Contract
Navistar
Financial Corporation
Navistar
Financial Retail Receivables Corporation
000
X Xxxxxxxxxx Xxxx, Xxxxx
0000
Xxxxxxxxxx,
Xxxxxxxx 00000
Re:
Waiver
Ladies/Gentlemen:
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March
31, 2007
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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 fiscal
year ended October 31, 2006 (the "Independent Accountant's
Report DeliveryRequirement").
E-307
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)
may
fail 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
October 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
October 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
October 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.
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, the
Conduit Investor 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 October 31, 2007 unless the Servicer shall have
satisfied the Independent Accountant's Report Delivery Requirement prior to
such
date.
E-308
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, 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-309
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
XXXXX
Name:
Xxxxx Xxxxx
Title:
Authorized Signatory
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THUNDER
BAY FUNDING, LLC, as Conduit Investor
By: Royal
Bank of Canada, its
Attorney-in-fact
By:
/s/
XXXXX
XXXXXXXXXX
Name:
Xxxxx Xxxxxxxxxx.
Title:
Authorized Signatory
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THE
BANK OF NEW YORK, not in its individual capacity but solely as Indenture
Trustee
By:
/s/
XXXX
XXXXX
Name:
Xxxx Xxxxx.
Title:
Vice President
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E-310
Acknowledged
and Agreed:
NAVISTAR
FINANCIAL CORPORATION
By:
/s/
XXXXXXX X. XXXXX
Name:
Xxxxxxx X. Xxxxx.
Title:
V.P. , & General Counsel
NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION
By:
/s/
XXXXXXX X. XXXXX
Name: Xxxxxxx
X. Xxxxx.
Title:
V.P. , & General Counsel
NAVISTAR
FINANCIAL, 2006-RBC OWNER TRUST
By: Deutsche
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
By:
/s/
XXXXX
XXXXXXXX
Name:
Xxxxx Xxxxxxxx
Title:
Attorney-in-fact
ROYAL
BANK OF CANADA, as Swap Counterparty
By:
/s/
X.
XXXX XXXXXXX
Name:
X. Xxxx Xxxxxxx
Title:
Authorized Signatory
[Signature
Page to MC/Navistar Waiver Letter, dated
March 2007 (for 2006
Transaction)]
E-311