EXECUTION COPY
EXECUTION
COPY
|
Navistar
Financial Corporation
Navistar
Financial Retail Receivables Corporation
000
X Xxxxxxxxxx Xxxx
Xxxxx
0000
Xxxxxxxxxx,
Xxxxxxxx 00000
Re:
Waiver
Ladies/Gentlemen:
|
October
23, 2007
|
Please
refer to the Receivables Purchase Agreement, dated as of July 30, 2004 (as
in
effect on the date hereof, the "Receivables Purchase
Agreement") among Navistar Financial Retail Receivables Corporation, as
Seller, Navistar Financial Corporation, as Servicer, Thunder Bay Funding, LLC,
as Company, and Royal Bank of Canada, as Agent. Capitalized terms used but
not
defined herein have the respective meanings ascribed to them in the Receivables
Purchase Agreement.
The
Receivables Purchase Agreement requires, among other things, the
following:
(i) Section
5.1(a) requires that the Servicer deliver to the Agent (x) within 120 days
after
the close of each fiscal year, a copy of the annual report for the Servicer
for
such fiscal year on Form 10-K (the "10-K Delivery
Requirement") and (y) within 45 days after the close of the first three
quarterly periods of a fiscal year, a copy of the quarterly report for the
Servicer for such fiscal year on form 10-Q (the "10-Q Delivery
Requirement"); and
(ii) Section
6.10 requires that on or before February 1 of each year, beginning February
1,
2005, the Servicer shall cause a firm of independent accountants to deliver
to
the Agent an independent Accountant's Report for the preceding fiscal year
(the
"Independent
Accountant's
Report Delivery Requirement").
For
(x)
the fiscal year ended on October 31, 2005 (the "2005 Fiscal Year"),
the Servicer has failed to satisfy the 10-K Delivery Requirement and has failed
to satisfy the Independent Accountant's Report Delivery Requirement and (y)
the
fiscal year ended on October 31, 2006 (the "2006 Fiscal Year"),
the Servicer has failed to satisfy the 10-K Delivery Requirement and expects
to
fail to satisfy 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
ReportingFailure").
E-398
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 hereby waives any Servicer Default arising solely from the failure to
satisfy the 10-K Delivery Requirements for the 2005 Fiscal Year and the 2006
Fiscal Year; provided that this waiver shall only remain effective until
December 31, 2007 unless the Servicer shall have satisfied the 10-K Delivery
Requirements for the 2005 Fiscal Year and the 2006 Fiscal Year prior to such
date.
2. The
Agent hereby waives any Servicer Default arising solely from the failure to
satisfy the 10-Q Delivery Requirements for any fiscal quarter in the 2006 fiscal
year of the Servicer and any fiscal quarter in the 2007 fiscal year of the
Servicer; provided that this waiver shall only remain effective until December
31, 2007 unless the Servicer shall have satisfied the 10-Q Delivery Requirements
for each fiscal quarter in the 2006 and the 2007 fiscal year of the Servicer
prior to such date.
3. The
Agent hereby waives any Servicer Default arising under Section 5.1(c) of the
Receivables 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.
4. 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.
The
Agent
hereby expressly reserves, and nothing herein shall be construed as a waiver
of,
(i) any Servicer Default specified in paragraphs 1, 2, 3 and 4 above, to the
extent that the effectiveness of the waiver of such Servicer Default shall
lapse
as described therein and (ii) any rights with respect to any breach constituting
a Servicer Default or Potential Servicer Default 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-399
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
X. Xxxxx
Title: Authorized
Signatory
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
E-400
