WAIVER NO. 1 TO RECEIVABLES SALE AGREEMENT
EXECUTION
COPY
WAIVER
NO. 1
THIS
WAIVER NO. 1
(this "Waiver"),
dated as of March 21, 2006, is among Navistar Financial
Corporation, a Delaware corporation ("Navistar"),
as Transferor, and Truck Retail Accounts Corporation,
a
Delaware corporation, as Transferee and pertains to that certain RECEIVABLES
SALE 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
Transferor has requested that the Transferee agree to waive certain provisions
of the Agreement; and
The
Transferee is willing to agree to the requested waivers 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 4.1(a)(i )
of the Agreement for delivery of annual financial statements of Parent and
Transferor for fiscal year 2005, the requirement in Section 4.1(a)(ii) of the
Agreement for delivery of quarterly financial statements of Parent and
Transferor for the first, second and third quarters of fiscal year 2006, and
the
requirements in Sections 4.1(a)(iii) for the delivery of certain compliance
certificates related to the aforementioned financial statements, are each hereby
waived until the earlier of (i) January 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").
(b) Any
condition or required representation or warranty that has not been satisfied
or
made or deemed made, as a result of the breach of any representation or warranty
in Section 2.1(f) 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, of any financial statements of Transferor or any of its
affiliates for any period ending on or before July 31, 2005, or any reports,
financial statements, certificates or other information containing similar
information with respect to such periods, is hereby waived.
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(c) The
failure of Transferor to timely notify Transferee pursuant to Section 4.1(b)(iv)
of the Agreement that Transferor was downgraded by Xxxxx'x Investors Service,
Inc., and setting forth the Indebtedness affected and the nature of such change,
is hereby waived.
Section
2. 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
Transferee:
(a) As
soon
as available after the end of the fiscal year of Transferor ended October 31,
2005 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 annual report in respect of the fiscal year of the Parent
ended October 31, 2005 is delivered, and thereafter within 45 days after the
end
of each fiscal quarter ended January 31, 2006, April 30, 2006 and July 31,
2006,
(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.
(c) As
soon
as available, and in any event within 60 days after the end of each fiscal
quarter of the Transferor, except the fiscal quarter ended January 31, 2006
for
which the requirement is 90 days, management financial reports of the US
Borrower 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
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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, 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 March 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
3. Representations
and
Warranties. In order to induce the parties to enter into this Waiver, the
Transferor represents and warrants to the Transferee that (a) after giving
affect to this Waiver, each of Transferor's representations and warranties
contained in Article II of the Agreement is true and correct as of the date
hereof, (b) the execution and delivery by the Transferor 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 the Transferor
and constitutes the legal, valid and binding obligation of such Seller Party
enforceable against the Transferor 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).
Section
4. 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.
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Section
5. 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.
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NAVISTAR
FINANCIAL
CORPORATION
By:
/s/ XXXX X. XXXXXXXX,
XX.
Name: Xxxx
X. Xxxxxxxx, Xx.
Title: V.P.
Controller
TRUCK
RETAIL ACCOUNTS
CORPORATION
By: /s/ XXXX
X. XXXXXXXX,
XX.
Name: Xxxx
X. Xxxxxxxx, Xx.
Title: V.P.
Controller
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