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 (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. X-x, 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 October 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)
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 (each such delivery
requirement in this clause (y), a "Quarterly Financial
Statement Delivery Requirement"); and
The
Servicer expects to fail to satisfy each Annual Financial Statement Delivery
Requirement and each Quarterly Financial Statement 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 Actof of 1934, and (iii) has failed
to
timely file one or more of its quarterly reports on Form 10-Q for fiscal
quarters in
E-414
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").
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
December 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
December 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
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.
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, and 3 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-415
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/
XXXXXXX
XXXXX
Name: Xxxxxxx
Xxxxx
Title: 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
E-416
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 XX Xxxx
Title:
Attorney-in-Fact
THE
BANK
OF NOVA SCOTIA,
As
Swap
Counterparty
By: /s/
XXXXXXX
X. XXXXXX
Name: XXXXXXX
X. XXXXXX
Title: Director
E-417