AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT
AMENDMENT,
WAIVER AND EXTENSION TO
AMENDED
AND RESTATED
THIS
AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE
AGREEMENT (this “Amendment”) dated as
of December 7, 2007and being entered into among Navistar Financial Securities
Corporation (the “Seller”),
Navistar
Financial Corporation (“Servicer”), Kitty
Hawk Funding Corporation, (“KHFC”), as a
Conduit Purchaser, Liberty Street Funding LLC (f/k/a Liberty Street Funding
Corp. “Liberty
Street”), as a Conduit Purchaser, The Bank of Nova Scotia (“BNS”), as a
Managing Agent and a Committed Purchaser, and Bank of America, National
Association (“Bank of
America”), as a Managing Agent, the Administrative Agent and a Committed
Purchaser.
RECITALS
A. The
Seller, the Servicer, KHFC, Liberty Street, BNS and Bank of America are parties
to that certain Amended and Restated Certificate Purchase Agreement, dated
as of
December 27, 2004 (as amended, supplemented or otherwise modified through the
date hereof, the “Agreement”).
B. Such
parties desire to amend the Agreement as hereafter set forth.
C. Prior
to
giving effect to the amendment to Section 7A.01(c) of the Agreement set forth
in
Section 1
below, Section 7A.01 of the Agreement required that NFC furnish to the
Administrative Agent as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of any fiscal year and 120
days after the end of the last fiscal quarter of any fiscal year, copies of
the
interim or annual, as applicable, financial statements of NFC, prepared in
conformity with generally accepted accounting principles consistently applied.
NFC has requested a waiver of any Default (defined below) arising from its
failure to deliver copies of the annual and interim financial statements of
the
fiscal year ending October 2005, the fiscal quarters ending January 31, April
30
and July 31 of 2006, the fiscal year ending October 2006, the fiscal quarters
ending January 31, April 30 and July 31, 2007, the fiscal year ending October
2007, and the fiscal quarters ending January 31, April 30 and July 31 of 2008
on
a timely basis (such failure, the “ReportingDefault”).
Each of
the parties hereto hereby agrees to waive the occurrence of any Default to
the
extent described below.
D. Such
parties desire to modify the Purchase Expiration Date under (and as defined
in)
the Agreement in accordance with Section 2.04 of the Agreement.
E. NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1.Amendments
to
Agreement. By their signatures hereto, each of the
parties
hereto hereby agrees that the Agreement is hereby amended as
follows:
(A) Section
7A.01(c) of the Agreement is hereby amended and restated in its entirety to
read
as follows:
(c)
(1)
as soon as available and in any event within (i) 45 days after the end of each
of the first three fiscal quarters of any fiscal year and (ii) 120 days after
the end of the last fiscal quarter of any fiscal year, copies of the interim
or
annual, as applicable, financial statements of NFC, prepared in conformity
with
generally accepted accounting principles consistently applied; provided, however
that NFC shall not be required to deliver its financial statements for fiscal
years 2005, 2006 and 2007 and for the fiscal quarters ending January 31, April
30 and July 31 of 2006, for the fiscal quarters ending January 31, April 30
and
July 31 of 2007 and for the fiscal quarters ending January 31, April 30 and
July
31 of 2008 (such financial statements, collectively, the “Financial
Statements”) until the earlier to occur of November 30, 2008 and five (5)
Business Days after the filing thereof with the SEC and (2) as soon as available
but no later than the due dates therefor prescribed in Section 4 of the Fifth
Waiver and Consent, dated as of November [_],2007 (the “Fifth Waiver”)to the
Amended and Restated Credit Agreement dated as of July 1, 2005, among the
Servicer, Bank of America, and BNS, among others, each of the reports referred
to in Section 4 of the Fifth Waiver, provided, however, that such reporting
shall not be required so long as the Servicer’s parent has filed all reports
with the Securities and Exchange Commission required pursuant to Section 13
of
the Exchange Act; provided further, however, that each of the Seller and the
Servicer, acknowledge and agree that, notwithstanding and any provision in
the
Agreement, that an immediate Early Amortization Event will occur if, without
the
need for the giving of any notices by any party or the passage of any grace
period, each Managing Agent shall not have received the Financial Statements
by
the earlier of (i) November 30, 2008 and (ii) [five (5) Business Days] after
the
filing of such Financial Statements with the SEC, unless the Administrative
Agent, each Managing Agent and each Purchaser, shall have provided a further
waiver of the covenant violation described in this sentence on or before such
date.
(B) The
definition of “Alternate Rate” set forth in Section 1.01 of the Agreement is
hereby amended and restated in its entirety to read as follows:
“Alternate
Rate” for
any Fixed Period for any Funding Tranche means an interest rate per annum equal
to 1.50% per annum above the
Eurodollar Rate for such Fixed Period; provided,however,
that in the
case of
(i) any
Fixed Period existing on or after the first day of which a Managing Agent shall
have been notified by a Conduit Purchaser or Liquidity Purchaser in its
Purchaser Group or other Program Support Provider that the introduction of
or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other Governmental Authority asserts that
it is
unlawful, for a Conduit Purchaser or its Liquidity Purchaser or other Program
Support Provider to fund any Funding Tranche (based on the Eurodollar Rate)
set
forth above (and such
Conduit
Purchaser or its Liquidity Purchaser or other Program Support Provider shall
not
have subsequently notified its Managing Agent that such circumstances no longer
exist),
(ii) any
Fixed
Period of one to (and including) 13 days,
(iii) any
Fixed
Period relating to a Funding Tranche which is less than $1,000,000,
and
(iv) any
Fixed
Period with respect to which the Alternate Rate, for any reason, becomes
applicable on notice to the Administrative Agent of less than three Business
Days,
the
“Alternate
Rate” for
each such Fixed Period shall be an interest rate per annum equal to the
Corporate Base Rate in effect on each day of such Fixed Period. The “Alternate Rate” for
any day on or after the occurrence of an Early Amortization Event shall be
an
interest rate equal to 2.0% perannum
above the
Corporate Base Rate in effect on such day.
(C) The
definition of “Funding Rate” set forth in Section 1.01 of the Agreement is
hereby amended and restated in its entirety to read as follows
“Funding
Rate” means,
with respect to any Fixed Period and any Funding Tranche, (a) to the extent
a
Conduit Purchaser (or a RIC which is an assignee of such Conduit Purchaser)
is
funding such Funding Tranche during such Fixed Period through the issuance
of
Notes, its CP Rate, and (b) to the extent any Purchaser is not funding such
Funding Tranche through the issuance of Notes, a rate per annum (expressed
as a
percentage and an interest yield equivalent and calculated on the basis of
a
360-day year and the actual days elapsed) equal to the Alternate Rate; provided
that the Funding Rate shall be increased by 0.125% per annum in the event that
NFC 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 date on which NFC 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.
2. Waiver.
By their
signatures hereto, each of the parties hereto waives (i)any condition or
covenant that has not been satisfied, the breach of any representation or
warranty made or deemed made, and any occurrence of an Early Amortization Event,
event of default, event of termination or similar event (in each case, with
respect to all of the foregoing, whether such event is matured or unmatured
and
collectively referred to herein as a “Default”), under the
Agreement, solely to the extent such Default was caused directly by or resulted
directly from (a) the Reporting Default, (b) a breach of any representation
or
warranty in Section 5.01(1) or 5.02(j) of the Agreement resulting from or
arising out of any restatement, in connection with the audit conducted for
the
fiscal year ended October 2005, or October 31, 2006, of any financial statements
of NFC or any of its affiliates for any
period
ending on or before the expiration of the waiver contemplated herein, or any
reports, financial statements, certificates or other information containing
similar or derived information therefrom with respect to such periods or (c)
the
failure of NFC, as Servicer, to deliver the reports contemplated by, and due
on
or about April 15, 2006, April 15, 2007 and to be due April 15, 2008 pursuant
to, Section 3.06(a) and (b) of the Pooling and Servicing Agreement (as defined
in the Agreement) by April 15, 2006, April 15, 2007 and April 15, 2008,
respectively, provided that each such report shall be delivered by the earlier
of (i) November 30, 2008 and (ii) [five (5) Business Days] after the filing
thereof with the SEC. Each party (other than NFC and the Seller) hereto hereby
expressly reserves, and nothing herein shall be construed as a waiver of NFC’s
failure to comply with Section 7A.01(c), as amended hereby, any Event of Default
(as defined in the Pooling and Servicing Agreement) occurring as a result of
the
failure referred to in clause (c) without the consent of, or at the direction
of, KHFC, Liberty Street, BNS or Bank of America, or NFC’s failure to deliver
the reports referred to in the immediately preceding sentence on or before
the
earlier of (i) five (5) Business Days after the filing thereof with the SEC
and
(ii) November 30, 2008.
3. Extension.
The
Purchase Expiration Date is extended to November [], 2008, or,
if
earlier, the date specified in clause (ii) of the definition of Purchase
Expiration Date in the Agreement as originally executed.
4. Representations
and
Warranties. The Seller hereby represents and warrants to KHFC, Liberty
Street, BNS and Bank of America that, after giving effect to this Amendment,
no
Early Amortization Event has occurred and is now continuing, and NFC hereby
represents and warrants that, after giving effect to this Amendment, no Early
Amortization Event or Servicer Termination Event has occurred and is now
continuing.
5. Effect
of Amendment.
All provisions of the Agreement, as amended by this Amendment, remain in full
force and effect. After this Amendment becomes effective, all references in
the
Agreement to “this Agreement”, “hereof”, “herein” or words of similar effect
referring to the Agreement in the Agreement or in any other document relating
to
the Seller’s securitization program shall be deemed to be references to the
Agreement as amended by this Amendment. This Amendment shall not be deemed
to
expressly or impliedly waive, amend or supplement any provision of the Agreement
other than as set forth herein.
6. Conditions
Precedent.
The effectiveness of this Amendment is subject to the receipt of each fee
specified in the fee letter, dated as of the date hereof.
7. Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
on separate counterparts, and each counterpart shall be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
8. Governing
Law. This
Amendment shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to any otherwise applicable
principles of conflicts of law.
9. Section
Headings. The
various headings of this Amendment are inserted for convenience only and shall
not affect the meaning or interpretation of this Amendment or the Agreement
or
any provision hereof or thereof.
[signatures
on next page]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
NAVISTAR
FINANCIAL SECURITIES CORPORATION, as Seller
By:
/s/ XXXX X.XXXXXXXX, XX.
Name:
Xxxx X. Xxxxxxxx, Xx.
Title:
V.P., CFO & Treasurer
NAVISTAR
FINANCIAL CORPORATION, as Servicer
By:
/s/ XXXX X.XXXXXXXX, XX.
Name:
Xxxx X. Xxxxxxxx, Xx.
Title:
V.P., CFO & Treasurer
KITTY
HAWK FUNDING CORPORATION,
as
a
Conduit Purchaser for the KHFC Purchaser Group
By:
/s/ XXXXXX X. XXXXXXX
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
BANK
OF
AMERICA, NATIONAL ASSOCIATION, as Administrative Agent
By:
/s/ XXXXXX XXX XXXX.
Name:
Xxxxxx Xxx Xxxx
Title:
Principal
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
as
a
Committed Purchaser and Managing Agent for the KHFC Purchaser Group
By:
/s/ XXXXXX XXX XXXX.
Name:
Xxxxxx Xxx Xxxx
Title:
Principal
Purchaser
Percentage: 50%
Commitment:
$400,0000,000
THE
BANK
OF NOVA SCOTIA,
as
a
Committed Purchaser and Managing Agent for the Liberty Street Purchaser
Group
By:
/s/ XXXXXX LAST
Name: Xxxxxx
Last
Title:
Managing Director
Commitment:
$400,0000,000
LIBERTY
STREET FUNDING LLC,
as
a
Conduit Purchaser for the Liberty Street Purchaser Group
By:
/s/
XXXX
X. XXXXXX
Name: Xxxx
X. Xxxxxx
Title:
Vice President
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