WAIVER NO. 7 TO RECEIVABLES PURCHASE AGREEMENT
WAIVER
NO. 7
THIS
WAIVER NO. 7
(this "Waiver"),
dated as of January 31, 2007, is among Truck Retail
Accounts Corporation, a Delaware corporation ("Seller"),
Navistar
Financial
Corporation, a Delaware corporation ("Navistar”),
as initial Servicer (Navistar, together with Seller, the
"Seller
Parties"
and each a "Seller
Party”),
the entities set forth on the signature pages to this
Agreement (together with any of their respective successors and assigns
hereunder, the "Financial
Institutions”),
Jupiter Securitization Company LLC, a Delaware limited
liability company formerly known as Jupiter Securitization Corporation ("Conduit”),
and JPMorgan Chase Bank, N.A. (successor by merger to
Bank
One, NA (Main Office Chicago)), as agent for the Purchasers hereunder or any
successor agent hereunder (together with its successors and assigns hereunder,
the "Agent”),
and
pertains to that certain RECEIVABLES PURCHASE AGREEMENT dated as of April 8,
2004 by and among the parties hereto (as heretofore amended or modified from
time to time, the "Agreement”. Unless
defined elsewhere herein, capitalized terms used in this Waiver have the
meanings assigned to such terms in the Agreement.
PRELIMINARY
STATEMENTS
The
Seller Parties have requested that the Agent and the Purchasers agree to waive
certain provisions of the Agreement and to consent to a certain action of the
Seller Parties; and
The
Agent
and the Purchasers are willing to agree to the requested waivers and consent
on
the terms hereinafter set forth.
NOW,
THEREFORE,
in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1. Waiver.
(a) The
requirement in Section 7.1(a)(i) of
the Agreement for delivery of annual financial statements of Parent and
Transferor for fiscal years 2005 and 2006, the requirement in Section 7.1(a)(ii)
of the Agreement for delivery of quarterly financial statements of Parent and
Transferor for the first, second and third quarters of fiscal years 2006 and
2007, and the requirements in Sections 7.1(a)(iii) for the delivery of certain
compliance certificates related to the aforementioned financial statements,
are
each hereby waived until the earlier of (i) October 31, 2007 and
(ii) the date on
which Parent and Transferor shall have timely filed reports 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 (the "Exchange
Act").
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(b) Any
condition or required representation or warranty that has not been satisfied
or
made or deemed made, and any Amortization Event or Potential Amortization Event,
in each case, as a result of the breach of any representation or warranty in
Section 5.1(g) of the Agreement as a result of or arising out of any
restatement, in connection with the audit conducted for the fiscal year ended
October 31, 2005 or October 31, 2006, of any financial statements of Transferor
or any of its affiliates for any period ending on or before October 31, 2007,
or
any reports, financial statements, certificates or other information containing
similar information with respect to such periods, are each hereby
waived.
Section
2. Consent. The Waiver
No. 2, dated as of the date hereof, attached hereto as Exhibit A, is hereby
consented to pursuant to Section 7.1 of the Agreement.
Section
3. Agreement by
Transferor. Notwithstanding anything to the contrary in the Agreement, to
induce the parties to enter into this Waiver, until the expiration of the waiver
provided in Section 1(a), Transferor agrees to deliver to the
Agent:
(a) As
soon
as available after the end of each of the fiscal years of Transferor ended
October 31, 2005 and October 31, 2006, a copy of the annual report for such
year
for the Parent and its Subsidiaries, including therein (i) a consolidated
balance sheet of the Parent and its Subsidiaries as of the end of such fiscal
year and (ii) a consolidated statement of income and a consolidated statement
of
cash flows of the Parent and its Subsidiaries for such fiscal year, in each
case
prepared in accordance with Rule 3-10 of Regulation S-X, consistent with the
Parent's past practice, on the basis of management's good faith calculations
and
fairly presenting in all material respects the consolidated financial condition
of the Parent and its Subsidiaries as at such date and the consolidated results
of operations of the Parent and its Subsidiaries for the period ended on such
date; provided
that, in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the Parent shall also
provide a reconciliation of its financial statements to GAAP.
(b) As
soon
as available after the end of the fiscal quarters ended January 31, 2006, April
30, 2006, July 31, 2006, January 31, 2007, April 30, 2007 and July 31, 2007
(i)
a consolidated balance sheet of the Parent and its Subsidiaries as of the end
of
such quarter, (ii) a consolidated statement of income and a consolidated
statement of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the end
of
such fiscal quarter, and (iii) a consolidated statement of income and a
consolidated statement of cash flows of the Parent and its Subsidiaries for
the
period commencing at the end of the previous fiscal year and ending with the
end
of such quarter, all prepared in accordance with Rule 3-10 of Regulation S-X,
consistent with the Parent's past practice, on the basis of management's good
faith calculations and fairly presenting in all material respects, subject
to
year end audit adjustments and the absence of footnotes, the consolidated
financial condition of the Parent and its Subsidiaries as at such dates and
the
consolidated results of operations of the Parent and its Subsidiaries for the
periods ended on such dates, setting forth in each case in comparative form
the
corresponding figures for the corresponding date or period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments and the absence of footnotes) by a financial officer
of the Parent as having been prepared in accordance with GAAP; provided that, in
the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Parent shall also provide a
reconciliation of such financial statements to GAAP.
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(c) As
soon
as available, and in any event within 60 days after the end of each fiscal
quarter (other than the last fiscal quarter of a fiscal year) or 90 days after
the end of the last fiscal quarter of a fiscal year of Navistar, ended on or
after October 31, 2006, management financial reports of Navistar setting forth
(i) a preliminary consolidated balance sheet and consolidated statements of
income in a management format, (ii) serviced portfolio information (iii) funding
availability under its contractual arrangements with Truck Retail Installment
Paper Corp. and under the Transferor Credit Agreement and (iv) calculations
demonstrating compliance with Section 8.01 of the Transferor Credit Agreement,
in each case prepared in a manner materially consistent with the Transferor's
past practices (unless otherwise required to conform with the results of the
audit or changes in GAAP) and, to the extent relevant, on the basis of
management's good faith efforts, in such form and detail reasonably satisfactory
to the Agent; provided, however,
that such reporting shall not be required so long as the Transferor has filed
all reports with the Securities and Exchange Commission required pursuant to
Section 13 of the Exchange Act. The parties hereto acknowledge that such
management financial reports are not final and are subject to change in
connection with either the preparation, for the corresponding fiscal quarter,
of
a report on Form 10-Q or 10-K, as a result of or arising out of any restatement,
in connection with the audit conducted for the fiscal year ended October 31,
2005 or October 31, 2006, as the case may be.
(d) As
soon
as available, and in any event within 30 days after the end of each month,
commencing with the month of October 2006, monthly management financial reports
of the Parent in respect of the sales and income by segment and cash balances,
Indebtedness, capital expenditures and depreciation and amortization of the
Parent and its consolidated Subsidiaries prepared in a manner consistent
with
the Parent's past practices and on the basis of management's good faith
calculations, in such form and detail reasonably satisfactory to the Agent;
provided,however,
that such
reporting shall not be required so long as the Parent has filed all reports
with
the Securities and Exchange Commission required pursuant to Section 13 of
the
Exchange Act.
Section
4. Representations
and
Warranties. In order to induce the parties to enter into this Waiver,
each of the Seller Parties hereby represents and warrants to the Agent and
the
Purchasers that (a) after giving affect to this Waiver, each of such Seller
Party's representations and warranties contained in Article V of the Agreement
is true and correct as of the date hereof, (b) the execution and delivery by
such Seller Party of this Waiver, and the performance of its obligations
hereunder, are within its corporate or limited partnership, as applicable,
powers and authority and have been duly authorized by all necessary corporate
or
limited partnership, as applicable, action on its part, and (c) this Waiver
has
been duly executed and delivered by such Seller Party and constitutes the legal,
valid and binding obligation of such Seller Party enforceable against such
Seller Party in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
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Section
5.
Condition
Precedent. This Waiver shall become effective as of the date first above
written upon receipt by the Agent of counterparts hereof duly executed by each
of the parties hereto.
Section
6. Miscellaneous.
(a)
THIS WAIVER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS
(AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(c)
Except as expressly modified hereby, the Agreement remains unaltered and in
full
force and effect and is hereby ratified and confirmed. This Waiver shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns (including any trustee in
bankruptcy).
(c) This
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one
and
the same agreement.
[signatures
on next
pages]
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IN
WITNESS WHEREOF, the parties hereto
have caused this Waiver to be executed and delivered by their duly authorized
officers as of the date hereof.
TRUCK
RETAIL ACCOUNTS
CORPORATION
By:
/s/ XXXX
X. XXXXXXXX,
XX.
Name: Xxxx
X. Xxxxxxxx, Xx.
Title: V.P.,
CFO & Treasurer
NAVISTAR
FINANCIAL
CORPORATION
By:
/s/ XXXX
X. XXXXXXXX,
XX.
Name: Xxxx
X. Xxxxxxxx, Xx.
Title: V.P.,
CFO & Treasurer
JUPITER
SECURITIZATION COMPANY
LLC
By:
XX Xxxxxx Xxxxx Bank, N.A., ITS
Attorney-in-Fact
By:
/s/ XXXX
X.
XXXXXX
Name: Xxxx
X. Xxxxxx
Title: Vice
President
XX
XXXXXX CHASE BANK, N.A. (successor
by
Merger
to Bank One, NA (Main Office
Chicago)
INDIVIDUALLY
AS A FINANCIAL
INSTITUTION AND
AS
AGENT
By:
/s/ XXXX
X.
XXXXXX
Name: Xxxx
X. Xxxxxx
Title: Vice
President
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Exhibit
A
[Attached]
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