WAIVER NO. 6 TO RECEIVABLES PURCHASE AGREEMENT
EXECUTION
COPY
WAIVER
NO. 6
THIS
WAIVER NO.
6
(this
"Waiver"),
dated as of March 21, 2006, 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 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 year 2005, 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 year 2006, 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) 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, 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, 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,
are each hereby waived.
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(c) The
failure of Transferor to timely notify Agent pursuant to Section 7.1(b)(vi)
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. Consent. The Waiver
No. 1, dated as of the date hereof, attached hereto as Exhibit A, is hereby
consented to pursuant to Section 7.1(b) 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 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
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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
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
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:
_____________________________
Title:____________________________
NAVISTAR
FINANCIAL
CORPORATION
By:______________________________
Title:_____________________________
|
|
JUPITER
SECURITIZATION
CORPORATION
By:
JPMORGAN CHASE BANK, N.A.,
Its attorney-in-fact
By:__________________________________
Title:_________________________________
JPMPRGAN
CHASE BANK, N.A.
(successor by
merger
to Bank One, NA
(Main Office Chicago),
Individually
as a Financial
institution and as Agent
By:___________________________________
Title:__________________________________
|
E-233
Exhibit
A
[Attached]
E-234
