Execution Copy AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE AGREEMENT
Execution
Copy
AMENDMENT,
WAIVER AND EXTENSION TO
AMENDED
AND RESTATED
THIS
AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED CERTIFICATE PURCHASE
AGREEMENT (this "Amendment") dated as
of March 24, 2006, is entered into among Navistar Financial Securities
Corporation (the "Seller"),
Navistar
Financial Corporation ("Servicer"), Kitty
Hawk Funding Corporation, ("KHFC"), as a Conduit Purchaser, Liberty Street
Funding Corp. ("Liberty Street"),
as a Conduit Purchaser, the Bank of Nova Scotia ("BNS") as a Managing Agent
and
a Committed Purchaser and Bank of America, National Association ("Bank of America"),
as a Managing Agent, the Administrative Agent and a Committed
Purchaser.
RECITALS
A. The
Seller, the Servicer, KHFC, Liberty Street, BNS and Bank of America are parties
to that certain Amended and Restated Certificate Purchase Agreement, dated
as of
December 27, 2004 (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. Prior
to
giving effect to the amendment to Section 7A.01(c) of the Agreement set forth
in
Section 1
below, Section 7A.01 of the Agreement required, among other things, that NFC
furnish to the Administrative Agent as soon as available and in any event within
45 days after the end of each of the first three fiscal quarters of any fiscal
year and 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. NFC has requested a waiver of any Default (defined below)
arising from its failure to deliver copies of the annual and interim financial
statements of the fiscal year ending October 2005 and the fiscal quarter ended
January 2006 (such failure, the "Reporting Default").
The parties hereto hereby agrees to waive the occurrence of any Default to
the
extent described below.
D. Such
parties desire to .modify
the Purchase
Expiration Date under (and as defined in) the Agreement in accordance with
Section 2.04 of the Agreement.
E. NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Amendment
to
Agreement. By their signatures hereto, each of the parties hereto hereby
agrees that the Agreement is hereby amended by amending and restating Section
7A.01(c) of the Agreement in its entirety to read as follows:
(c)
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
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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 year 2005 and for the
first quarter of fiscal 2006 until the earlier to occur of May 31, 2006 and
five
(5) Business Days after the filing thereof with the SEC;
2. Waiver.
By their
signatures hereto, each of the parties hereto waives 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 Early Amortization Event, event of
default, event of 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) the Reporting Default, (b) a breach of any representation
or
warranty in Section 5.01(1) or 5.02(j) of the Agreement resulting from or
arising out of any restatement, in connection with the audit conducted for
the
fiscal year ended October 2005, of any financial statements of NFC 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
or
derived information therefrom with respect to such periods or (c) the failure
of
NFC, as Servicer, to deliver the reports contemplated by, and due on or about
April 15, 2006 pursuant to, Section 3.06(a) and (b) of the Pooling and Servicing
Agreement (as defined in the Agreement) by April 15, 2006; provided that such
reports shall be delivered on or before May 31, 2006. 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 Section 7A.01(c), as
amended hereby or NFC's failure to deliver the reports referred to in the
immediately preceding sentence on or before May 31, 2006.
3. Extension.
The
Purchase Expiration Date is extended to May 26, 2006, or, if earlier, the date
specified in clause (ii) of the definition of Purchase Expiration Date in the
Agreement as originally executed.
4. Representations
and
Warranties. The Seller hereby represents and warrants to KHFC, Liberty
Street, BNS and Bank of America that, after giving effect to this Amendment,
no
Early Amortization Event has occurred and is now continuing, and NFC hereby
represents and warrants that, after giving effect to this Amendment, no Early
Amortization Event or Servicer Termination Event has occurred and is now
continuing.
5. 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.
6. Counterparts.
This
Amendment may he 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]
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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 SECURITIES CORPORATION, as Seller
By:
/s/ XXXXXXX
X.
XXXXX
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President & General Counsel
NAVISTAR
FINANCIAL CORPORATION,
as
Servicer
By:
/s/
XXXXXX X.
XXXXXXXXXXXXXX
Name: Xxxxxx
X. Xxxxxxxxxxxxxx
Title:
V.P. Field Operations
KITTY
HAWK FUNDING CORPORATION,
as
a
Conduit Purchaser for the KHFC Purchaser Group
By
: /s/
XXXX X.
XXXXXX
Name:
Xxxx X. Xxxxxx
Title: Vice
President
BANK
OF
AMERICA, NATIONAL ASSOCIATION,
as
Administrative Agent
By:
/s/ XXXXXX
XXX
XXXX
Name: Xxxxxx
Xxx Xxxx
Title:
Principal
BANK OF AMERICA, NATIONAL ASSOCIATION,
as
a
Committed Purchaser and Managing Agent for the KHFC Purchaser Group
By:
/s/ XXXXXX
XXX
XXXX
Name: Xxxxxx
Xxx Xxxx
Title:
Principal
X-000
XXX
XXXX
XX XXXX XXXXXX
as
a
Committed Purchaser and Managing Agent
for
the
Liberty Street Purchaser Group
By:
/s/ XXXXXX
LAST
Name: Xxxxxx
Last
Title: Managing
Director
LIBERTY
STREET FUNDING CORP.
as
Conduit Purchaser for the Liberty Street Purchaser Group
By:
/s/ XXXXXXX
X.
XXXXXX
Name: Xxxxxxx
X. Xxxxxx
Title: Vice
President
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