsections (c), (d) and (e) above will be preliminary and unaudited and will
be
prepared by management based on current data in a manner consistent with past
or
then current practices (unless otherwise required to conform with the results
of
the audit or changes in the GAAP), will not have been reviewed by the Parent’s
or the US Borrower’s independent accountants, and when the accounting review in
connection with the audit of the fiscal 2005, 2006 and 2007 financial statements
is complete, the information provided may differ from the audited financial
statements.
(ii) The
US Borrower agrees that each Applicable Rate for Revolving Loans and Tranche
A
Term Loans (but not for the facility fee) in Levels 4 and 5 in the definition
of
“Applicable Rate” in Section 1.01 of the Credit Agreement (including as
applicable to Letters of Credit) shall be increased by 0.25% per annum for
the
period from the Effective Date (as defined in Section 5 below) to and including
the last day of the Waiver Period.
(iii) The
US Borrower agrees that each Applicable Rate for Revolving Loans and Tranche
A
Term Loans (but not for the facility fee) in Levels 4 and 5 in the definition
of
“Applicable Rate” in Section 1.01 of the Credit Agreement (including as
applicable to Letters of Credit) shall be increased by 0.25% per annum (in
addition to the increase under paragraph (ii) of this Section 4) in the event
that the Parent or the US Borrower, as required under the Credit Agreement,
fails to file and deliver by March 31, 2008 the report on Form 10-K and
financial statements for fiscal year ended October 31, 2007, and such increase
shall remain in effect to and including the last day of the Waiver
Period.
5. Conditions
to Effectiveness
of this Waiver. The waivers set forth herein shall become
effective on the date upon receipt by the Administrative Agent of (the “Effective
Date”):
(a) counterparts
of this Waiver duly executed by each of the Borrowers and the Administrative
Agent; and
(b) authorization
to Xxxxx Xxxxxx at Xxxxxxx Xxxxxxx & Xxxxxxxx LLP (xxxxxxx@xxxxxx.xxx)to
release Lender Consent Letter with respect to this Waiver from each Lender
that
executes and delivers a Lender Consent Letter with respect to this Waiver and
the Required Lenders have released such Lender Consent Letters with respect
to
this Waiver; and
(c) for
the account of each Lender that
executes and delivers a Lender Consent Letter with respect to this Waiver on
or
before 5 p.m., Eastern time, on November 28, 2007, an amendment fee equal to
0.10% of the sum of the outstanding principal amount of such Xxxxxx’s Tranche A
Term Loans and its US Revolving Commitment.
6. 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
mutatismutandis,
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
represents and warrants that, except to the extent waived hereby, no Default
or
Event of Default has occurred and is continuing.
7. Continuing
Effect; No Other
Waiver. Except as expressly amended, waived or provided for
above, and subject to any existing amendment and 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 waivers provided for herein are limited to the
specific sections of the Credit Agreement specified herein and shall not
constitute an amendment or 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. For the avoidance of doubt, the amendments set forth in the
First Amendment, dated as of March 28, 2007, to the Credit Agreement remain
in
effect in accordance with the terms thereof. Further, for the
avoidance of doubt, the change to the definition of Applicable Rate effected
by
the Third Waiver and Consent, dated as of November 10, 2006, is hereby
rescinded.
8. 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.
9. 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
Xxxxxx’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.
10. 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.XXXXXXXX, XX.
Name:
Xxxx X. Xxxxxxxx, Xx.
Title:
V.P., CFO & Treasurer
ARRENDADORA
FINANCIERA NAVISTAR, S.A. DE C.V., XXXXX, E.N.R.
By:
/s/ XXXX XXXXXX
Name:
Xxxx Xxxxxx
Title:
Atorney-in-fact
NAVISTAR
FINANCIAL, S.A. DE C.V., XXXXX, E.N.R.
By:
/s/ XXXX XXXXXX
Name:
Xxxx Xxxxxx
Title:
Atorney-in-fact
NAVISTAR
COMERCIAL, S.A. DE C.V.
By:
/s/ XXXX XXXXXX
Name:
Xxxx Xxxxxx
Title:
Atorney-in-fact
JPMORGAN
CHASE BANK, N.A. as Administrative Agent
By: /s/ XXXXXXX XXXXX
Name:
Xxxxxxx Xxxxx
Title: Managing
Director
