exhibit10_5.htm


     

     

    AMENDMENT
      TO

     

    NOTE
      PURCHASE AGREEMENT

     

    THIS
      AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”) dated as
      of December 7,  2007, is entered into among Navistar Financial Retail
      Receivables Corporation (the “Seller”), Navistar Financial Corporation (“Servicer”), Kitty
      Hawk Funding Corporation, (“KHFC”), as a
      Conduit Investor, and Bank of America, National Association (“Bank of America”),
      as Agent, the Administrator and an Alternate Investor.

     

    RECITALS

     

    A. The
      Seller, the Servicer, KHFC and Bank of America are parties to that certain
      Note
      Purchase Agreement, dated as of February 27, 2006 (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. 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 to the following amendments to the Agreement:

     

    (a)             The
      Agreement is hereby amended by amending and restating Section 3.01 (a)(v) of
      the
      Agreement in its entirety to read as follows:

     

    “(v)
      except for those caused by the failure of NFC and its affiliates to deliver
      its
      financial statements and related financial information for the fiscal years
      ended October 31, 2005 or October 31, 2006, or for fiscal quarters ending
      January 31, April 30 and July 31 of 2006, or for the fiscal quarters ending
      January 31, April 30 and July 31 of 2007, in each case, prior to November 30,
      2008, the Seller (i) is not in violation of its Certificate of Incorporation
      or
      By-Laws and (ii) is not in breach or violation of any of the terms or provisions
      of, or with the giving of notice or lapse of time, or both, would be in default
      under, any contract, indenture, mortgage, deed of trust, loan agreement, note,
      lease, partnership agreement, or other agreement or instrument to which the
      Seller is a party or by which it may be bound or to which any of its properties
      or assets may be subject, except for such violations or defaults that would
      not
      have a Material Adverse Effect;”


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    (b) The
      Agreement is hereby amended by amending and restating Section 3.01 (b)(vi)
      of
      the Agreement in its entirety to read as follows:

     

    “(vi)
      except for those caused by the failure of NFC and its affiliates to deliver
      its
      financial statements and related financial information for the fiscal years
      ended October 31, 2005 or October 31, 2006, or for fiscal quarters ending
      January 31, April 30 and July 31 of 2006, or for the fiscal quarters ending
      January 31, April 30 and July 31 of 2007, in each case, prior to November 30,
      2008, NFC (i) is not in violation of its Certificate of Incorporation or By-Laws
      and (ii) is not in breach or violation of any of the terms or provisions of,
      or
      with the giving of notice or lapse of time, or both, would be in default under,
      any contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
      partnership agreement, or other agreement or instrument to which the Seller
      is a
      party or by which it may be bound or to which any of its properties or assets
      may be subject, except for such violations or defaults that would not have
      a
      Material Adverse Effect;”

     

    (c) The
      Agreement is hereby amended by amending and restating Section 5.02(c) of the
      Agreement 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 and Bank of America, 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 any provision in the
      Agreement, that an immediate Event of Default will occur if, without the need
      for the giving of any notices by any party or the passage of any grace period,
      the 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 Agent, each Conduit Investor and each Alternate, shall have provided
      a further waiver of the covenant violation described in this sentence on or
      before such date; and

     

    2. Waiver.
      By their
      signature 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 Event of Default, 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 breach of any representation or warranty in Section 3.01(a)(xii)
      or Section 3.01(b)(x) 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, 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 Sections 3.01(a)(v), 3.01(b)(vi) and 5.02(c), as amended
      hereby or any Servicer Default occurring as a result of 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. Representations
      and
      Warranties. The Seller hereby represents and warrants to KHFC and Bank of
      America that, after giving effect to this Amendment, no Event of Default has
      occurred and is now continuing, and NFC hereby represents and warrants that,
      after giving effect to this Amendment, no Event of Default or Servicer Default
      has occurred and is now continuing.

     

    4. 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.

     

    5. Conditions
      Precedent.
      The effectiveness of this Amendment is subject to the receipt of the fee
      specified in the fee letter, dated as of the date hereof.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


     

    6. 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.

     

    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]


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    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 RETAIL RECEIVABLES 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 Investor

     

    
      By:   
         /s/  PHILIP A. MARTONE

      Name:      
        Philip A. Martone

      Title:        
        Vice President

       

    

    BANK
      OF
      AMERICA, NATIONAL ASSOCIATION, 

    as
      Agent,
      Administrator and as an Alternate Investor

     

    
      By:   
         /s/  WILLEM VAN BEEK.

      Name:      
        Willem Van Beek

      Title:         
        Principal