exhibit10_6.htm


     

    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 “ReportingDefault”).
      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 Provider to fund any Funding Tranche (based on the Eurodollar Rate)
      set
      forth above (and such


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    Conduit
      Purchaser or its Liquidity Purchaser or other Program Support Provider shall
      not
      have subsequently notified its Managing Agent that such circumstances no longer
      exist),

     

    (ii) any
      Fixed
      Period of one to (and including) 13 days,

     

    (iii) any
      Fixed
      Period relating to a Funding Tranche which is less than $1,000,000,
      and

     

    (iv) any
      Fixed
      Period with respect to which the Alternate Rate, for any reason, becomes
      applicable on notice to the Administrative Agent of less than three Business
      Days,

     

    the
“Alternate
      Rate” for
      each such Fixed Period shall be an interest rate per annum equal to the
      Corporate Base Rate in effect on each day of such Fixed Period. The “Alternate Rate” for
      any day on or after the occurrence of an Early Amortization Event shall be
      an
      interest rate equal to 2.0% perannum
      above the
      Corporate Base Rate in effect on such day.

     

    (C)            The
      definition of “Funding Rate” set forth in Section 1.01 of the Agreement is
      hereby amended and restated in its entirety to read as follows

     

    “Funding
      Rate” means,
      with respect to any Fixed Period and any Funding Tranche, (a) to the extent
      a
      Conduit Purchaser (or a RIC which is an assignee of such Conduit Purchaser)
      is
      funding such Funding Tranche during such Fixed Period through the issuance
      of
      Notes, its CP Rate, and (b) to the extent any Purchaser is not funding such
      Funding Tranche through the issuance of Notes, a rate per annum (expressed
      as a
      percentage and an interest yield equivalent and calculated on the basis of
      a
      360-day year and the actual days elapsed) equal to the Alternate Rate; provided
      that the Funding Rate shall be increased by 0.125% per annum in the event that
      NFC fails to file and deliver by March 31, 2008 the report on Form 10-K and
      financial statements for fiscal year ended October 31, 2007, and such increase
      shall remain in effect to and including the date on which NFC shall have timely
      filed a report 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.

     

    2.            Waiver.
      By their
      signatures hereto, each of the parties hereto waives (i)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, or October 31, 2006, of any financial statements
      of NFC or any of its affiliates for any


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    period
      ending on or before the expiration of the waiver contemplated herein, 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, April 15, 2007 and to be due April 15, 2008 pursuant
      to, Section 3.06(a) and (b) of the Pooling and Servicing Agreement (as defined
      in the Agreement) by April 15, 2006, April 15, 2007 and April 15, 2008,
      respectively, provided that each such report shall be delivered by the earlier
      of (i) November 30, 2008 and (ii) [five (5) Business Days] after the filing
      thereof with the SEC. 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, any Event of Default
      (as defined in the Pooling and Servicing Agreement) occurring as a result of
      the
      failure referred to in clause (c) without the consent of, or at the direction
      of, KHFC, Liberty Street, BNS or Bank of America, or NFC’s failure to deliver
      the reports referred to in the immediately preceding sentence on or before
      the
      earlier of (i) five (5) Business Days after the filing thereof with the SEC
      and
      (ii) November 30, 2008.

     

    3. Extension.
      The
      Purchase Expiration Date is extended to November [], 2008, 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 amended 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 amended 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. Conditions
      Precedent.
      The effectiveness of this Amendment is subject to the receipt of each fee
      specified in the fee letter, dated as of the date hereof.

     

    7. Counterparts.
      This
      Amendment may be 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.

     

    8. 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.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    9.           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]


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    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/  JOHN V.MULVANEY, SR.

      Name:      
        John V. Mulvaney, Sr.

      Title:        
        V.P., CFO & Treasurer

    

     

    NAVISTAR
      FINANCIAL CORPORATION, as Servicer

     

    
      By:   
         /s/  JOHN V.MULVANEY, SR.

      Name:      
        John V. Mulvaney, Sr.

      Title:        
        V.P., CFO & Treasurer

       

    

    KITTY
      HAWK FUNDING CORPORATION,

    as
      a
      Conduit Purchaser for the KHFC Purchaser Group

     

    
      By:   
         /s/  PHILIP A. MARTONE

      Name:      
        Philip A. Martone

      Title:        
        Vice President

       

    

    BANK
      OF
      AMERICA, NATIONAL ASSOCIATION, as Administrative Agent

     

    
      
        By:   
           /s/  WILLEM VAN BEEK.

        Name:       
          Willem Van Beek

        Title:         
          Principal

         

      

    

    BANK
      OF
      AMERICA, NATIONAL ASSOCIATION,

    as
      a
      Committed Purchaser and Managing Agent for the KHFC Purchaser Group

     

    
      
        By:   
           /s/  WILLEM VAN BEEK.

        Name:       
          Willem Van Beek

        Title:         
          Principal

      
                                                                 

    Purchaser
      Percentage: 50%

    Commitment:
      $400,0000,000


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    THE
      BANK
      OF NOVA SCOTIA,

    as
      a
      Committed Purchaser and Managing Agent for the Liberty Street Purchaser
      Group

     

    By:   
       /s/  NORMAN LAST

    Name:        Norman
      Last

    
      
        Title:         
          Managing Director

         

      
Purchaser
      Percentage: 50%

    Commitment:
      $400,0000,000

     

     

    LIBERTY
      STREET FUNDING LLC,

    as
      a
      Conduit Purchaser for the Liberty Street Purchaser Group

     

    By:    
/s/
      JILL
      A. GORDON

    Name:      Jill
      A. Gordon    

    Title:       
      Vice President