AMENDMENT TO NOTE PURCHASE AGREEMENT
AMENDMENT
TO
THIS
AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”) dated as
of December 7, 2007, is entered into among Navistar Financial Retail
Receivables Corporation (the “Seller”), Navistar Financial Corporation (“Servicer”), Kitty
Hawk Funding Corporation, (“KHFC”), as a
Conduit Investor, and Bank of America, National Association (“Bank of America”),
as Agent, the Administrator and an Alternate Investor.
RECITALS
A. The
Seller, the Servicer, KHFC and Bank of America are parties to that certain
Note
Purchase Agreement, dated as of February 27, 2006 (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. 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 to the following amendments to the Agreement:
(a) The
Agreement is hereby amended by amending and restating Section 3.01 (a)(v) of
the
Agreement in its entirety to read as follows:
“(v)
except for those caused by the failure of NFC and its affiliates to deliver
its
financial statements and related financial information for the fiscal years
ended October 31, 2005 or October 31, 2006, or for fiscal quarters ending
January 31, April 30 and July 31 of 2006, or for the fiscal quarters ending
January 31, April 30 and July 31 of 2007, in each case, prior to November 30,
2008, the Seller (i) is not in violation of its Certificate of Incorporation
or
By-Laws and (ii) is not in breach or violation of any of the terms or provisions
of, or with the giving of notice or lapse of time, or both, would be in default
under, any contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, partnership agreement, or other agreement or instrument to which the
Seller is a party or by which it may be bound or to which any of its properties
or assets may be subject, except for such violations or defaults that would
not
have a Material Adverse Effect;”
(b) The
Agreement is hereby amended by amending and restating Section 3.01 (b)(vi)
of
the Agreement in its entirety to read as follows:
“(vi)
except for those caused by the failure of NFC and its affiliates to deliver
its
financial statements and related financial information for the fiscal years
ended October 31, 2005 or October 31, 2006, or for fiscal quarters ending
January 31, April 30 and July 31 of 2006, or for the fiscal quarters ending
January 31, April 30 and July 31 of 2007, in each case, prior to November 30,
2008, NFC (i) is not in violation of its Certificate of Incorporation or By-Laws
and (ii) is not in breach or violation of any of the terms or provisions of,
or
with the giving of notice or lapse of time, or both, would be in default under,
any contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
partnership agreement, or other agreement or instrument to which the Seller
is a
party or by which it may be bound or to which any of its properties or assets
may be subject, except for such violations or defaults that would not have
a
Material Adverse Effect;”
(c) The
Agreement is hereby amended by amending and restating Section 5.02(c) of the
Agreement 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 and Bank of America, 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 any provision in the
Agreement, that an immediate Event of Default will occur if, without the need
for the giving of any notices by any party or the passage of any grace period,
the 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 Agent, each Conduit Investor and each Alternate, shall have provided
a further waiver of the covenant violation described in this sentence on or
before such date; and
2. Waiver.
By their
signature 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 Event of Default, 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 breach of any representation or warranty in Section 3.01(a)(xii)
or Section 3.01(b)(x) 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, 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 Sections 3.01(a)(v), 3.01(b)(vi) and 5.02(c), as amended
hereby or any Servicer Default occurring as a result of 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. Representations
and
Warranties. The Seller hereby represents and warrants to KHFC and Bank of
America that, after giving effect to this Amendment, no Event of Default has
occurred and is now continuing, and NFC hereby represents and warrants that,
after giving effect to this Amendment, no Event of Default or Servicer Default
has occurred and is now continuing.
4. Effect
of Amendment.
All provisions of the Agreement, as extended 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 extended 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.
5. Conditions
Precedent.
The effectiveness of this Amendment is subject to the receipt of the fee
specified in the fee letter, dated as of the date hereof.
6. 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.
7. 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.
8. 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 RETAIL RECEIVABLES 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 Investor
By:
/s/ XXXXXX X. XXXXXXX
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
as
Agent,
Administrator and as an Alternate Investor
By:
/s/ XXXXXX XXX XXXX.
Name:
Xxxxxx Xxx Xxxx
Title:
Principal
