Navistar Financial Corporation Navistar Financial Retail Receivables Corporation
December 6, 2007
Navistar
Financial
Corporation
Navistar
Financial Retail Receivables Corporation
000
X
Xxxxxxxxxx Xxxx
Xxxxx
0000
Xxxxxxxxxx,
Xxxxxxxx 00000
Re: Waiver
Ladies/Gentlemen:
Please
refer to (i) the Note Purchase Agreement, dated as of June 22, 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, Liberty Street Funding, LLC, as the Conduit Investor, and The Bank
of
Nova Scotia, as Agent for the Investors and (ii) the Servicing Agreement, dated
as of June 22, 2007, among NFRRC, Navistar Financial 2007-BNS 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) (i) on or before October 31, 2007 (or earlier under certain
circumstances specified therein), a copy of the annual financial statements
of
the Servicer for the fiscal years ended October 31, 2005 and 2006 and (ii)
on or
before March 1, 2008 (i.e., within 120 days after the last fiscal quarter of
the
fiscal year ended October 31, 2007), a copy of the annual financial statements
of the Servicer for the fiscal year ended October 31, 2007 (each such delivery
requirement in this clause (x), an “Annual Financial
Statement
Delivery Requirement”) and (y) (i) 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 and (ii) within 45 days after the end of the fiscal
quarters ended January 31, 2008, April 30, 2008 and July 31, 2008, a copy of
the
quarterly financial statements of the Servicer for the fiscal quarters ended,
respectively, January 31, 2008, April 30, 2008 and July 31, 2008 (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 February 1, 2008,
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,
2007 (the “Independent
Accountant’s Report Delivery Requirement”).
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 and 2007 with the Securities
Exchange Commission in accordance with the Securities Exchange Act of 1934,
and
(iii) expects to fail to timely file its annual report on Form 10-K for the
2007
Fiscal year and expects to timely file one or more of its quarterly reports
on
Form 10-Q for fiscal quarters in 2008 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 hereby 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
November 30, 2008 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
November 30, 2008 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
November 30, 2008 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 November 30, 2008 unless the Servicer shall have satisfied
the
Independent Accountant’s Report Delivery Requirement 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, 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.
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
THE
BANK
OF NOVA SCOTIA, as Agent
By: /s/ XXXXXX
LAST
Name: Xxxxxx Last
Title: Managing
Director
LIBERTY
STREET FUNDING, LLC,
as
Conduit Investor
By:
/s/ XXXX X. XXXXXX
Name:
Xxxx X. Xxxxxx
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
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-BNS 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 Hy Voon
Title:
Attorney-in-Fact
THE
BANK
OF NOVA SCOTIA, as Swap Counterparty
By:
/s/ XXXXXX LAST
Name:
Xxxxxx Last
Title:
Managing Director
