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AMENDMENT,
WAIVER AND EXTENSION TO
AMENDED
AND RESTATED
CERTIFICATE
PURCHASE AGREEMENT
THIS
AMENDMENT, WAIVER AND EXTENSION TO AMENDED AND RESTATED
CERTIFICATE PURCHASE AGREEMENT (this “Amendment”)
dated as of December 7, 2007and being 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 LLC (f/k/a
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 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, the
fiscal quarters ending January 31, April 30 and July 31 of 2006,
the fiscal year ending October 2006, the fiscal quarters ending
January 31, April 30 and July 31, 2007, the fiscal year ending
October 2007, and the fiscal quarters ending January 31, April 30
and July 31 of 2008 on a timely basis (such failure, the
“Reporting
Default”).
Each of 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.
Amendments to
Agreement. By their signatures hereto, each of
the
parties
hereto hereby agrees that the Agreement is hereby amended as
follows:
(A)
Section
7A.01(c) of the Agreement is hereby amended and restated in its
entirety to read as follows:
(c)
(1) 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 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 years
2005, 2006 and 2007 and for the fiscal quarters ending January
31, April 30 and July 31 of 2006, for the fiscal quarters
ending January 31, April 30 and July 31 of 2007 and for the
fiscal quarters ending January 31, April 30 and July 31 of
2008 (such financial statements, collectively, the “Financial
Statements”) until the earlier to occur of
November 30, 2008 and five (5) Business Days after the filing
thereof with the SEC and (2) as soon as available but no later
than the due dates therefor prescribed in Section 4 of the
Fifth Waiver and Consent, dated as of November [_],2007 (the
“Fifth Waiver”)to the Amended and Restated Credit
Agreement dated as of July 1, 2005, among the Servicer, Bank
of America, and BNS, among others, each of the reports
referred to in Section 4 of the Fifth Waiver, provided,
however, that such reporting shall not be required so long as
the Servicer’s parent has filed all reports with the
Securities and Exchange Commission required pursuant to
Section 13 of the Exchange Act; provided further, however,
that each of the Seller and the Servicer, acknowledge and
agree that, notwithstanding and any provision in the
Agreement, that an immediate Early Amortization Event will
occur if, without the need for the giving of any notices by
any party or the passage of any grace period, each Managing
Agent shall not have received the Financial Statements by the
earlier of (i) November 30, 2008 and (ii) [five (5) Business
Days] after the filing of such Financial Statements with the
SEC, unless the Administrative Agent, each Managing Agent and
each Purchaser, shall have provided a further waiver of the
covenant violation described in this sentence on or before
such date.
(B)
The
definition of “Alternate Rate” set forth in Section
1.01 of the Agreement is hereby amended and restated in its
entirety to read as follows:
“Alternate Rate” for any Fixed Period for any
Funding Tranche means an interest rate per annum equal to 1.50% per
annum above
the Eurodollar Rate for such Fixed Period; provided,
however, that
in the case of
(i) any
Fixed Period existing on or after the first day of which a
Managing Agent shall have been notified by a Conduit Purchaser
or Liquidity Purchaser in its Purchaser Group or other Program
Support Provider that the introduction of or any change in or
in the interpretation of any law or regulation makes it
unlawful, or any central bank or other Governmental Authority
asserts that it is unlawful, for a Conduit Purchaser or its
Liquidity Purchaser or other Program Support
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