WAIVER NO. 4
WAIVER
NO. 4
This
Waiver No. 4 (this "Waiver"),
dated as of November 28, 2007, 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 teens 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 years 2005, 2006 and 2007, 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
years
2006, 2007 and 2008, 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) November
30, 2008 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, October 31, 2006 or October 31, 2007, of any financial
statements of Transferor or any of its affiliates for any period ending on
or
before November 30, 2008, or any reports, financial statements, certificates
or
other information containing similar information with respect to such periods,
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 each of the fiscal years of Transferor ended
October 31, 2005, October 31, 2006 and October 31, 2007, 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 (unless otherwise required to conform with
the
results of the audit or changes in GAAP), 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.
(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 (unless otherwise required to
conform
with the results of the audit or changes in GAAP), 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 consistent with the Parent's past practices; provided that,
in the
event a reconciliation from past practices to generally accepted accounting
principles in the preparation of such financial statements is available,
the
Parent shall also provide such reconciliation.
(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, 2007, 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, October 31, 2006 or October 31, 2007, as the case may be.
(d) As
soon as available, and in any event within 30 days after the end of each
month,
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 (unless
otherwise required to conform with the results of the audit or changes in
GAAP)
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 with the consent of the requisite parties under the
Purchase Agreement..
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.
<signature
pages follow>
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.
NAVISTAR
FINANCIAL CORPORATION
By: /s/
XXXX
X. XXXXXXXX, XX.
NAME: XXXX
X. XXXXXXXX, Xx.
TITLE: V.P.,
CFO & TREASURER
TRUCK
RETAIL ACCOUNTS CORPORATION
By: /s/
XXXX
X. XXXXXXXX, XX.
NAME: XXXX
X. XXXXXXXX, Xx.
TITLE: V.P.,
CFO & TREASURER
WAIVER
NO. 9
TO
RECEIVABLES PURCHASE AGREEMENT
THIS
WAIVER NO. 9
(this “Waiver”),
dated as
of November 28, 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”), JS Siloed Trust as assignee of Jupiter Securitization
Company LLC (“Trust”),
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, 2006 and
2007, 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, 2007 and 2008, 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) November 30, 2008 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, October 31, 2006 or October 31, 2007, of any financial
statements of Transferor or any of its affiliates for any period ending on
or
before November 30, 2008, 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. 4, 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, October 31, 2006 and October 31, 2007, 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 (unless otherwise required to conform with the
results of the audit or changes in GAAP), 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.
(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 (unless otherwise required to conform
with the results of the audit or changes in GAAP), 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 consistent with the Parent’s past practices; provided that, in
the
event a reconciliation from past practices to generally accepted accounting
principles in the preparation of such financial statements is available, the
Parent shall also provide such reconciliation.
(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, 2007, 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, October 31, 2006 or October 31, 2007, as the case may be.
(d) As
soon
as available, and in any event within 30 days after the end of each month,
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 (unless
otherwise required to conform with the results of the audit or changes in GAAP)
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).
Section
5. Conditions Precedent.
This Waiver shall become effective as of the date first above written upon
receipt by the Agent of (a) counterparts hereof duly executed by each of the
parties hereto, and (b) payment in immediately available funds of a fully earned
and nonrefundable waiver fee in the amount specified in the waiver fee letter
dated as of the date hereof by and between the Agent and the
Seller.
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.
<signature
pages follow>
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
JS
SILOED
TRUST
By: JPMorgan
Chase Bank, N.A., as Administrative Trustee
By:
/s/
XXXX
X.
ENGLISH
Name: XXXX
X.
ENGLISH
Title:
Vice President
JPMORGAN
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.
ENGLISH
Name: XXXX
X.
ENGLISH
Title:
Vice President
Exhibit
A
[Attached]
