UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 12, 1999
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 333-62445 51-0337491
(State or other Jurisdiction (Commission File Number) (I.R.S. employer
of Incorporation) Identification No.)
2850 West Golf Road
Rolling Meadows, Illinois 60008
(Address of principal executive offices)
Registrant's telephone number, including area code: (847) 734-4275
<PAGE>
Item 5. Other Events
On November 12, 1999, the Registrant, a wholly-owned subsidiary of Navistar
Financial Corporation ("NFC"), purchased a pool of retail instalment sale
contracts for medium and heavy duty trucks, buses and trailers with an aggregate
outstanding principal balance as of October 1, 1999 of $533,279,698.52
(collectively, the "Receivables") from NFC for a purchase price equal to the
principal balance of the Receivables as of October 1, 1999.
The Registrant paid a portion of the purchase price of the Receivables from
the net cash proceeds of the sale of the Receivables described below and paid
the remainder with an intercompany advance from NFC.
Upon the transfer of the Receivables from NFC to the Registrant, the
Registrant immediately transferred an undivided interest in the Receivables to
Bank One, NA (Main Office Chicago), as Agent (the "Agent") for the benefit of
certain purchasers for a purchase price of $533,279,698.52. A portion of the
proceeds of the sale of the Receivables to the Agent were used to fund deposits
of $37,329,578.90 and $2,264,000.00 into a reserve account and a hedge account,
respectively, as credit support for the Receivables. The balance of the net cash
proceeds was paid to NFC as part of the purchase price for the Receivables.
Navistar Financial Retail Receivable Corporation will incur approximately
$500,000 of transaction fees and expenses relating to the sale of receivables.
Item 7: Financial Statements and Exhibits.
(c) Exhibits
Item Exhibit Index
See Attached Exhibit Index.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: December 17, 1999
Navistar Financial Retail Receivables Corporation
(Registrant)
By: R. Wayne Cain
Vice President and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit No.
Exhibit
10.1 Receivables Sale Agreement between NFC and the Registrant, dated as of
November 12, 1999
10.2 Receivables Purchase Agreement among the Registrant, NFC, Bank One, NA
(Main Office Chicago), International Securitization Corporation, Falcon
Asset Securitization Corporation, and the Financial Institutions party
thereto, dated as of November 12, 1999
<PAGE>
RECEIVABLES PURCHASE AGREEMENT
dated as of November 12, 1999
Among
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION, as Seller,
NAVISTAR FINANCIAL CORPORATION, as Servicer,
and
FALCON ASSET SECURITIZATION CORPORATION
INTERNATIONAL SECURITIZATION CORPORATION
as Companies,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Investors,
and
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent and as Securities Intermediary
<PAGE>
Page
ARTICLE I
PURCHASE ARRANGEMENTS 2
Section 1.1 Purchase of Purchaser Interests. 2
Section 1.2 Transfers and Assignments;
Custody of Receivables Files 2
Section 1.3 Payment Requirements 2
Section 1.4 Establishment of Designated Accounts 3
ARTICLE II
PAYMENTS AND COLLECTIONS 4
Section 2.1 General Settlement Procedures 4
Section 2.2 Withdrawals from Reserve Account 6
Section 2.3 Payment Recission 7
Section 2.4 Clean Up Call 7
Section 2.5 Monthly Report 8
Section 2.6 Deposits Net of Total Servicing Fee 8
Section 2.7 Investment Policy and Procedure 8
ARTICLE III
COMPANY FUNDING 10
Section 3.1 CP Costs. 10
Section 3.2 Payments of Allocated CP Costs 11
Section 3.3 Calculation of Costs 11
Section 3.4 Priority of Payments 11
ARTICLE IV
FINANCIAL INSTITUTION FUNDING 11
Section 4.1 Financial Institution Funding 11
Section 4.2 Yield Payments 12
Section 4.3 Selection and Continuation of
Tranche Periods 12
Section 4.4 Financial Institution Discount Rates 12
Section 4.5 Suspension of the LIBO Rate 13
ARTICLE V
REPRESENTATIONS AND WARRANTIES 13
Section 5.1 Representations and Warranties of
Seller Parties 13
Section 5.2 Financial Institution Representations
and Warranties 16
ARTICLE VI
CONDITIONS OF PURCHASES 16
Section 6.1 Conditions Precedent to Purchase 17
ARTICLE VII
COVENANTS 17
Section 7.1 Affirmative Covenants of the Seller
Parties 17
Section 7.2 Covenants of the Servicer 23
Section 7.3 Covenants of the Agent 23
ARTICLE VIII
ADMINISTRATION AND COLLECTION 23
Section 8.1 General Duties of the Servicer 23
Section 8.2 Collection of Receivables Payments 24
Section 8.3 Realization Upon Liquidating
Receivables 25
Section 8.4 Maintenance of Insurance Policies 26
Section 8.5 Maintenance of Security Interests
in Vehicles 26
Section 8.6 Total and Supplemental Servicing
Fees; Payment of Certain
Expenses by Servicer 26
Section 8.7 Monthly Advances 26
Section 8.8 Additional Deposits 27
Section 8.9 Annual Statement as to Compliance 27
Section 8.10 Annual Independent Accountants'
Report 27
Section 8.11 Assignment of Administrative
Receivables and Warranty
Receivables 28
Section 8.12 Collection Account 28
Section 8.13 Delegation of Duties 29
Section 8.14 Servicer Not to Resign 29
Section 8.15 Agent to Act; Appointment of
Successor 29
Section 8.16 Merger or Consolidation of or
Assumption of the Obligations
of, the Servicer 30
ARTICLE IX
SERVICER DEFAULTS 30
Section 9.1 Servicer Defaults 30
Section 9.2 Remedies 31
ARTICLE X
INDEMNIFICATION 33
Section 10.1 Indemnities by the Seller Parties 33
Section 10.2 Increased Cost and Reduced Return 36
Section 10.3 Other Costs and Expenses 36
ARTICLE XI
THE AGENT 37
Section 11.1 Authorization and Action 37
Section 11.2 Delegation of Duties 37
Section 11.3 Exculpatory Provisions 37
Section 11.4 Reliance by Agent 38
Section 11.5 Non-Reliance on Agent and Other
Purchasers 38
Section 11.6 Reimbursement and Indemnification 38
Section 11.7 Agent in its Individual Capacity 39
Section 11.8 Successor Agent 39
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS 39
Section 12.1 Assignments 39
Section 12.2 Participations 40
ARTICLE XIII
LIQUIDITY FACILITY 40
Section 13.1 Transfer to Financial Institutions 41
Section 13.2 Transfer Price Reduction Yield 41
Section 13.3 Payments to any Company 41
Section 13.4 Limitation on Commitment to Purchase
from any Company 41
Section 13.5 Defaulting Financial Institutions 42
Section 13.6 Terminating Financial Institutions 42
ARTICLE XIV
MISCELLANEOUS 43
Section 14.1 Waivers and Amendments 43
Section 14.2 Notices 44
Section 14.3 Ratable Payments 45
Section 14.4 Protection of Ownership Interests
of the Purchasers 45
Section 14.5 Confidentiality 46
Section 14.6 Bankruptcy Petition 46
Section 14.7 Limitation of Liability 46
Section 14.8 CHOICE OF LAW 47
Section 14.9 CONSENT TO JURISDICTION 47
Section 14.10 WAIVER OF JURY TRIAL 47
Section 14.11 Integration; Binding Effect;
Survival of Terms 47
Section 14.12 Counterparts; Severability;
Section References 48
Section 14.13 Bank One Roles 48
Section 14.14 Characterization 48
Section 14.15 Non-Recourse Obligations 49
<PAGE>
Exhibit I Definitions
Exhibit II Places of Business of the Seller Parties;
Locations of Records; Federal Employer
Identification Number(s)
Exhibit III Form of Assignment Agreement
Exhibit IV Form of Contract(s)
Exhibit V Form of Monthly Report
<PAGE>
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement dated as of November 12, 1999, is
among Navistar Financial Retail Receivables Corporation, a Delaware corporation
("Seller" or "NFRRC"), Navistar Financial Corporation, a Delaware corporation
("NFC"), as Servicer (the Servicer together with the Seller, the "Seller
Parties" and each a "Seller Party"), the funding entities listed on Schedule A
to this Agreement (together with their respective successors and assigns
hereunder, the "Financial Institutions"), International Securitization
Corporation ("ISC"), Falcon Asset Securitization Corporation ("FALCON") (ISC and
FALCON each singly, a "Company" and collectively, the "Companies"), and 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 as Securities Intermediary. Unless defined elsewhere herein,
capitalized terms used in this Agreement shall have the meanings assigned to
such terms in Exhibit I.
PRELIMINARY STATEMENTS
Seller desires to transfer and assign an undivided percentage ownership
interest in a specified pool of Receivables (as defined herein) to the
Purchasers on the date of this Agreement (as defined herein) which it acquired
from NFC, and the Purchasers desire to acquire such interest on the date of this
Agreement, in each case subject to the terms of this Agreement. In addition, the
Financial Institutions have agreed to provide a liquidity facility to the
Companies in accordance with the terms hereof.
The Seller, the Companies, the Financial Institutions, and Bank One
desire to appoint NFC as the Servicer under this Agreement and NFC desires to
act as Servicer, in consideration of the fees and other benefits set forth in
this Agreement.
Bank One, NA (Main Office Chicago), has been requested and is willing
to act as Agent on behalf of the Companies and the Financial Institutions in
accordance with the terms hereof.
<PAGE>
ARTICLE 1 PURCHASE ARRANGEMENTS
ARTICLE 1.1 Purchase of Purchaser Interests.
ARTICLE 1.2
(a) Upon the terms and subject to the conditions hereof, on the date hereof
Seller hereby sells and assigns the Purchaser Interests to the Agent for the
benefit of the Companies.
(a) The aggregate Purchase Price for the Purchaser Interests conveyed hereunder
shall be $533,279,698.52, which is payable by wire transfer of immediately
available funds to a bank account of Seller designated in writing by Seller to
the Agent.
ARTICLE 1.1 Transfers and Assignments; Custody of Receivables Files .
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ARTICLE 1.2
(a) On the date hereof, the Seller shall deposit the Initial Reserve Account
Deposit into the Reserve Account.
(a) Within two Business Days after the date hereof, the Servicer shall cause to
be deposited into the Collection Account all Collections (from whatever source)
on or with respect to Receivables received by the Servicer on or after the
Cutoff Date and on or prior to the date hereof.
(a) In connection with the sale, transfer and assignment of Receivables to the
Seller from NFC pursuant to the Sale Agreement, the Seller, simultaneously with
the execution and delivery of this Agreement, shall enter into the Custodian
Agreement with the Custodian, pursuant to which the Seller shall revocably
appoint the Custodian, and the Custodian shall accept such appointment, to act
as Custodian. (b) (c) The Purchasers acknowledge and agree that (a) the rights
pursuant to the NITC Purchase Obligations are personal to NFC, and only the
proceeds of such rights are being assigned to the Purchasers pursuant to the
terms hereof, (b) the Purchasers are not, and are not intended to be, third
party beneficiaries of such rights, and (c) accordingly such rights are not
exercisable by, enforceable by or for the benefit of, or preserved for the
benefit of, the Purchasers. ARTICLE 1.2 Payment Requirements . All amounts to be
paid or deposited by the Seller or the Servicer to the Agent or any Purchaser
pursuant to any provision of this Agreement shall be paid or deposited in
immediately available funds in accordance with the terms hereof no later than
1:00 p.m. (Chicago time) on the day when due; provided however, that (i) with
respect to any intrabank transfer from any Designated Account to the Agent, the
Purchasers or another Designated Account, it will be sufficient if the Servicer
shall provide the Agent with notice that such transfer should be made, no later
than 12:30 p.m. (Chicago time) on the day when due, and (ii) with respect to any
transfer into the Collection Account, it shall be sufficient if such transfer is
received by the Agent at any time on the day it is due, it being understood that
if such transfer into the Collection Account is received by the Securities
Intermediary after its internal payment deadline, Investment Earnings may not be
credited to the Collection Account for that night for such late arriving funds.
Such amounts shall be paid to the Agent, at 1 Bank One Plaza, Chicago, Illinois
60670 until otherwise notified by the Agent. All computations of Yield, per
annum fees calculated as part of any CP Costs, per annum fees hereunder and per
annum fees under the Fee Letter shall be made on the basis of a year of 360 days
for the actual number of days elapsed, provided however, that computations of
interest at the Base Rate shall be made on the basis of a year of 365 days or
366 days, as applicable, for the actual number of day elapsed. If any amount
hereunder shall be payable on a day which is not a Business Day, such amount
shall be payable on the next succeeding Business Day.
ARTICLE 1.1 Establishment of Designated Accounts .
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ARTICLE 1.2
(a) The Servicer, for the benefit of the Agent and the Purchasers, shall
establish and maintain in the name of the Agent for the benefit of the
Purchasers, an account titled "Navistar Financial Collection Account" (the
"Collection Account"), an account titled "Navistar Financial Hedge Account" (the
"Hedge Account"), and an account titled "Navistar Financial Reserve Account"
(the "Reserve Account"), each of which will be an Eligible Account bearing a
designation that the funds deposited therein are held for the benefit of the
Agent and Purchasers. The Designated Accounts and any Eligible Investments on
deposit in the Designated Accounts shall be subject to the exclusive custody and
control of the Agent and the Agent shall have sole signature authority with
respect thereto.
(a) The Agent when requested by the Servicer shall invest the funds in the Hedge
Account and the Reserve Account in Eligible Investments selected by the
Servicer, held in the name of the Agent for the benefit of the Purchasers. Funds
deposited in the Reserve Account shall be invested in Eligible Investments which
mature on or prior to the next Settlement Date. Funds deposited in the Hedge
Account shall be invested in Eligible Investments which mature on or prior to
the next Hedge Determination Date. Any income or other gain from such Eligible
Investments shall be retained in the Hedge Account and the Reserve Account, as
applicable, to the extent the amount on deposit is less than the Specified Hedge
Account Balance or Specified Reserve Account Balance, respectively. Any
Investment Earnings on funds in the Hedge Account not required to be retained in
the Hedge Account pursuant to the preceding sentence shall be paid on each
Settlement Date to the Seller. Any Investment Earnings on funds in the Reserve
Account not required to be retained in the Reserve Account pursuant to the
second preceding sentence shall be deposited into the Collections Account one
Business Day prior to each Settlement Date and shall be treated as a part of
Collected Interest. The Agent shall determine the Specified Hedge Account
Balance Requirement for the Hedge Account for each Hedge Determination Date (as
provided in the Hedging Letter) as the Servicer shall determine the Specified
Reserve Account Balance for each Settlement Date. (b) (c) The Agent when
requested by the Servicer shall invest the funds in the Collection Account in
Eligible Investments selected by the Servicer, held in the name of the Agent for
the benefit of the Purchasers, which shall mature no later than the Business Day
preceding the Settlement Date. Any income or other gain from such Eligible
Investments in the Collection Account shall be retained in the Collection
Account and shall be treated as a part of Collected Interest for the Monthly
Period related to such Settlement Date. (d) (e) (f)
ARTICLE 2 PAYMENTS AND COLLECTIONS
ARTICLE 1.1 General Settlement Procedures .
ARTICLE 1.2
(a) The Servicer shall remit to the Collection Account all Collections,
including all Insurance Proceeds, all Liquidation Proceeds, proceeds from any
Dealer Liability, and proceeds from any NITC Purchase Obligations, within two
Business Days after receipt thereof. On or before each Determination Date, with
respect to the preceding Monthly Period and the related Settlement Date, the
Servicer shall calculate the Total Available Amount, Collected Interest,
Collected Principal, the Total Servicing Fee, the amount of Collected Interest
previously applied to the payment of Yield pursuant to Section 4.2 and (if the
Agent has provided the information specified in Section 3.3) all other amounts
required to determine the amounts to be deposited in or paid from each of the
Collection Account, the Reserve Account, and the Hedge Account on the next
succeeding Settlement Date. If at any time the Seller receives any Collections,
the Seller shall promptly pay such Collections to the Servicer and, at all times
prior to such payment, such Collections shall be held in trust by the Seller for
the exclusive benefit of the Purchasers and the Agent.
(a) On or before the day preceding each Settlement Date, the Servicer shall
instruct the Securities Intermediary (as defined in Section 2.7) to make the
following withdrawals, deposits, transfers and distributions in the amounts set
forth in the Monthly Report for such Settlement Date: (b) (i) from the
Collection Account to the Servicer, in immediately available funds,
reimbursement of Outstanding Monthly Advances pursuant to Section 8.7, payments
of Liquidation Expenses with respect to Receivables which became Liquidating
Receivables during the related Monthly Period pursuant to Section 8.3 and any
unpaid Liquidation Expenses from prior periods; and
(i) from the Reserve Account to the Collection Account, the lesser of (A) the
amount of cash or other immediately available funds therein on the day preceding
such Settlement Date and (B) the amount, if any, by which (I) the sum of the
Basic Servicing Fee with respect to the preceding Monthly Period, the unpaid
Yield accrued during such Monthly Period in respect of all Tranches outstanding
during such Monthly Period, the Allocated CP Costs accrued during such Monthly
Period, the Facility Fee with respect to such Monthly Period, and the Principal
Distributable Amount for such Settlement Date, exceeds (II) the Available Amount
for such Settlement Date (less any amounts thereof previously applied to the
payment of Yield pursuant to Section 4.2).
-----------
(a) On each Settlement Date, the Agent at the request of the Servicer shall
apply amounts on deposit in the Collection Account, as follows:
(b)
(i) first, to the extent of the Total Available Amount, to pay the Replacement
Servicing Fee to the Servicer (if the Servicer is not the Seller or an Affiliate
of the Seller), with respect to the related Monthly Period,
(i) second, to the reimbursement of the Agent's costs of collection and
enforcement of this Agreement,
(i) third, to the extent of the Total Available Amount (less any amounts
applied as described in clauses (i) and (ii) above), to pay the Agent
(for the benefit of the Purchasers) in accordance with the terms of
Section 4.2, an amount equal to the accrued and unpaid Yield, Allocated
CP Costs for each Purchaser Interest and Facility Fee with respect to
the related Monthly Period in respect of all Purchaser Interests
outstanding during such Monthly Period,
(i) fourth, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2 and the applications described in clauses (c)(i) through (iii)
above), to pay to the Servicer the Total Servicing Fee (if the Servicer
is the Seller or an Affiliate of the Seller), with respect to the
related Monthly Period,
(i) fifth, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2 and the applications described in clauses (c)(i) through (iv)
above), to pay to the Agent for distribution to the Purchasers, an
amount equal to the Principal Distributable Amount for such Settlement
Date to be applied to reduce the Capital of the Purchaser Interests in
the priority described in Section 3.4,
(i) sixth, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2 and the applications described in clauses (c)(i) through (v) above)
to pay to the Hedge Account, an amount equal to the Hedge Distributable
Amount,
(i) seventh, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2, and the applications described in clauses (c)(i) through (vi)
above), to pay to the Reserve Account, an amount equal to the excess,
if any, of the Specified Reserve Account Balance over the amount of
funds then on deposit in the Reserve Account.
(i) eighth, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2, and the applications described in clauses (c)(i) through (vii)
above), for payment of all other Obligations which are payable on or
before such Settlement Date to the Agent or the Purchasers and which
have not otherwise been paid (except for Warranty Payments and Optional
Purchase Proceeds),
(i) ninth, to the extent of the Total Available Amount (less any amounts
thereof previously applied to the payment of Yield pursuant to Section
4.2, and the applications described in clauses (c)(i) through (viii)
above), the remaining balance, if any, to the Seller, unless there is a
Servicer Default, at which time the remaining balance shall be used to
reduce the Capital and any other Aggregate Unpaids.
(a) All payments by or on behalf of an Obligor with respect to a Receivable
(excluding Supplemental Servicing Fees) shall be applied (i) first to reduce
Outstanding Monthly Advances, if any, with respect to such Receivable, as
described in Section 8.7, (ii) second, to the Scheduled Payment for such Monthly
Period with respect to such Receivable, and (iii) third, the remainder shall
constitute, with respect to such Receivable, a Full Prepayment or Partial
Prepayment. (b) (c) A Partial Prepayment made on a Receivable is applied to
reduce the final Scheduled Payment and will thereafter, to the extent the
Partial Prepayment exceeds the final Scheduled Payment, reduce Scheduled
Payments in reverse chronological order beginning with the penultimate Scheduled
Payment. The Rebate related to such Partial Prepayment will reduce the final
Scheduled Payment and will thereafter, to the extent the Rebate exceeds the
final Scheduled Payment, reduce Scheduled Payments in reverse chronological
order beginning with the penultimate Scheduled Payment.
ARTICLE 1.1 Withdrawals from Reserve Account .
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ARTICLE 1.2
(a) If, on the last day of any Tranche Period, the amount of Collections on
deposit in the Collection Account allocable to interest or Prepayment Surplus is
insufficient to pay the amount of accrued and unpaid Yield on such day, the
Servicer shall instruct the Securities Intermediary to, and the Securities
Intermediary shall, withdraw from the Reserve Account and deposit into the
Collection Account the lesser of the amount on deposit therein and the amount of
such insufficiency. The Servicer shall instruct the Securities Intermediary to
make, and the Securities Intermediary shall make, the withdrawals from the
Reserve Account required pursuant to Sections 1.4(b) and 2.1(b)(ii). On each
Settlement Date, to the extent that the funds in the Reserve Account exceed the
Specified Reserve Account Balance and so long as no Servicer Default shall have
occurred and be continuing, the Servicer may, by request of the Securities
Intermediary, withdraw the amount of such excess from the Reserve Account and
distribute the same to the Seller. Upon the occurrence of a Servicer Default,
the Servicer shall request the Securities Intermediary to withdraw, and the
Securities Intermediary shall withdraw, all amounts on deposit in the Reserve
Account for application in accordance with Section 2.1(c). To the extent that
any funds remain in the Reserve Account after the Aggregate Unpaids have been
indefeasibly reduced to zero, such funds shall be withdrawn and distributed to,
or as directed by, the Seller. Each Monthly Report shall specify the amount, if
any, which is scheduled to be withdrawn from the Reserve Account and distributed
to the Seller on the next succeeding Settlement Date.
(a) If the Servicer, pursuant to Section 8.7, determines on any Settlement Date
that it is required to make a Monthly Advance and does not do so from its own
funds, the Servicer shall instruct the Securities Intermediary to withdraw, and
the Securities Intermediary shall withdraw, funds from the Reserve Account and
deposit them in the Collection Account to cover any shortfall. Such payment
shall be deemed to have been made by the Servicer pursuant to Section 2.1 for
purposes of making distributions pursuant to this Agreement, but shall not
otherwise satisfy the Servicer's obligation to deliver the amount of the Monthly
Advances to the Collection Account, and the Servicer shall within two Business
Days replace any funds in the Reserve Account so used. The Servicer shall not be
entitled to reimbursement for any such deemed Monthly Advances unless and until
the Servicer shall have replaced such funds in the Reserve Account.
ARTICLE 1.1 Payment Recission . No payment of any of the Aggregate Unpaids shall
be considered paid or applied hereunder to the extent that, at any time, all or
any portion of such payment or application is rescinded by application of law or
judicial authority, or must otherwise be returned or refunded for any reason.
Seller shall remain obligated for the amount of any payment or application so
rescinded, returned or refunded, and shall promptly pay to the Agent (for
application to the Person or Persons who suffered such recission, return or
refund) the full amount thereof, plus the Default Fee from the date of any such
recission, return or refunding.
ARTICLE 1.1 Clean Up Call . As of the last day of any Monthly Period as of which
the Aggregate Capital is 10% or less of the Initial Aggregate Receivables
Balance, the Servicer shall have the option to purchase all (but not less than
all) of the Purchaser Interests (the "Clean-up Call"). To exercise such option,
the Servicer shall provide the Agent with not less than 10 Business Days' prior
written notice of its intention to do so (the "Clean-up Call Notice"). On or
before the day preceding the related Settlement Date, the Servicer shall deposit
in the Collection Account an amount equal to the aggregate Administrative
Purchase Payments for the Receivables (including Liquidating Receivables),
included in the Purchaser Interest (less the Liquidation Expenses to be incurred
in connection with the recovery thereof). The foregoing amounts (the "Optional
Purchase Proceeds") shall be paid by the Servicer into the Collection Account
for distribution to the Agent and the Purchasers in accordance with Section 2.1.
ARTICLE 1.1 Monthly Report Not later than 10:00 a.m. (Chicago, Illinois time) on
each Determination Date, the Servicer shall deliver to the Agent a Monthly
Report with respect to the immediately preceding Monthly Period, executed by any
Authorized Officer of the Servicer and, unless the Agent has failed to provide
timely notification to the Seller of the aggregate amount of Allocated CP Costs
for the applicable Accrual Period as required in Section 3.3 hereof, containing
all information necessary for making the calculations, withdrawals, deposits,
transfers and distributions required by this Article II.
ARTICLE 1.1 Deposits Net of Total Servicing Fee . Any provision herein to the
contrary notwithstanding, for so long as (i) NFC is the Servicer hereunder and
(ii) no Servicer Default has occurred and is continuing, the deposits into the
Collection Account pursuant to Section 2.1(a) may be made net of the Total
Servicing Fee to be distributed to the Servicer pursuant to Sections 2.1(c)(i)
and (c)(iii) (so long as Collected Interest not yet distributed is sufficient
therefor). Nonetheless, the Servicer shall account for the Total Servicing Fee
in the Monthly Report as if such amount had been deposited into the Collection
Account and/or transferred separately.
ARTICLE 1.1 Investment Policy and Procedure . Investments in Eligible
Investments shall be made in the name of the Agent, and such investments shall
not be sold or disposed of prior to their maturity. Bank One, NA (Main Office
Chicago) shall be the initial "securities intermediary" (together with its
permitted successors and assigns, the "Securities Intermediary") within the
meaning of Section 8-102 of the UCC in effect in the State of Illinois. If the
Securities Intermediary shall be a Person other than the Bank One, the Servicer
shall obtain the express agreement of Bank One to the obligations of the
Securities Intermediary set forth in this Section 2.7.
(a) With respect to the Designated Account Property, the Securities Intermediary
agrees, by its acceptance hereof, that:
(b)
(i) The Designated Accounts are accounts to which Financial Assets will be
credited and are "securities accounts" within the meaning of Section
8-501 of the UCC.
(i) All securities or other property underlying any Financial Assets
credited to the Designated Accounts shall be registered in the name of
the Securities Intermediary, indorsed to the Securities Intermediary
or in blank or credited to another securities account maintained in the
name of the Securities Intermediary and in no case will any Financial
Asset credited to any of the Designated Accounts be registered in the
name of the Agent, the Financial Institutions, any Company, the
Servicer or the Seller, payable to the order of the Agent, the
Financial Institutions, any Company, the Servicer or the Seller or
specially indorsed to the Agent, the Financial Institutions, any
Company, the Servicer or the Seller except to the extent the foregoing
have been specially indorsed to the Securities Intermediary or in
blank.
(i) All property delivered to the Securities Intermediary pursuant to this
Agreement will be promptly credited to the appropriate Designated
Account as directed by the Servicer or as otherwise provided herein.
(i) Each item of property (whether investment property, Financial Asset,
security, instrument or cash) credited to a Designated Account shall be
treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the Illinois UCC.
(i) If at any time the Securities Intermediary shall receive any order from
the Agent directing transfer or redemption of any Financial Asset
relating to the Securities Accounts, the Securities Intermediary shall
comply with such entitlement order without further consent by the
Financial Institutions, any Company, the Servicer, the Seller or any
other Person.
(i) The Designated Accounts shall be governed by the laws of the State of
Illinois, regardless of any provision in any other agreement. For
purposes of the UCC, Illinois shall be deemed to be the Securities
Intermediary's jurisdiction and the Designated Accounts (as well as the
Securities Entitlements related thereto) shall be governed by the laws
of the State of Illinois.
(i) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with
any other Person relating to the Designated Accounts and/or any
Financial Assets credite thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section 8-102(a) (8) of
the Illinois UCC) of such other Person and the Securities Intermediary
has not entered into, and until the termination of this Agreement will
not enter into, any agreement with the Financial Institutions, any
Company, the Seller, the Servicer o the Agent purporting to limit or
condition the obligation of the Securities Intermediary to comply with
entitlement orders as set forth in Section 2.7(a)(v) above.
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(i) Except for the claims and interest of the Agent, the Financial
Institutions, and the Companies in the Designated Accounts, the
Securities Intermediary knows of no claim to, or interest in, the
Designated Accounts or in any Financial Asset credited thereto. If any
other person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Designated Accounts or in any Financial
Asset carried therein, the Securities Intermediary will promptly notify
the Agent, the Financial Institutions, each Company, and the Servicer
thereof.
(i) The Securities Intermediary will promptly send copies of all
statements, confirmations and other correspondence concerning the
Designated Accounts and/or any Designated Account Property
simultaneously to each of the Servicer and the Agent at the addresses
set forth in the signature pages hereof.
(a) The Servicer shall have the right, revocable by the Agent (or by the
Financial Institutions and the Companies with the consent of the Agent) to
instruct the Agent to make withdrawals and payments from the Designated Accounts
for the purpose of permitting the Servicer to carry out its duties hereunder or
permitting the Agent to carry out its duties hereunder. (b) (c) The Agent shall
possess all right, title and interest in and to all funds on deposit from time
to time in the Designated Accounts and in all proceeds thereof (except
Investment Earnings on the Hedge Account). Except as otherwise provided herein,
the Designated Accounts shall be under the sole dominion and control of the
Agent for the benefit of the Purchasers. (d) (e) The Servicer shall not direct
the Securities Intermediary to make any investment of any funds or to sell any
investment held in any of the Designated Accounts unless the security interest
granted and perfected in such account shall continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Agent to make
any such investment or sale, if requested by the Securities Intermediary, the
Servicer shall deliver to the Securities Intermediary an opinion of counsel,
acceptable to the Securities Intermediary, to such effect.
ARTICLE 1.1 Default Fees. If any Person fails to pay any of the Obligations when
due, such Person agrees to pay, on demand, the Default Fee in respect thereof
until paid; provided, however, that if any such Person cannot meet its payment
obligations due solely to any Company's failure to provide the information
regarding Allocated CP Costs necessary to meet those payment obligations, no
Default Fee will be payable. Notwithstanding the foregoing, no provision of this
Agreement or the Fee Letter shall require the payment or permit the collection
of any amounts hereunder in excess of the maximum permitted by applicable law.
ARTICLE 1 COMPANY FUNDING
ARTICLE 1.1 CP Costs. Seller shall pay Allocated CP Costs with respect to the
Capital associated with each Purchaser Interest of a Company for each day that
any Capital in respect of such Purchaser Interest is outstanding. Each Purchaser
Interest held by a Company and funded substantially with Pooled Commercial Paper
will accrue CP Costs each day on a pro rata basis, based upon the percentage
share the Capital in respect of such Purchaser Interest represents in relation
to all assets held by such Company and funded substantially with Pooled
Commercial Paper.
ARTICLE 1.1 Payments of Allocated CP Costs . On each Settlement Date, Seller
shall pay to the Companies an aggregate amount equal to all accrued and unpaid
Allocated CP Costs in respect of the Capital associated with all Purchaser
Interests of the Companies for the immediately preceding Accrual Period in
accordance with Article II.
ARTICLE 1.1 Calculation of Costs . On or before the second Business Day
immediately following the last day of each Accrual Period, at the Seller's
request each Company shall deliver to the Seller a written estimate of the
aggregate amount of Allocated CP Costs expressed as a per annum rate for each
Company for the applicable Accrual Period. On or before the fifth Business Day
immediately following each Accrual Period, each Company shall deliver to the
Seller a final written report of the foregoing aggregate amount of Allocated CP
Costs for the applicable Accrual Period.
ARTICLE 1.1 Priority of Payments . All distributions of Total Available Amount
pursuant to clause (iv) of Section 2.1(c) shall be paid by the Agent to or for
the benefit of ISC to reduce the outstanding Capital of its Purchaser Interest
until such time as such Capital has been reduced to zero. Except as provided in
the preceding sentence, all distributions to the Agent under any clause of
Section 2.1(c) or any other provision of this Agreement in respect of amounts
owing to the Agent and the Purchasers shall be allocated ratably among all
applicable Persons in accordance with the amounts owing to each such Person
pursuant to such clause or other provision.
ARTICLE 1 FINANCIAL INSTITUTION FUNDING
ARTICLE 1.1 Financial Institution Funding . Each Purchaser Interest of the
Financial Institutions shall accrue Yield for each day during its Tranche Period
at either the LIBO Rate or the Base Rate in accordance with the terms and
conditions hereof. Until Seller gives notice to the Agent of another Discount
Rate in accordance with Section 4.4, the initial Discount Rate for any Purchaser
Interest transferred to the Financial Institutions pursuant to the terms and
conditions hereof shall be the Base Rate. If the Financial Institutions acquire
by assignment from a Company any Purchaser Interest pursuant to Article XIII,
the Agent or the Financial Institutions shall provide written notice of such
assignment to the Seller Parties pursuant to the terms of Section 13.1 as soon
as reasonably practicable and in any event not later than the day on which such
assignment is made, and each Purchaser Interest so assigned shall each be deemed
to have a new Tranche Period commencing on the date of any such assignment.
ARTICLE 1.1 Yield Payments . On the last day of the relevant Tranche Period in
respect of each Purchaser Interest of the Financial Institutions, Seller shall
pay to the Agent (for the benefit of the Financial Institutions) an aggregate
amount equal to the accrued and unpaid Yield for the entire Tranche Period of
each such Purchaser Interest in accordance with Article II. The obligation of
Seller to pay the Yield amounts set forth in this Section 4.2 shall be payable
solely from Collections deposited in the Collection Account allocable to
interest or Prepayment Surplus and from amounts withdrawn from the Reserve
Account pursuant to Section 2.2.
ARTICLE 1.1 Selection and Continuation of Tranche Periods .
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ARTICLE 1.2
(a) With consultation from (and approval by) the Agent, Seller shall from time
to time request Tranche Periods for the Purchaser Interests of the Financial
Institutions, provided that, if at any time the Financial Institutions shall
have a Purchaser Interest, Seller shall always request Tranche Periods such that
at least one Tranche Period shall end on each Settlement Date.
(a) Seller or the Agent, upon notice to and consent by the other received at
least three (3) Business Days prior to the end of a Tranche Period (the
"Terminating Tranche") for any Purchaser Interest, may, effective on the last
day of a Terminating Tranche: (i) divide any such Purchaser Interest into
multiple Purchaser Interests, (ii) combine any such Purchaser Interest with one
or more other Purchaser Interests that have a Terminating Tranche ending on the
same day as such Terminating Tranche, or (iii) combine any such Purchaser
Interest with new Purchaser Interests to be purchased on the day such
Terminating Tranche ends, provided, that in no event may a Purchaser Interest of
a Company be combined with a Purchaser Interest of the Financial Institutions.
ARTICLE 1.1 Financial Institution Discount Rates . Seller may select the LIBO
Rate or the Base Rate for each Purchaser Interest of the Financial Institutions.
Seller shall by 11:00 a.m. (Chicago time): (i) at least three (3) Business Days
prior to the expiration of any Terminating Tranche with respect to which the
LIBO Rate is being requested as a new Discount Rate and (ii) at least one (1)
Business Day prior to the expiration of any Terminating Tranche with respect to
which the Base Rate is being requested as a new Discount Rate, give the Agent
irrevocable notice of the new Discount Rate for the Purchaser Interest
associated with such Terminating Tranche. The Seller hereby notifies the Agent
that, in the event of any assignment of a Purchaser Interest to a Financial
Institution pursuant to Section 4.1, that (i) the Seller requests the LIBO Rate
for such Purchaser Interest, (ii) the initial Tranche Period for such LIBO Rate
shall be 30 days and (iii) such initial Tranche Period shall commence on the
earlier of (i) the later of (x) the third Business Day following the date on
which the Agent or a Financial Institution delivers a notice pursuant to Section
4.1 and (y) the date of such assignment and (ii) the second Business Day
following the date of such assignment.
ARTICLE 1.1 Suspension of the LIBO Rate . If any Financial Institution notifies
the Agent that it has determined that funding its Pro Rata Share of the
Purchaser Interests of the Financial Institutions at a LIBO Rate would violate
any applicable law, rule, regulation, or directive of any governmental or
regulatory authority, whether or not having the force of law, or that (i)
deposits of a type and maturity appropriate to match fund its Purchaser
Interests at such LIBO Rate are not available or (ii) such LIBO Rate does not
accurately reflect the cost of acquiring or maintaining a Purchaser Interest at
such LIBO Rate, then the Agent shall suspend the availability of such LIBO Rate
and require Seller to select the Base Rate for any Purchaser Interest accruing
Yield at such LIBO Rate.
ARTICLE 1 REPRESENTATIONS AND WARRANTIES
ARTICLE 1.1 Representations and Warranties of Seller Parties . As of the date
hereof (or with respect to representations and warranties that speak expressly
as of another date, then as of such other date), then as of such other date,
each Seller Party hereby represents and warrants to the Agent and the
Purchasers, as to itself, that:
(a) Corporate Existence and Power. Such Seller Party is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation, and is duly qualified to do business and is in good standing as a
foreign corporation, and has and holds all corporate power and all governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted. (b) (c) Power
and Authority; Due Authorization Execution and Delivery. The execution and
delivery by such Seller Party of this Agreement and each other Transaction
Document to which it is a party, and the performance of its obligations
hereunder and thereunder and, in the case of Seller, Seller's use of the
proceeds of purchases made hereunder, are within its corporate powers and
authority and have been duly authorized by all necessary corporate action on its
part. This Agreement and each other Transaction Document to which such Seller
Party is a party has been duly executed and delivered by such Seller Party. (d)
(e) No Conflict. The execution and delivery by such Seller Party of this
Agreement and each other Transaction Document to which it is a party, and the
performance of its obligations hereunder and thereunder do not contravene or
violate (i) its certificate or articles of incorporation or by-laws, (ii) any
law, rule or regulation applicable to it, (iii) any restrictions under any
agreement, contract or instrument to which it is a party or by which it or any
of its property is bound, or (iv) any order, writ, judgment, award, injunction
or decree binding on or affecting it or its property, and do not result in the
creation or imposition of any Adverse Claim on assets of such Seller Party or
its Subsidiaries (except as created hereunder); and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law. (f) (g)
Governmental Authorization. Other than the filing of the financing statements
required hereunder, no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution and delivery by such Seller Party of this
Agreement and each other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder. (h) (i) Actions, Suits.
There are no actions, suits or proceedings pending, or to the best of such
Seller Party's knowledge, threatened, against or affecting such Seller Party, or
any of its properties, in or before any court, arbitrator or other body, that
could reasonably be expected to result in a Material Adverse Change. Such Seller
Party is not in default with respect to any order of any court, arbitrator or
governmental body. (j) (k) Binding Effect. This Agreement and each other
Transaction Document to which such Seller Party is a party constitute the legal,
valid and binding obligations of such Seller Party enforceable against such
Seller Party in accordance with their respective 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). (l) (m) Accuracy of Information. All
information heretofore furnished by such Seller Party or any of its Affiliates
to the Agent or the Purchasers for purposes of or in connection with this
Agreement, any of the other Transaction Documents or any transaction
contemplated hereby or thereby is, and all such information hereafter furnished
by such Seller Party or any of its Affiliates to the Agent or the Purchasers
will be, true and accurate in every material respect on the date such
information is stated or certified and does not and will not contain any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading. (n) (o) Use
of Proceeds. No proceeds of any purchase hereunder will be used (i) for a
purpose that violates, or would be inconsistent with, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended. (p) (q)
Good Title. Immediately prior to each purchase hereunder, the Seller shall be
the legal and beneficial owner of the Receivables and Related Security with
respect thereto, free and clear of any Adverse Claim, except as created by the
Transaction Documents. There have been duly filed all financing statements or
other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect Seller's ownership
interest in each Receivable, its Collections and the Related Security. (r) (s)
Perfection. This Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each purchase hereunder,
transfer to the Agent for the benefit of the relevant Purchaser or Purchasers
(and the Agent for the benefit of such Purchaser or Purchasers shall acquire
from Seller) a valid and perfected first priority undivided percentage ownership
interest in each Receivable existing or hereafter arising and in the Related
Security and Collections with respect thereto, free and clear of any Adverse
Claim, except as created by the Transaction Documents. There have been duly
filed all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (on behalf of the Purchasers) ownership interest in the
Receivables, the Related Security and the Collections. (t) (u) Places of
Business. The principal places of business and chief executive office of such
Seller Party and the offices where it keeps all of its Records are located at
the address(es) listed on Exhibit II or such other locations of which the Agent
has been notified in accordance with Section 7.2(a) in jurisdictions where all
action required by Section 14.4(a) has been taken and completed. Seller's
Federal Employer Identification Number is correctly set forth on Exhibit II. (v)
(w) Not a Holding Company or an Investment Company. Such Seller Party is not a
"holding company" or a "subsidiary holding company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or any successor statute. Such Seller Party is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or any successor statute. (x) (y) Year 2000. Such Seller Party (i) has reviewed
the areas within its business and operations which could be adversely affected
by the Year 2000 Problem, (ii) has developed a Year 2000 Plan to address the
Year 2000 Problem on a timely basis, (iii) is taking all actions necessary to
meet the schedule and goals of the Year 2000 Plan and (iv) has adequate funds to
implement the Year 2000 Plan. Such Seller Party does not reasonably anticipate
that the Year 2000 Problem could result in a Material Adverse Change. (z) (aa)
Accounting. The manner in which such Seller Party accounts for the transactions
contemplated by this Agreement and the Receivables Sale Agreement does not
jeopardize the true sale analysis. (bb) (cc) Taxes. Such Seller Party will do
nothing to materially impair the rights, title and interest of any Purchaser in
and to the Purchaser Interest and will pay when due (or contest in good faith)
any taxes, including without limitation any sales tax, excise tax or other
similar tax or charge, payable in connection with the Receivables and their
creation and satisfaction. (dd) (ee) Financial Condition. Seller is solvent and
able to pay its debts when due, and is not the subject of any case or
proceeding, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, arrangement, adjustment of debts, winding-up, liquidation,
dissolution, composition, receivership, trusteeship, custodianship, or any other
proceeding regarding relief of debtors or enforcement of creditors' rights.
Seller shall not take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the foregoing cases or proceedings.
Seller is not a defendant in any case, proceeding or other action seeking
issuance of a writ or warrant of attachment, execution, distraint or similar
process against all or any part of its assets.
ARTICLE 1.1 Financial Institution Representations and Warranties . As of the
date hereof, each Financial Institution hereby represents and warrants to the
Agent, the Companies, the Seller, and the Servicer that:
ARTICLE 1.2 (a)
Existence and Power. Such Financial Institution is a corporation or a banking
association duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, and has all corporate
power to perform its obligations hereunder.
(a) No Conflict. The execution and delivery by such Financial Institution of
this Agreement and the performance of its obligations hereunder are within its
corporate powers, have been duly authorized by all necessary corporate action,
do not contravene or violate (i) its certificate or articles of incorporation or
association or by-laws, (ii) any law, rule or regulation applicable to it, (iii)
any restrictions under any agreement, contract or instrument to which it is a
party or any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not
result in the creation or imposition of any Adverse Claim on its assets. This
Agreement has been duly authorized, executed and delivered by such Financial
Institution. (b) (c) Governmental Authorization. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such Financial
Institution of this Agreement and the performance of its obligations hereunder.
(d) (e) Binding Effect. This Agreement constitutes the legal, valid and binding
obligation of such Financial Institution enforceable against such Financial
Institution 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 such enforcement is sought in a
proceeding in equity or at law). (f) (g) (h)
ARTICLE 1 CONDITIONS OF PURCHASES
ARTICLE 1.1 Conditions Precedent to Purchase . The purchase of a Purchaser
Interest under this Agreement is subject to the conditions precedent that (a)
the Agent shall have received on or before the date of such purchase those
documents listed on Schedule B and (b) the Agent shall have received all fees
and expenses required to be paid on such date pursuant to the terms of this
Agreement and the Fee Letter. The purchase of a Purchaser Interest (other than
pursuant to Section 13.1) shall be subject to the further conditions precedent
that there is an absence of any Material Adverse Change with respect to the
Servicer since July 31, 1999, each of the representations and warranties set
forth in Section 5.1 and in Sections 3.01 and 3.02 of the Sale Agreement shall
be true and correct, and no event has occurred and is continuing or would result
from such purchase that would constitute a Servicer Default or a Potential
Servicer Default.
ARTICLE 1 COVENANTS
ARTICLE 1.1 Affirmative Covenants of the Seller Parties . Until the date on
which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, as set forth below: ARTICLE 1.2 (a) Financial
Reporting. Such Seller Party will maintain, for itself and each of its
Subsidiaries, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Agent:
(i) Annual Reporting. Within 120 days after the close of its fiscal year,
the annual report for Servicer for such fiscal year on Form 10-K, in
the form filed with the Securities and Exchange Commission.
(i) Quarterly Reporting. Within 45 days after the close of the first three
(3) quarterly periods of its fiscal year, the quarterly reports for
Servicer on Form 10-Q, in the form filed with the Securities and
Exchange Commission, as at the close of each such period.
(i) Other Information. Promptly, from time to time, such other information,
documents, records or reports relating to the Receivables or the
condition or operations, financial or otherwise, of such Seller Party
as the Agent may from time to time reasonably request in order to
protect the interests of the Agent and the Purchasers under or as
contemplated by this Agreement.
(a) Notices. Such Seller Party will notify the Agent in writing of any of the
following promptly upon learning of the occurrence thereof, describing the same
and, if applicable, the steps being taken with respect thereto: (b) (i) Servicer
Defaults. The occurrence of each Servicer Default, by a
statement of an Authorized Officer of such Seller Party.
(i) Judgment and Proceedings. (A) The entry of any judgment or decree
against (1) the Servicer or any of its respective Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against
the Servicer and its Subsidiaries exceeds $25,000,000 or (2) Seller; or
(B) the institution of any litigation, arbitration proceeding or
governmental proceeding against such Seller Party.
(i) Defaults Under Other Agreements. The occurrence of a default or an
event of default under any other financing arrangement pursuant to
which such Seller Party is a debtor or an obligor.
(i) Termination of Sale Agreement. The termination for any reason of the
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Sale Agreement.
(i) Material Adverse Change. The occurrence of an event which the Seller
in its reasonable judgment believes to constitute a Material Adverse
Change.
(a) Compliance with Laws and Preservation of Corporate Existence. Such Seller
Party will comply in all respects with all applicable laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it may be
subject. Such Seller Party will preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign corporation in each
jurisdiction where its business is conducted, except where the failure to so
preserve and maintain or qualify could not reasonably be expected to result in a
Material Adverse Change. (b) (c) Audits. Such Seller Party will furnish to the
Agent from time to time such information with respect to it and the Receivables
as the Agent may reasonably request. Such Seller Party shall permit the Agent
and its agents and representatives, at their own expense (unless a Servicer
Default has occurred and is continuing (including, without limitation, by reason
of a failure to deliver the reports required by Section 8.9 or Section 8.10 and
the expiration of the grace period specified in Section 9.1(c)), in which case,
at the expense of the Servicer) during normal business hours on 48 hours prior
notice: (i) to examine and make copies of and abstracts from all Records in the
possession or under the control of such Person relating to the Receivables and
the Related Security, including, without limitation, the related Contracts, and
(ii) to visit the offices and properties of such Person for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to such Person's financial condition or the Receivables and the Related
Security or any Person's performance under any of the Transaction Documents or
any Person's performance under the Contracts and, in each case, with any of the
officers or employees of Seller or the Servicer having knowledge of such
matters. Nothing in this Section 7.1(d) shall affect the obligations of the
Servicer to observe any applicable law prohibiting the disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of this obligation shall not constitute a breach of this
Section 7.1(d). (d) (e) Keeping and Marking of Records and Books. The Servicer
will keep proper books and records of account in which full, true and correct
entries in conformity with GAAP (to the extent applicable); and permit
representatives of the Agent and any Financial Institution to examine and make
extracts from any of its Records relating to the Receivables and the Related
Security, including, without limitation, the related Contracts, during normal
business hours, on the terms set forth in Section 7.1(d), above. The Servicer
will ensure that its computer files are at all times marked in the fashion
specified in Section 4.01(c) of the Sale Agreement. (f) (g) Taxes on
Receivables. Seller will pay when due any taxes payable in connection with the
Receivables, exclusive of taxes on or measured by income or gross receipts of a
Company, the Agent or any Financial Institution. (h) (i) Ownership. Seller shall
take all necessary action to (i) vest legal and equitable title to the
Receivables, the Related Security and the Collections purchased under the
Receivables Sale Agreement irrevocably in Seller, free and clear of any Adverse
Claims other than Adverse Claims in favor of the Agent and the Purchasers
(including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect Seller's interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of Seller therein as the Agent may
reasonably request), and (ii) establish and maintain, in favor of the Agent, for
the benefit of the Purchasers, a valid and perfected first priority undivided
percentage ownership interest (and/or a valid and perfected first priority
security interest) in all Receivables, Related Security and Collections to the
full extent contemplated herein, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Agent for the benefit of the Purchasers
(including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect the Agent's (for the benefit of the
Purchasers) interest in such Receivables, Related Security and Collections and
such other action to perfect, protect or more fully evidence the interest of the
Agent for the benefit of the Purchasers as the Agent may reasonably request).
(j) (k) Representations and Warranties as to the Receivables. Pursuant to
Section 2.01 of the Sale Agreement, the Seller assigns to the Purchasers all of
its right, title and interest in, to and under the Sale Agreement. Such assigned
right, title and interest includes the representations and warranties of NFC
made to the Seller pursuant to Sections 3.01 and 3.02 of the Sale Agreement. The
Seller hereby represents and warrants to the Purchasers that the Seller has
taken no action which would cause such representations and warranties to be
false in any material respect as of the date of this Agreement. The Seller
further acknowledges that each Purchaser relies on the representations and
warranties of the Seller under this Agreement and of NFC under the Sale
Agreement in accepting the Receivables. The foregoing representation and
warranty speaks as of the date of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables to the Purchasers. (l) (m) Repurchase
of Receivables Upon Breach of Warranty. Upon discovery by the Seller or the
Servicer of a breach of any of the representations and warranties in Section
3.01 of the Sale Agreement (and, with respect to Subsection 3.01(j) of the Sale
Agreement, irrespective of any limitation regarding knowledge of NFC) or in
Article V of this Agreement that materially and adversely affects the interests
of a Purchaser in any Receivable, the party discovering such breach shall give
prompt written notice thereof to the Agent and the Purchasers. As of the second
Settlement Date following its discovery or its receipt of notice of breach (or,
at the Seller*s election, the first Accounting Date following such discovery),
unless such breach shall have been cured in all material respects, in the event
of a breach of the representations and warranties made by the Seller in Section
3.01 of the Sale Agreement or the Servicer in Article V, the Seller shall
repurchase the interests of the Purchasers in such Receivable from the
Purchasers on the related Settlement Date. A Purchaser shall have no affirmative
duty to conduct any investigation as to the occurrence of any event requiring
the repurchase of any Receivable pursuant to this Section 7.1(i). (n) (o) The
repurchase price to be paid by any Warranty Purchaser shall be an amount equal
to the Warranty Payment. It is understood and agreed that so long as the
Warranty Purchaser fulfills its obligation to repurchase any Receivable as to
which a breach has occurred and is continuing, such continuing breach will not
in and of itself result in a Servicer Default or a breach under this Agreement
by such Warranty Purchaser. The Servicer acknowledges its obligations to
repurchase Administrative Receivables from the Purchaser pursuant to Section
7.2(g) hereof and to repurchase Warranty Receivables pursuant to Section 5.04 of
the Sale Agreement. (p) (q) Corporate Separateness. Seller will maintain its
corporate separateness and distinctiveness from NFC and all other Affiliates
through observation of the following covenants: (r) (i) Seller shall at all
times restrict its activities to (i) providing financing facilities through the
purchase of any instalment sale contracts, loans, notes, leases, accounts or
other rights to payment from retail customers in respect of trucks, buses,
trailers and related equipment (including notes of dealers and other persons
that finance the acquisition by such dealer or other person of a truck, bus,
trailer or related equipment that is leased to a third person or persons) from
NFC and (ii) conducting any ancillary business or activity as it deems necessary
or appropriate to accomplish its primary purpose. Seller will not amend its
certificate of incorporation ("Certificate of Incorporation") in any manner
which would affect such restrictions on Seller's activities.
(i) Seller shall keep separate books and records such that its own separate
financial statements may be readily prepared and presented apart from
any financial statements consolidated to include NFC or any subsidiary
or affiliate of NFC other than Seller. Any financial statements of NFC
which are presented on a consolidated basis to include Seller shall
contain notes clearly stating that the Receivables have been sold to a
third party and are not assets of the consolidated group.
(i) Seller shall conduct its business solely in its individual corporate
name and otherwise so as not to mislead others with whom it deals
regarding its independent identity and existence.
(i) Seller has and will maintain its own separate mailing address,
telephone number and stationery.
(i) Seller will cause to be elected and compensate its Independent
Directors as described in Section 7.2 (j)(xi) below.
(i) Any allocations of direct, indirect or overhead expenses for items
shared between Seller on the one hand and NFC on the other hand have
been and will be made to the extent practical on the basis of actual
use or value of services rendered and otherwise on a basis reasonably
related to actual use or the value of services rendered.
(i) Seller has paid and will pay its own operating expenses and liabilities
from its own funds, except NFC shall pay a portion of the expenses of
Seller incurred in connection with the transactions contemplated by the
Transaction Documents. Such payment by NFC shall be treated by NFC as
Advances under the Amended and Restated Intercompany Advance Agreement
(the "Intercompany Advance Agreement") dated as of May 3, 1994, between
NFC and Seller.
(i) Seller shall not commingle or pool its funds or other assets with those
of NFC or any other subsidiary or affiliate of NFC except as
specifically provided in transaction documents executed in connection
with past pools of receivables and in the Amended and Restated
Operating Agreement dated as of May 3, 1994 (the "Operating Agreement")
between NFC and Seller. Except as provided in the Operating Agreement,
Seller shall not maintain joint bank accounts or other depository
accounts to which NFC or any other Affiliate of NFC, other than NFC in
its capacity as Servicer, has independent access.
(i) Seller is not named, and has not entered any agreement to be named,
directly or indirectly, as a direct or contingent beneficiary or loss
payee on any insurance policy covering the property of NFC or of any
other subsidiary or Affiliate of NFC.
(i) Each officer and director of Seller shall discharge his or her
respective fiduciary duties and obligations in accordance with all
applicable laws.
(i) Seller has, and shall continue at all times to have, at least two
Independent Directors (as defined in Seller's restated Certificate of
Incorporation as in effect on the date hereof) on its board of
directors. Creditors of NFC or Seller who have inquired as to the
absence or presence of Independent Directors on the board of directors
of Seller have been made aware as to whether there were then any
Independent Directors.
(a) Taxes. Such Seller Party shall file all tax returns and reports required by
law to be filed by it and shall promptly pay all taxes and governmental charges
at any time owing, except any such taxes which are not yet delinquent or are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books. (b) (c) Transfers, Liens,
Etc. Except for the Lien in favor of a Purchaser created by this Agreement, the
Seller Parties shall not transfer, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Lien (including, without
limitation, the filing of any financing statement) upon or with respect to any
Receivable, Related Security or Collections, or upon or with respect to any
account to which any Collections of any Receivable are sent, or assign any right
to receive income in respect thereto. (d) (e) Liens in Force. Except as
contemplated in this Agreement, the Seller Parties shall not release in whole or
in part any Financed Vehicle or related insurance contract rights from the
security interest securing the Receivable; (f) (g) No Impairment. The Seller
Parties shall do nothing to impair the rights of the Seller or any Purchasers in
and to the Receivables; and (h) (i) No Modifications. The Seller Parties shall
not amend or otherwise modify any Receivable such that the Initial Receivable
Balance, the Annual Percentage Rate or the total number of Scheduled Payments is
altered or such that the final scheduled payment on such Receivable will be due
later than six months past its original due date. The Seller Parties shall not
permit any reduction of the principal amount of any Receivable other than by
reason of losses or reductions relating to Liquidating Receivables. (j) (k)
Enforcement of Rights Under Sale Agreement. The Seller will take all steps
reasonably necessary to enforce the Seller's rights under the Sale Agreement and
to cause NFC to perform its obligations thereunder (including the obligation to
repurchase Receivables in certain circumstances). (l) (m) No Termination of Sale
Agreement. The Sale Agreement shall not be terminated prior to the date of
termination of this Agreement. (n) (o) Revision of Customary Servicing
Procedures. The Seller Parties shall not revise the Customary Servicing
Procedures in a manner that would reasonably be expected to materially adversely
affect the collectibility of the Receivables generally.
ARTICLE 1.1 Covenants of the Servicer . At all times from the date hereof to the
date on which the Aggregate Unpaids shall be equal to zero, unless the Agent
shall otherwise consent in writing:
ARTICLE 1.2
(a) Conduct of Business. The Servicer will do all things necessary to remain
duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and will maintain all requisite
authority to conduct its business in each jurisdiction in which its business
requires such authority.
(a) Purchase of Receivables Upon Breach of Covenant. Upon discovery by any of
the Seller or the Servicer, the Agent and the Purchasers of a breach of any of
the covenants set forth in Section 8.5 and Sections 7.1(m), (n) or (o), the
party discovering such breach shall give prompt written notice thereof to the
Agent and the Purchasers. As of the second Accounting Date following its
discovery or receipt of notice of such breach (or, at the Servicer*s election,
the first Accounting Date so following), the Servicer shall, unless it shall
have cured such breach in all material respects, purchase from the Purchasers
their interests in any Receivable materially and adversely affected by such
breach and, on the related Settlement Date, the Servicer shall pay the
Administrative Purchase Payment. It is understood and agreed that so long as the
Servicer fulfills its obligation to purchase any Receivable with respect to
which such a breach has occurred and is continuing, such continuing breach will
not in and of itself result in a Servicer Default or a breach under this
Agreement by the Servicer.
ARTICLE 1.1 Covenant of the Agent. Until this Agreement has terminated, the
Agent shall maintain the Schedule of Receivables at its office set forth on the
signature page hereof for inspection during normal business hours by interested
parties. ARTICLE 1.2
ARTICLE 1 ADMINISTRATION AND COLLECTION
ARTICLE 1.1 General Duties of the Servicer . The Servicer is hereby appointed
and authorized by the Agent and the Purchasers to act as agent for the Agent and
the Purchasers and in such capacity shall manage, service, administer and make
collections on the Receivables with reasonable care and diligence, using that
degree of skill and attention that the Servicer exercises with respect to
comparable medium and heavy duty truck, bus and trailer receivables that it
services for itself or others and in compliance with applicable law. The
Servicer hereby accepts such appointment and authorization and agrees to perform
the duties of Servicer with respect to the Receivables set forth herein. The
Servicer*s duties shall include collection and posting of all payments,
responding to inquiries of Obligors on the Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, policing the collateral, accounting for collections and furnishing
monthly and annual statements to the Purchasers with respect to distributions,
generating federal income tax information and performing the other duties
specified herein. Subject to the provisions of Section 8.2, the Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable.
Without limiting the generality of the foregoing, the Servicer
is hereby authorized and empowered by the Agent and the Purchasers, pursuant to
this Section 8.1, to execute and deliver, on behalf of the Agent and the
Purchasers, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Receivables and the Financed Vehicles. The Servicer is hereby
authorized to commence in the name of the Agent and the Purchasers or, to the
extent necessary, in its own name, a legal proceeding to enforce a Liquidating
Receivable as contemplated by Section 8.3, to enforce all obligations of NFC and
Seller in its capacity as the Seller or otherwise, under each of the Sale
Agreement and this Agreement or to commence or participate in a legal proceeding
(including a bankruptcy proceeding) relating to or involving a Receivable or a
Liquidating Receivable. If the Servicer commences or participates in such a
legal proceeding in its own name, the Agent and the Purchasers shall thereupon
be deemed to have automatically assigned such Receivable to the Servicer for
purposes of commencing or participating in any such proceeding as a party or
claimant, the Servicer is hereby authorized and empowered by the Agent and the
Purchasers to execute and deliver in the Servicer's name any notices, demands,
claims, complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. The Agent and each Purchaser, upon the
written request of the Servicer, shall furnish the Servicer with any powers of
attorney and other documents and take any other steps which the Servicer may
deem necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement and the Purchase Agreement.
Except to the extent required by the preceding two sentences, the authority and
rights granted to the Servicer in this Section 8.1 shall be nonexclusive and
shall not be construed to be in derogation of the retention by the Agent or the
Purchasers of equivalent authority and rights.
ARTICLE 1.1 Collection of Receivables Payments . The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such collection practices, policies and procedures as it follows with
respect to comparable medium and heavy duty truck, bus and trailer receivables
that it services for itself or others, consistent with its Customary Servicing
Procedures. Except as provided in Section 7.2(e), the Servicer is hereby
authorized to grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Agent or the Purchasers and to rewrite, in its ordinary
course of business, a Receivable to reflect the Full Prepayment of a Receivable
with respect to any Financed Vehicle without the prior consent of the Agent or
the Purchasers. The Servicer is authorized in its discretion to waive any
prepayment charge, late payment charge or any other fees that may be collected
in the ordinary course of servicing the Receivables.
ARTICLE 1.1 Realization Upon Liquidating Receivables . The Servicer shall use
reasonable efforts, consistent with its Customary Servicing Procedures, to
repossess or otherwise comparably convert the ownership of each Financed Vehicle
that it has reasonably determined should be repossessed or otherwise converted
following a default under the Receivable secured by each such Financed Vehicle
and to comply with applicable law. The Servicer is authorized, consistent with
its Customary Servicing Procedures, to follow such practices, policies and
procedures as it shall deem necessary or advisable and as shall be customary and
usual in its servicing of medium and heavy duty truck, bus and trailer
receivables that it services for itself or others, which practices, policies and
procedures may include reasonable efforts to realize upon or obtain benefits of
any lease assignments, proceeds from any Dealer Liability, proceeds from any
NITC Purchase Obligations, proceeds from any Insurance Policies and proceeds
from any Guaranties, in each case with respect to the Receivables, selling the
related Financed Vehicle or Financed Vehicles at public or private sale or sales
and other actions by the Servicer in order to realize upon such a Receivable.
The foregoing is subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not be required
to expend funds in connection with any repair or towards the repossession of
such Financed Vehicle unless it shall determine in its discretion that such
repair and/or repossession shall increase the proceeds of liquidation of the
related Receivable by an amount greater than the amount of such expenses. The
Servicer shall be entitled to receive Liquidation Expenses from Collections with
respect to each Liquidating Receivable at such time as the Receivable becomes a
Liquidating Receivable in accordance with Section 2.1(b). Following the
occurrence and continuation of a Servicer Default, the Agent may, but shall have
no obligation to (i) take any action or commence any proceeding to realize upon
any Liquidating Receivable, any such action or commencement of proceeding to be
at the sole expense of the Servicer; or (ii) instruct the Servicer to take any
action or commence and prosecute any proceeding to realize upon any Liquidating
Receivable, at the sole expense of the Servicer, until such time as the Agent
designates a replacement Servicer to assume such responsibilities.
At such time as the Servicer or the Seller, as the case may be, has any
obligation to pursue the collection of Receivables and the Agent or a Purchaser
possesses any documents necessary therefor, the Agent or such Purchaser, as the
case may be, agrees to furnish such documents to the Servicer or the Seller, as
the case may be, to the extent and for the period necessary for the Servicer or
the Seller, as the case may be, to comply with its obligations hereunder.
ARTICLE 1.1 Maintenance of Insurance Policies . The Servicer shall, in
accordance with its Customary Servicing Procedures, require that each Obligor
shall have obtained physical damage insurance covering each Financed Vehicle as
of the execution of the related Receivable, unless the Servicer has in
accordance with its Customary Servicing Procedures permitted an Obligor to
self-insure the Financed Vehicle or Financed Vehicles securing such Receivable.
The Servicer shall, in accordance with its Customary Servicing Procedures,
monitor such physical damage insurance with respect to each Financed Vehicle
that secures each Receivable.
ARTICLE 1.1 Maintenance of Security Interests in Vehicles . The Servicer shall,
in accordance with its Customary Servicing Procedures and at its own expense,
take such steps as are necessary to maintain perfection of the first priority
security interest created by each Receivable in the related Financed Vehicle or
Financed Vehicles. The Purchasers hereby authorize the Servicer to re-perfect
such security interest as necessary because of the relocation of a Financed
Vehicle or for any other reason.
ARTICLE 1.1 Total and Supplemental Servicing Fees; Payment of Certain Expenses
by Servicer . The Servicer is entitled to receive the Total Servicing Fee and
Supplemental Servicing Fees out of Collections as provided herein. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities under this Agreement (including fees and disbursements of the
Purchaser, the Financial Institution, the Agent, and any independent
accountants, taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to the Agent and the Purchasers and all other fees and
expenses not expressly stated under this Agreement to be for the account of the
Purchasers, but excluding federal, state and local income and franchise taxes,
if any, of any Purchaser). The Servicer will not have any obligation to deposit
Supplemental Servicing Fees in the Collection Account. To the extent that any
such amount shall be held in the Collection Account, such amount may be
withdrawn therefrom by the Servicer.
ARTICLE 1.1 Monthly Advances . Subject to the following sentence, as of each
Settlement Date, if the payments during the related Monthly Period by or on
behalf of the Obligor on a Receivable (other than an Administrative Receivable,
a Warranty Receivable or a Liquidating Receivable) after application under
Section 2.1 shall be less than the Scheduled Payment, whether as a result of any
extension granted to the Obligor or otherwise, then the Servicer shall, subject
to the following sentence, advance any such shortfall (such amount, a "Monthly
Advance"). The Servicer shall be obligated to make a Monthly Advance in respect
of a Receivable only to the extent that the Servicer, in its sole discretion,
shall determine that such advance shall be recoverable (in accordance with the
two immediately following sentences) from subsequent Collections or recoveries
on such Receivable. Subject to Section 2.1, the Servicer shall be reimbursed for
Outstanding Monthly Advances with respect to a Receivable from the following
sources with respect to such Receivable, in each case as set forth in this
Agreement: (i) subsequent payments by or on behalf of the Obligor, (ii)
collections of Liquidation Proceeds, (iii) the Administrative Purchase Payment
and (iv) the Warranty Payment. On the Settlement Date following any date on
which the Servicer shall determine that any Outstanding Monthly Advances with
respect to any Receivable shall not be recoverable from payments with respect to
such Receivable, the Servicer shall be reimbursed from any collections made on
other Receivables.
ARTICLE 1.1 Additional Deposits . The Servicer shall deposit in the Collection
Account the aggregate Monthly Advances pursuant to this Section 8.7. The
Servicer and the Seller shall deposit in the Collection Account the aggregate
Administrative Purchase Payments and Warranty Payments with respect to
Administrative Receivables and Warranty Receivables, respectively. All such
deposits with respect to a Monthly Period shall be made in immediately available
funds on the day before the Settlement Date related to such Monthly Period.
ARTICLE 1.1 Annual Statement as to Compliance . The Servicer shall deliver to
the Agent on or before February 1 of each year, beginning February 1, 2001, an
officer's certificate signed by the President or any Vice President of the
Servicer, dated as of the immediately preceding October 31, stating that (i) a
review of the activities of the Servicer during the preceding 12-month period
(or, with respect to the first such certificate, such period as shall have
elapsed from the date of this Agreement to the date of such certificate) and of
its performance under this Agreement has been made under such officer*s
supervision and (ii) to such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
ARTICLE 1.1 Annual Independent Accountants' Report .
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ARTICLE 1.2
(a) The Servicer shall cause a firm of independent accountants, who may also
render other services to the Servicer or the Seller, to deliver to the Agent, on
or before February 1 of each year, beginning February 1, 2001 with respect to
the twelve months ended on the immediately preceding October 31 (or, with
respect to the first such report, such period as shall have elapsed from the
date of this Agreement to the date of such certificate), a report (the
"Accountants' Report") addressed to the board of directors of the Servicer and
to the Agent, to the effect that such firm has audited the financial statements
of the Servicer and issued its report thereon and that such audit (i) was made
in accordance with generally accepted auditing standards, (ii) included tests
relating to retail notes serviced for others in accordance with the requirements
of the Uniform Single Audit Program for Mortgage Bankers (the "Program,") to the
extent the procedures in the Program are applicable to the servicing obligations
set forth in this Agreement and (iii) except as described in the report,
disclosed no exceptions or errors in the records relating to retail notes
serviced for others that, in the firm*s opinion, paragraph four of the Program
requires such firm to report.
(a) The Accountants' Report shall also indicate that the firm is independent of
the Seller and the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants.
ARTICLE 1.1 Assignment of Administrative Receivables and Warranty Receivables .
Upon receipt of the Administrative Purchase Payment or the Warranty Payment with
respect to an Administrative Receivable or a Warranty Receivable, respectively,
the Agent, on behalf of the Purchasers, shall assign, without recourse,
representation or warranty, to the Servicer or the Warranty Purchaser, as
applicable, all of such Person*s right, title and interest in, to and under (a)
such Administrative Receivable or Warranty Receivable and all monies due
thereon, (b) the security interests in the related Financed Vehicle and, to the
extent permitted by law, any accessions thereto which are financed by NFC, (c)
benefits of any lease assignments with respect to the Financed Vehicles, (d)
proceeds from any Insurance Policies with respect to such Receivable, (e)
proceeds from Dealer Liability with respect to such Receivable, proceeds from
any NITC Purchase Obligations with respect to such Receivable and proceeds from
any Guaranties of such Receivable, (f) the interests of such Person in certain
rebates of premiums and other amounts relating to the Insurance Policies and any
document relating thereto and (g) the rights of such Person under the Purchase
Agreement and the Custodian Agreement with respect to such Receivable, such
assignment being an assignment outright and not for security. Upon the
assignment of such Receivable described in the preceding sentence, the Servicer
or the Warranty Purchaser, as applicable, shall own such Receivable, and all
such security and documents, free of any further obligations to the Agent or any
Purchaser with respect thereto. If in any Proceeding it is held that the
Servicer may not enforce a Receivable on the grounds that it is not a real party
in interest or a holder entitled to enforce the Receivable, the Agent shall, at
the Servicer*s expense, take such steps as the Servicer deems necessary to
enforce the Receivable, including bringing suit in the name of such Person or
the names of the Purchasers.
ARTICLE 1.1 Collection Account . The Agent shall maintain, for the benefit of
the Purchasers, the Collection Account for the purpose of receiving and
disbursing all Collections, and all other payments to be made into the
Collection Account. The Collection Account will be an Eligible Account
maintained in the name of the Agent, for the benefit of the Purchasers, and
shall be used only for the collection of the amounts and for application of such
amounts as described in Section 1.4(c) of this Agreement. In the event there
shall have been deposited in the Collection Account any amount not required to
be deposited therein and so identified to the Agent, such amount shall be
withdrawn from the Collection Account by the Agent at the instruction of the
Servicer and paid in accordance with the instructions of the Servicer, and any
such amounts shall not be deemed to be a part of the Collection Account. If the
Collection Account ceases to be an Eligible Account, the Agent shall, within ten
days of receipt of notice of such change in eligibility, transfer the Collection
Account to an account meeting the requirements of an Eligible Account.
The Servicer and the Seller agree to take all actions
reasonably necessary, including the filing of appropriate financing statements
and the giving of proper registration instructions relating to any investments,
to protect the Agent*s and the Purchasers* interest in the Collection Account
and any Eligible Investments acquired with moneys therein.
ARTICLE 1.1 Delegation of Duties . So long as NFC acts as Servicer, the Servicer
may, at any time without notice or consent, delegate any duties under this
Agreement to any corporation more than 50% of the voting stock of which is
owned, directly or indirectly, by NFC. The Servicer may at any time perform
specific duties as Servicer through sub-contractors who are in the business of
servicing medium and heavy duty truck, bus and trailer receivables; provided,
however, that no such delegation shall relieve the Servicer of its
responsibility with respect to such duties.
ARTICLE 1.1 Servicer Not to Resign . Subject to the provisions of Section 9.2,
the Servicer shall not resign from the obligations and duties imposed on it by
this Agreement as Servicer except upon determination that the performance of its
duties under this Agreement is no longer permissible under applicable law. Any
such determination permitting the resignation of the Servicer shall be evidenced
by an opinion of counsel to such effect delivered to the Agent. No such
resignation shall become effective until the Agent, its designee or a successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 8.15.
ARTICLE 1.1 Agent to Act; Appointment of Successor . On and after the time the
Servicer receives a notice of termination pursuant to Section 9.2, the Agent
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for in
this Agreement; provided however, that the predecessor Servicer shall remain
liable for, and the successor Servicer shall have no liability for, any
indemnification obligations of the Servicer arising as a result of acts,
omissions or occurrences during the period in which the predecessor Servicer was
the Servicer; and provided further, that NFC shall remain liable for all such
indemnification obligations of the Servicer without regard to whether it is
still Servicer hereunder. As compensation therefor, the Agent or its designee
shall be entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination had been given including, but not
limited to, the Total Servicing Fee and Supplemental Servicing Fees. In the
event that the Agent is unable, after a search conducted in good faith, to
locate a qualified successor Servicer that is willing to undertake the servicing
of the Receivables for an amount equal to or less than the Total Servicing Fees
and the Supplemental Servicing Fees, then the Agent shall solicit bids from at
least three Qualified Replacement Servicers and shall select the Person whose
bid, in the Agent's sole judgment, constitutes the lowest cost bid to perform
the servicing of the Receivables, and such successor Servicer shall be entitled
to total fees in the amount specified in such bid (the "Replacement Servicing
Fees"). For purposes of this Section 8.15, a "Qualified Replacement Servicer"
shall mean a Person that in its ordinary course of business services, for itself
or for others, one or more portfolios of amortizing loan receivables of trucks,
automobiles or commercial equipment having an aggregate principal balance of at
least $1,000,000,000 and that the Agent believes, in its sole judgment, would be
reasonably qualified to service the Receivables. In connection with such
appointment and assumption, the Agent may make such arrangements for the
compensation of such successor out of payments on Receivables as it and such
successor shall agree.
ARTICLE 1.1 Merger or Consolidation of or Assumption of the Obligations of, the
Servicer . Any corporation (a) into which the Servicer may be merged or
consolidated, (b) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, (c) succeeding to the business of the
Servicer, or (d) more than 50% of the voting stock of which is owned directly or
indirectly by NFC and which is otherwise servicing the Seller*s receivables,
which corporation in the foregoing cases (c) or (d) executes an agreement of
assumption to perform every obligation of the Servicer under this Agreement
shall be the successor to the Servicer under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, notwithstanding anything in this Agreement to the
contrary (but subject to Article IX in the event that any such transaction is
described in Section 9.1(h)). The Servicer shall provide notice of any merger,
consolidation or succession pursuant to this Section 8.16 to the Agent.
ARTICLE 1 SERVICER DEFAULTS
ARTICLE 1.1 Servicer Defaults . The occurrence of any one or more of the
following events shall constitute a Servicer Default:
ARTICLE 1.2
(a) the Servicer shall fail to instruct the Securities Intermediary to remit to
the Agent on any day any amount required to be remitted to the Agent on such day
in respect of CP Costs, Yield, Facility Fees or Capital and such failure shall
continue for one (1) Business Day after the date when such amounts became due;
(a) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be
deposited or paid when due any other amount due hereunder, and any such failure
shall continue for two (2) Business Days after written notice thereof by the
Agent to the Servicer; (b) (c) failure on the part of the Seller or the Servicer
to duly observe or perform any other covenants or agreements of the Seller or
the Servicer set forth in the Sale Agreement, this Agreement, or any of the
other Transaction Documents, which failure continues unremedied for a period of
ten (10) days after the earlier of knowledge thereof or the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller or the Servicer, as applicable, by the Agent; (d) (e) a
default by the Servicer in the performance of any term, provision or condition
contained in any agreement under which any Indebtedness of the Servicer in
excess of $1,000,000 was created or is governed, the effect of which is to cause
any such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the date of maturity
thereof. (f) (g) any representation, warranty, certification or statement made
by the Servicer under this Agreement or in any agreement, certificate, report,
appendix, schedule or document furnished by the Seller or Servicer to the Agent
pursuant to or in connection with this Agreement shall prove to have been false
or misleading in any material respect as of the time made or deemed made
(including by omission of material information necessary to make such
representation, warranty, certification or statement not misleading); (h) (i)
the failure of the Seller or Servicer generally to pay its debts when due or the
entry of a decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver or
liquidator for the Seller or the Servicer, in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of their respective affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; (j) (k) the consent by the Seller or the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities, or similar proceedings of or relating to
the Seller or the Servicer or of or relating to substantially all of their
respective property; or the Seller or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations; or (l) (m) the occurrence of any or all of the following
events: (n) (i) an NFRRC Change of Control,
(i) an NFC Change of Control, or
(i) an NIC Change of Control.
ARTICLE 1.1 Remedies .
ARTICLE 1.2
(a) If a Servicer Default shall occur and be continuing, the Agent by notice
then given in writing to the Servicer may, in addition to other rights and
remedies available in a court of law or equity to damages, injunctive relief and
specific performance, (i) terminate all of the rights and obligations of the
Servicer under this Agreement ("Servicing Transfer"), (ii) to the fullest extent
permitted by applicable law, declare the Default Fee to be due and payable with
respect to any Aggregate Unpaids, (iii) notify Obligors of the Purchasers'
interest in the Receivables, and (iv) terminate the right of the Servicer in
Section 1.4(b) and (c) to select Eligible Investments in the Designated
Accounts. On or after the receipt by the Servicer of such written notice (except
that if any event set forth in subsection 9.1(f) or (g) shall have occurred,
without any such notice), all authority and power of the Servicer under this
Agreement, whether with respect to the Receivables or otherwise, shall pass to
and be vested in the Agent pursuant to and under this Section 9.2.
Alternatively, the Agent may engage affiliated or unaffiliated contractors to
perform all or any part of the administration, servicing and collection of the
Receivables and require the Servicer to pay to such contractors, to the extent
received by the Servicer, all or a portion of the Servicing Fee received in
consideration thereof. The Agent is hereby authorized and empowered to execute
and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The Servicer agrees to cooperate with the
Agent in effecting the termination of the responsibilities and rights of the
Servicer under this Agreement, including the transfer to the Agent for
administration by it of all cash amounts that shall at the time be held by the
Servicer for deposit, or that shall have been deposited by the Servicer in the
Collection Account or the Reserve Account or thereafter received with respect to
the Receivables that shall at that time be held by the Servicer. In addition to
any other amounts that are then payable to the Servicer under this Agreement,
the Servicer shall be entitled to receive from the successor Servicer
reimbursements for any Outstanding Monthly Advances made during the period prior
to the notice pursuant to this Section 9.2 which terminates the obligation and
rights of the Servicer under this Agreement.
(a) NFC, upon receiving a notice pursuant to Section 9.2(a) hereof (except that
if any event set forth in subsection 9.1(f) or (g) shall have occurred, without
any such notice), shall, at NFC's sole expense, permit the Agent access to NFC's
files and other records in order to effect an orderly transfer of servicing,
including, without limitation, taking possession of any and all Contracts;
provided, however, that for so long as NFC shall remain the Servicer hereunder,
to the extent necessary to perform its obligations as Servicer with respect to
any Receivable hereunder, upon NFC's prior written request, the Agent will
deliver or cause to be delivered to NFC the Contract giving rise to such
Receivable for the sole purpose of performing such servicing obligation, and, at
such time as NFC's possession of the original of such Contract is no longer
reasonably necessary for the performance of NFC's obligations as Servicer
hereunder (including, without limitation, because NFC is no longer Servicer
hereunder), such Contract shall promptly be returned to the Agent. (b) (c) If at
any time there shall be a Servicing Transfer, NFC will cause to be transmitted
and delivered directly to the Agent or its designated agent, for the account of
the Purchasers, forthwith upon receipt and in the exact form received, all
Collections (properly endorsed, where required, so that such items may be
collected by the Agent on behalf of the Purchasers) on account of the Purchaser
Interest. All such Collections consisting of cash shall not be commingled with
other items or monies of NFC for a period longer than two Business Days. If the
Agent or its designated agent receives items or monies that are not payments on
account of the Purchasers' interest in any Receivables, such items or monies
shall be held in trust by the Agent for the Seller's benefit and delivered
promptly to NFC after being so identified by the Agent or its designated agent,
if any, an irrevocable power of attorney, with full power of substitution,
coupled with an interest, to take in the name of NFC all steps and actions
permitted to be taken under this Agreement with respect to any Receivable which
the Agent, in its reasonable discretion, may deem necessary or advisable to
negotiate or otherwise realize on any right of any kind held or owned by NFC or
transmitted to or received by the Agent or its designated agent (whether or not
from the Seller or any Obligor) in connection with the Purchasers' Purchaser
Interest; provided, however, that such power of attorney may not be exercised
without the prior written consent of NFC, unless (A) a Servicer Default shall
have occurred and be continuing or (B) the Servicer fails to perform any act
required hereunder after receiving three (3) Business Days written notice of
such failure from the Agent. (d) (e) At any time, and from time to time
following a Servicing Transfer, the Agent shall be entitled to notify the
Obligors to make payments directly to the Agent of amounts due under the
Receivables at any time and from time to time. (f)
ARTICLE 1 INDEMNIFICATION
ARTICLE 1.1 Indemnities by the Seller Parties . Without limiting any other
rights that the Agent or any Purchaser may have hereunder or under applicable
law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the
Agent and each Purchaser and their respective assigns, officers, directors,
agents and employees (each an "Indemnified Party") from and against any and all
damages, losses, claims, taxes, liabilities, costs, expenses and for all other
amounts payable, including reasonable attorneys' fees (which attorneys may be
employees of the Agent or such Purchaser) and disbursements (all of the
foregoing being collectively referred to as "Indemnified Amounts") awarded
against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by a Purchaser of
an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify
(and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded
against or incurred by any of them arising out of the Servicer's activities as
Servicer hereunder excluding, however, in all of the foregoing instances under
the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of
competent jurisdiction holds that such Indemnified Amounts resulted
from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification;
(i) Indemnified Amounts to the extent arising from the acts or omissions of
a successor Servicer;
(i) Indemnified Amounts to the extent the same includes losses in respect
of Receivables that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
(i) taxes imposed by any jurisdiction in which such Indemnified Party is or
would be subject to tax (unless such tax arises solely as a result of
the transactions contemplated by this Agreement) on or measured by the
overall net income of such Indemnified Party to the extent that the
computation of such taxes is consistent with the characterization for
income tax purposes of the acquisition by the Purchasers of Purchaser
Interests as a loan or loans by the Purchasers to Seller secured by the
Receivables, the Related Security, the Collection Accounts and the
Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Seller Party or limit the recourse of the Purchasers to any
Seller Party for amounts otherwise specifically provided to be paid by such
Seller Party under the terms of this Agreement. Without limiting the generality
of the foregoing indemnification, Seller shall indemnify the Agent and the
Purchasers for Indemnified Amounts (including, without limitation, losses in
respect of uncollectible receivables, regardless of whether reimbursement
therefor would constitute recourse to Seller or the Servicer) relating to or
resulting from:
(a) any representation or warranty made by any Seller Party or the Originator
(or any officers of any such Person) under or in connection with this Agreement,
any other Transaction Document or any other information or report delivered by
any such Person pursuant hereto or thereto, which shall have been false or
incorrect when made or deemed made; (b) (c) the failure by Seller, the Servicer
or the Originator to comply with any applicable law, rule order, writ, judgment,
award, injunction, decree or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or Contract
included therein with any such applicable law, rule or regulation or any failure
of the Originator to keep or perform any of its obligations, express or implied,
with respect to any Contract; (d) (e) any failure of Seller, the Servicer or the
Originator to perform its duties, covenants or other obligations in accordance
with the provisions of this Agreement or any other Transaction Document; (f) (g)
any products liability, personal injury or damage suit, or other similar claim
arising out of or in connection with merchandise, insurance or services that are
the subject of any Contract or any Receivable; (h) (i) any dispute, claim,
counterclaim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable (including, without
limitation, a defense based on such Receivable or the related Contract not being
a legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), any rescission with respect to any Receivable or any
Contract related thereto or any other claim resulting from the sale of the
merchandise or service related to such Receivable or the furnishing or failure
to furnish such merchandise or services; (j) (k) the commingling of Collections
of Receivables at any time with other funds; (l) (m) any investigation,
litigation or proceeding related to or arising from this Agreement or any other
Transaction Document, the transactions contemplated hereby, the use of the
proceeds of a purchase, the ownership of the Purchaser Interests or any other
investigation, litigation or proceeding relating to Seller, the Servicer or the
Originator in which any Indemnified Party becomes involved as a result of any of
the transactions contemplated hereby; (n) (o) any inability to litigate any
claim against any Obligor in respect of any Receivable as a result of such
Obligor being immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding; (p) (q) any
Servicer Default described in Section 9.1(f); (r) (s) any failure of Seller to
acquire and maintain legal and equitable title to, and ownership of any
Receivable and the Related Security and Collections with respect thereto from
the Originator, free and clear of any Adverse Claim (other than as created
hereunder); or any failure of Seller to give reasonably equivalent value to the
Originator under the Receivables Sale Agreement in consideration of the transfer
by the Originator of any Receivable, or any attempt by any Person to void such
transfer under statutory provisions or common law or equitable action; (t) (u)
any failure to vest and maintain vested in the Agent for the benefit of the
Purchasers, or to transfer to the Agent for the benefit of the Purchasers, legal
and equitable title to, and ownership of, a first priority perfected undivided
percentage ownership interest (to the extent of the Purchaser Interests
contemplated hereunder) or security interest in the Receivables, the Related
Security and the Collections, free and clear of any Adverse Claim (except as
created by the Transaction Documents); (v) (w) the failure to have filed, or any
delay in filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable, the Related Security and Collections with respect
thereto, and the proceeds of any thereof; (x) (y) any action or omission by any
Seller Party which reduces or impairs the rights of the Agent or the Purchasers
with respect to any Receivable or the value of any such Receivable; (z) (aa) any
attempt by any Person to void the purchase of the Purchaser Interest hereunder
under statutory provisions or common law or equitable action; and (bb) (cc) the
Year 2000 Problem.
ARTICLE 1.1 Increased Cost and Reduced Return . If after the date hereof, any
Funding Source shall be charged any fee, expense or increased cost on account of
the adoption of any applicable law, rule or regulation (including any applicable
law, rule or regulation regarding capital adequacy) or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency (a "Regulatory Change"): (i) that subjects any Funding Source to any
charge or withholding on or with respect to any Funding Agreement or a Funding
Source's obligations under a Funding Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Funding Source
of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Funding Source) or taxes excluded by
Section 10.1 or (ii) that imposes, modifies or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of a Funding Source, or credit
extended by a Funding Source pursuant to a Funding Agreement or (iii) that
imposes any other condition the result of which is to increase the cost to a
Funding Source of performing its obligations under a Funding Agreement, or to
reduce the rate of return on a Funding Source's capital as a consequence of its
obligations under a Funding Agreement, or to reduce the amount of any sum
received or receivable by a Funding Source under a Funding Agreement or to
require any payment calculated by reference to the amount of interests or loans
held or interest received by it, then, upon demand by the Agent, Seller shall
pay to the Agent, for the benefit of the relevant Funding Source, such amounts
charged to such Funding Source or such amounts to otherwise compensate such
Funding Source for such increased cost or such reduction.
ARTICLE 1.1 Other Costs and Expenses . Seller shall pay to the Agent and any
Purchaser on demand all costs and out-of-pocket expenses in connection with the
preparation, execution, delivery and administration of this Agreement, the
transactions contemplated hereby and the other documents to be delivered
hereunder, including without limitation, the cost of any Purchaser's auditors
auditing the books, records and procedures of Seller, reasonable fees and
out-of-pocket expenses of legal counsel for a Purchaser and the Agent (which
such counsel may be employees of any Purchaser or the Agent) with respect
thereto and with respect to advising any Purchaser and the Agent as to their
respective rights and remedies under this Agreement. Seller shall pay to the
Agent on demand any and all costs and expenses of the Agent and the Purchasers,
if any, including reasonable counsel fees and expenses in connection with the
enforcement of this Agreement and the other documents delivered hereunder and in
connection with any restructuring or workout of this Agreement or such
documents, or the administration of this Agreement following an Servicer
Default.
ARTICLE 1 THE AGENT
ARTICLE 1.1 Authorization and Action . Each Purchaser hereby designates and
appoints Bank One to act as its agent hereunder and under each other Transaction
Document, and authorizes the Agent to take such actions as agent on its behalf
and to exercise such powers as are delegated to the Agent by the terms of this
Agreement and the other Transaction Documents together with such powers as are
reasonably incidental thereto. The Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in any other
Transaction Document, or any fiduciary relationship with any Purchaser, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Agent shall be read into this Agreement or any
other Transaction Document or otherwise exist for the Agent. In performing its
functions and duties hereunder and under the other Transaction Documents, the
Agent shall act solely as agent for the Purchasers and does not assume nor shall
be deemed to have assumed any obligation or relationship of trust or agency with
or for any Seller Party or any of such Seller Party's successors or assigns. The
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement, any other Transaction
Document or applicable law. The appointment and authority of the Agent hereunder
shall terminate upon the indefeasible payment in full of all Aggregate Unpaids.
Each Purchaser hereby authorizes the Agent to execute each of the Uniform
Commercial Code financing statements on behalf of such Purchaser (the terms of
which shall be binding on such Purchaser).
ARTICLE 1.1 Delegation of Duties . The Agent may execute any of its duties under
this Agreement and each other Transaction Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
ARTICLE 1.1 Exculpatory Provisions . Neither the Agent nor any of its directors,
officers, agents or employees shall be (i) liable for any action lawfully taken
or omitted to be taken by it or them under or in connection with this Agreement
or any other Transaction Document (except for its, their or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Purchasers for any recitals, statements, representations or
warranties made by any Seller Party contained in this Agreement, any other
Transaction Document or any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement, or any other Transaction Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
any other Transaction Document or any other document furnished in connection
herewith or therewith, or for any failure of any Seller Party to perform its
obligations hereunder or thereunder, or for the satisfaction of any condition
specified in Article VI, or for the perfection, priority, condition, value or
sufficiency of any collateral pledged in connection herewith. The Agent shall
not be under any obligation to any Purchaser to ascertain or to inquire as to
the observance or performance of any of the agreements or covenants contained
in, or conditions of, this Agreement or any other Transaction Document, or to
inspect the properties, books or records of the Seller Parties. The Agent shall
not be deemed to have knowledge of any Servicer Default unless the Agent has
received notice from Seller or a Purchaser.
ARTICLE 1.1 Reliance by Agent . The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Seller), independent accountants and
other experts selected by the Agent. The Agent shall in all cases be fully
justified in failing or refusing to take any action under this Agreement or any
other Transaction Document unless it shall first receive such advice or
concurrence of a Company or the Required Financial Institutions or all of the
Purchasers, as applicable, as it deems appropriate and it shall first be
indemnified to its satisfaction by the Purchasers, provided that unless and
until the Agent shall have received such advice, the Agent may take or refrain
from taking any action, as the Agent shall deem advisable and in the best
interests of the Purchasers. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of a Company
or the Required Financial Institutions or all of the Purchasers, as applicable,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Purchasers.
ARTICLE 1.1 Non-Reliance on Agent and Other Purchasers . Each Purchaser
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including, without limitation, any review of the affairs of any Seller
Party, shall be deemed to constitute any representation or warranty by the
Agent. Each Purchaser represents and warrants to the Agent that it has and will,
independently and without reliance upon the Agent or any other Purchaser and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of Seller and
made its own decision to enter into this Agreement, the other Transaction
Documents and all other documents related hereto or thereto.
ARTICLE 1.1 Reimbursement and Indemnification . The Financial Institutions agree
to reimburse and indemnify the Agent and its officers, directors, employees,
representatives and agents ratably according to their Pro Rata Shares, to the
extent not paid or reimbursed by the Seller Parties (i) for any amounts for
which the Agent, acting in its capacity as Agent, is entitled to reimbursement
by the Seller Parties hereunder and (ii) for any other expenses incurred by the
Agent, in its capacity as Agent and acting on behalf of the Purchasers, in
connection with the administration and enforcement of this Agreement and the
other Transaction Documents.
ARTICLE 1.1 Agent in its Individual Capacity . The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with Seller or any Affiliate of Seller as though the Agent were not the Agent
hereunder. With respect to the acquisition of Purchaser Interests pursuant to
this Agreement, the Agent shall have the same rights and powers under this
Agreement in its individual capacity as any Purchaser and may exercise the same
as though it were not the Agent, and the terms "Financial Institution,"
"Purchaser," "Financial Institutions" and "Purchasers" shall include the Agent
in its individual capacity.
ARTICLE 1.1 Successor Agent . The Agent may, upon five days' notice to Seller
and the Purchasers, and the Agent will, upon the direction of all of the
Purchasers (other than the Agent, in its individual capacity) resign as Agent.
If the Agent shall resign, then the Required Financial Institutions during such
five-day period shall appoint from among the Purchasers a successor agent. If
for any reason no successor Agent is appointed by the Required Financial
Institutions during such five-day period, then effective upon the termination of
such five day period, the Purchasers shall perform all of the duties of the
Agent hereunder and under the other Transaction Documents and Seller and the
Servicer (as applicable) shall make all payments in respect of the Aggregate
Unpaids directly to the applicable Purchasers and for all purposes shall deal
directly with the Purchasers. After the effectiveness of any retiring Agent's
resignation hereunder as Agent, the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Transaction Documents and
the provisions of this Article XI and Article X shall continue in effect for its
benefit with respect to any actions taken or omitted to be taken by it while it
was Agent under this Agreement and under the other Transaction Documents.
ARTICLE 1 ASSIGNMENTS; PARTICIPATIONS
ARTICLE 1.1 Assignments .
ARTICLE 1.2
(a) Seller and each Financial Institution hereby agree and consent to the
complete or partial assignment by a Company of all or any portion of its rights
under, interest in, title to and obligations under this Agreement to the
Financial Institutions pursuant to Section 13.1 or, with the consent of the
Seller (such consent not to be unreasonably withheld) to any other Person, and
upon such assignment, a Company shall be released from its obligations so
assigned. Further, Seller and each Financial Institution hereby agree that any
assignee of a Company of this Agreement or all or any of the Purchaser Interests
of a Company shall have all of the rights and benefits under this Agreement as
if the term "a Company" explicitly referred to such party, and no such
assignment shall in any way impair the rights and benefits of a Company
hereunder. Neither the Seller nor the Servicer shall have the right to assign
its rights or obligations under this Agreement.
(a) Any Financial Institution may at any time and from time to time assign to
one or more Persons ("Purchasing Financial Institutions") all or any part of its
rights and obligations under this Agreement pursuant to an assignment agreement,
substantially in the form set forth in Exhibit II hereto (the "Assignment
Agreement") executed by such Purchasing Financial Institution and such selling
Financial Institution. The consent of each Company shall be required prior to
the effectiveness of any such assignment. Each assignee of a Financial
Institution must have a short-term debt rating of A-1 or better by Standard &
Poor's Ratings Services and P-1 by Moody's Investors Service, Inc. and must
agree to deliver to the Agent, promptly following any request therefor by the
Agent or any Company, an enforceability opinion in form and substance
satisfactory to the Agent and a Company. Upon delivery of the executed
Assignment Agreement to the Agent, such selling Financial Institution shall be
released from its obligations hereunder to the extent of such assignment.
Thereafter the Purchasing Financial Institution shall for all purposes be an
Financial Institution party to this Agreement and shall have all the rights and
obligations of an Financial Institution under this Agreement to the same extent
as if it were an original party hereto and no further consent or action by
Seller, the Purchasers or the Agent shall be required. (b) (c) Each of the
Financial Institutions agrees that in the event that it shall cease to have a
short-term debt rating of A-1 or better by Standard & Poor's Ratings Services
and P-1 by Moody's Investors Service, Inc. (an "Affected Financial
Institution"), such Affected Financial Institution shall be obliged, at the
request of a Company or the Agent, to assign all of its rights and obligations
hereunder to (x) another Financial Institution or (y) another funding entity
nominated by the Agent and acceptable to such Company, and willing to
participate in this Agreement through the Liquidity Termination Date in the
place of such Affected Financial Institution; provided that the Affected
Financial Institution receives payment in full, pursuant to an Assignment
Agreement, of an amount equal to such Financial Institution's Pro Rata Share of
the Capital and Yield owing to the Financial Institutions and all accrued but
unpaid fees and other costs and expenses payable in respect of its Pro Rata
Share of the Purchaser Interests of the Financial Institutions.
ARTICLE 1.1 Participations . Any Financial Institution may, in the ordinary
course of its business at any time sell to one or more Persons (each a
"Participant") participating interests in its Pro Rata Share of the Purchaser
Interests of the Financial Institutions, its obligation to pay each Company its
Acquisition Amounts or any other interest of such Financial Institution
hereunder. Notwithstanding any such sale by a Financial Institution of a
participating interest to a Participant, such Financial Institution's rights and
obligations under this Agreement shall remain unchanged, such Financial
Institution shall remain solely responsible for the performance of its
obligations hereunder, and Seller, each Company and the Agent shall continue to
deal solely and directly with such Financial Institution in connection with such
Financial Institution's rights and obligations under this Agreement. Each
Financial Institution agrees that any agreement between such Financial
Institution and any such Participant in respect of such participating interest
shall not restrict such Financial Institution's right to agree to any amendment,
supplement, waiver or modification to this Agreement, except for any amendment,
supplement, waiver or modification described in Section 14.1(b)(i).
ARTICLE 1 LIQUIDITY FACILITY
ARTICLE 2.1 Transfer to Financial Institutions . Each Financial Institution
hereby agrees, subject to Section 13.4, that immediately upon written notice
from a Company delivered on or prior to the Liquidity Termination Date, it shall
acquire by assignment from such Company, without recourse or warranty, its Pro
Rata Share of one or more of the Purchaser Interests of such Company as
specified by such Company. Each such assignment by a Company shall be made pro
rata among the Financial Institutions except for pro rata assignments to one or
more Terminating Financial Institutions pursuant to Section 13.6. Each such
Financial Institution shall, no later than 1:00 p.m. (Chicago time) on the date
of such assignment, pay in immediately available funds (unless another form of
payment is otherwise agreed between a Company and such Financial Institution) to
the Agent at an account designated by the Agent, for the benefit of the Company
delivering such notice, its Acquisition Amount. Unless a Financial Institution
has notified the Agent that it does not intend to pay its Acquisition Amount,
the Agent may assume that such payment has been made and may, but shall not be
obligated to, make the amount of such payment available to such Company in
reliance upon such assumption. Each Company hereby sells and assigns to the
Agent for the ratable benefit of the Financial Institutions, and the Agent
hereby purchases and assumes from each Company, effective upon the receipt by
such Company of the Company Transfer Price, the Purchaser Interests of such
Company which are the subject of any transfer pursuant to this Article XIII.
ARTICLE 1.1 Transfer Price Reduction Yield . If the Adjusted Funded Amount is
included in the calculation of the Company Transfer Price for any Purchaser
Interest of a Company, each Financial Institution agrees that the Agent shall
pay to such Company the Reduction Percentage of any Yield received by the Agent
with respect to such Purchaser Interest.
ARTICLE 1.1 Payments to any Company . In consideration for the reduction of a
Company's Company Transfer Price by the Company Transfer Price Reduction,
effective only at such time as the aggregate amount of the Capital of the
Purchaser Interests of the Financial Institutions equals the Company Residual,
each Financial Institution hereby agrees that the Agent shall not distribute to
the Financial Institutions and shall immediately remit to such Company any
Yield, Collections or other payments received by it to be applied pursuant to
the terms hereof or otherwise to reduce the Capital of the Purchaser Interests
of the Financial Institutions.
ARTICLE 1.1 Limitation on Commitment to Purchase from any Company .
Notwithstanding anything to the contrary in this Agreement, no Financial
Institution shall have any obligation to purchase any Purchaser Interest from
any Company, pursuant to Section 13.1 or otherwise, if:
(a) a Company shall have voluntarily commenced any proceeding or filed any
petition under any bankruptcy, insolvency or similar law seeking the
dissolution, liquidation or reorganization of the Company or taken any corporate
action for the purpose of effectuating any of the foregoing; or (b) (c)
involuntary proceedings or an involuntary petition shall have been commenced or
filed against any Company by any Person under any bankruptcy, insolvency or
similar law seeking the dissolution, liquidation or reorganization of the
Company and such proceeding or petition shall have not been dismissed.
ARTICLE 1.1 Defaulting Financial Institutions . If one or more Financial
Institutions defaults in its obligation to pay its Acquisition Amount pursuant
to Section 13.1 (each such Financial Institution shall be called a "Defaulting
Financial Institution" and the aggregate amount of such defaulted obligations
being herein called the "Company Transfer Price Deficit"), then upon notice from
the Agent, each Financial Institution other than the Defaulting Financial
Institutions (a "Non-Defaulting Financial Institution") shall promptly pay to
the Agent, in immediately available funds, an amount equal to the lesser of (x)
such Non-Defaulting Financial Institution's proportionate share (based upon the
relative Commitments of the Non-Defaulting Financial Institutions), after
excluding the Commitment of any Approved Unconditional Liquidity Providers) of
the CompanyTransfer Price Deficit and (y) the unused portion of such
Non-Defaulting Financial Institution's Commitment; provided, however, that if an
Approved Unconditional Liquidity Provider is the Defaulting Financial
Institution, the Non-Defaulting Financial Institutions shall have no obligation
to pay any amount to the Agent pursuant to this Section 13.5 as a result of a
default by such Approved Unconditional Liquidity Provider; provided, further,
that in no event shall any Approved Unconditional Liquidity Provider be required
to make any payment as a Non-Defaulting Financial Institution pursuant to this
Section 13.5. A Defaulting Financial Institution shall forthwith upon demand pay
to the Agent for the account of the Non-Defaulting Financial Institutions all
amounts paid by each Non-Defaulting Financial Institution on behalf of such
Defaulting Financial Institution, together with interest thereon, for each day
from the date a payment was made by a Non-Defaulting Financial Institution until
the date such Non-Defaulting Financial Institution has been paid such amounts in
full, at a rate per annum equal to the Federal Funds Effective Rate plus two
percent (2%). In addition, without prejudice to any other rights that a Company
may have under applicable law, each Defaulting Financial Institution shall pay
to such Company forthwith upon demand, the difference between such Defaulting
Financial Institution's unpaid Acquisition Amount and the amount paid with
respect thereto by the Non-Defaulting Financial Institutions, together with
interest thereon, for each day from the date of the Agent's request for such
Defaulting Financial Institution's Acquisition Amount pursuant to Section 13.1
until the date the requisite amount is paid to such Company in full, at a rate
per annum equal to the Federal Funds Effective Rate plus two percent (2%).
ARTICLE 1.1 Terminating Financial Institutions .
ARTICLE 1.2
(a) Each Financial Institution hereby agrees to deliver written notice to the
Agent not more than 30 Business Days and not less than 5 Business Days prior to
the Liquidity Termination Date indicating whether such Financial Institution
intends to renew its Commitment hereunder. If any Financial Institution fails to
deliver such notice on or prior to the date that is 5 Business Days prior to the
Liquidity Termination Date, such Financial Institution will be deemed to have
declined to renew its Commitment (each Financial Institution which has declined
or has been deemed to have declined to renew its Commitment hereunder, a
"Non-Renewing Financial Institution"). The Agent shall promptly notify each
Company of each Non-Renewing Financial Institution and each Company, in its sole
discretion, may (A) to the extent of Commitment Availability, declare that such
Non-Renewing Financial Institution's Commitment shall, to such extent,
automatically terminate on a date specified by such Company on or before the
Liquidity Termination Date or (B) upon one (1) Business Day's notice to such
Non-Renewing Financial Institution assign to such Non-Renewing Financial
Institution on a date specified by such Company its Pro Rata Share of the
aggregate Purchaser Interests then held by such Company, subject to, and in
accordance with, Section 13.1. In addition, such Company may, in its sole
discretion, at any time (x) to the extent of Commitment Availability, declare
that any Affected Financial Institution's Commitment shall automatically
terminate on a date specified by Company or (y) assign to any Affected Financial
Institution on a date specified by Company its Pro Rata Share of the aggregate
Purchaser Interests then held by such Company, subject to, and in accordance
with, Section 13.1 (each Affected Financial Institution or each Non-Renewing
Financial Institution is hereinafter referred to as a "Terminating Financial
Institution"). The parties hereto expressly acknowledge that any declaration of
the termination of any Commitment, any assignment pursuant to this Section 13.6
and the order of priority of any such termination or assignment among
Terminating Financial Institutions shall be made by such Company in its sole and
absolute discretion.
(a) Upon any assignment to a Terminating Financial Institution as provided in
this Section 13.6, any remaining Commitment of such Terminating Financial
Institution shall automatically terminate. Upon reduction to zero of the Capital
of all of the Purchaser Interests of a Terminating Financial Institution (after
application of Collections thereto pursuant to Sections 2.2 and 2.3) all rights
and obligations of such Terminating Financial Institution hereunder shall be
terminated and such Terminating Financial Institution shall no longer be a
"Financial Institution" hereunder; provided, however, that the provisions of
Article X shall continue in effect for its benefit with respect to Purchaser
Interests held by such Terminating Financial Institution prior to its
termination as a Financial Institution. (b)
ARTICLE 1 MISCELLANEOUS
ARTICLE 1.1 Waivers and Amendments .
ARTICLE 1.2
(a) No failure or delay on the part of the Agent or any Purchaser in exercising
any power, right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other further exercise thereof or the exercise of any other
power, right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by law. Any
waiver of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given.
(a) No provision of this Agreement may be amended, supplemented, modified or
waived except in writing in accordance with the provisions of this Section
14.1(b). A Company, Seller and the Agent, at the direction of the Required
Financial Institutions, may enter into written modifications or waivers of any
provisions of this Agreement, provided, however, that no such modification or
waiver shall: (b) (i) without the consent of each affected Purchaser, (A) extend
the Liquidity Termination Date or the date of any payment or deposit of
Collections by Seller or the Servicer, (B) reduce the rate or extend the time of
payment of Yield or any CP Costs (or any component of Yield or CP Costs), (C)
reduce any fee payable to the Agent for the benefit of the Purchasers, (D)
except pursuant to Article XII hereof, change the amount of the Capital of any
Purchaser, any Financial Institution's Pro Rata Share (except pursuant to
Sections 13.1 or 13.5) or any Financial Institution's Commitment, (E) amend,
modify or waive any provision of the definition of Required Financial
Institutions or this Section 14.1(b), (F) consent to or permit the assignment or
transfer by Seller of any of its rights and obligations under this Agreement,
(G) change the definition of "Specified Reserve Account Balance," or (H) amend
or modify any defined term (or any defined term used directly or indirectly in
such defined term) used in clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set forth in such clauses; or
(i) without the written consent of the then Agent, amend, modify or waive
any provision of this Agreement if the effect thereof is to affect the
rights or duties of such Agent.
Notwithstanding the foregoing, (i) without the consent of the Financial
Institutions, but with the consent of Seller, the Agent may amend this Agreement
solely to add additional Persons as Financial Institutions hereunder and (ii)
the Agent, the Required Financial Institutions and any Company may enter into
amendments to modify any of the terms or provisions of Article XI, Article XII,
Section 14.13 or any other provision of this Agreement without the consent of
Seller, provided that such amendment has no negative impact upon Seller. Any
modification or waiver made in accordance with this Section 14.1 shall apply to
each of the Purchasers equally and shall be binding upon Seller, the Purchasers
and the Agent.
ARTICLE 1.1 Notices. Except as provided in this Section 14.2, all
communications and notices provided for hereunder shall be in writing (including
bank wire, telecopy or electronic facsimile transmission, or similar writing)
and shall be given to the other parties hereto at their respective addresses and
telecopy numbers set forth on the signature pages hereof or at such other
address or telecopy number as such Person may hereafter specify for the purpose
of notice to each of the other parties hereto. Each such notice or other
communication shall be effective (i) if given by telecopy upon the receipt
thereof, (ii) if given by mail, three (3) Business Days after the time such
communication is deposited in the mail with first class postage prepaid or (iii)
if given by any other means, when received at the address specified in this
Section 14.2. Seller hereby authorizes the Agent to effect purchases and Tranche
Period and Discount Rate selections based on telephonic notices made by any
Person whom the Agent in good faith believes to be acting on behalf of Seller.
Seller agrees to deliver promptly to the Agent a written confirmation of each
telephonic notice signed by an authorized officer of Seller; provided, however,
the absence of such confirmation shall not affect the validity of such notice.
If the written confirmation differs from the action taken by the Agent, the
records of the Agent shall govern absent manifest error.
ARTICLE 1.1 Ratable Payments . If any Purchaser, whether by setoff or otherwise,
has payment made to it with respect to any portion of the Aggregate Unpaids
owing to such Purchaser (other than payments received pursuant to Section 10.2
or 10.3) in a greater proportion than that received by any other Purchaser
entitled to receive a ratable share of such Aggregate Unpaids, such Purchaser
agrees, promptly upon demand, to purchase for cash without recourse or warranty
a portion of such Aggregate Unpaids held by the other Purchasers so that after
such purchase each Purchaser will hold its ratable proportion of such Aggregate
Unpaids; provided that if all or any portion of such excess amount is thereafter
recovered from such Purchaser, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
ARTICLE 1.1 Protection of Ownership Interests of the Purchasers . ARTICLE 1.2
(a) Seller agrees that from time to time, at its expense, it will promptly
execute and deliver all instruments and documents, and take all actions, that
may be necessary or desirable, or that the Agent may request, to perfect,
protect or more fully evidence the Purchaser Interests, or to enable the Agent
or the Purchasers to exercise and enforce their rights and remedies hereunder.
At any time, after the occurrence of an Servicer Default the Agent may, or the
Agent may direct Seller or the Servicer to, notify the Obligors of Receivables,
at Seller's expense, of the ownership or security interests of the Purchasers
under this Agreement and may also direct that payments of all amounts due or
that become due under any or all Receivables be made directly to the Agent or
its designee. Seller or the Servicer (as applicable) shall, at any Purchaser's
request, withhold the identity of such Purchaser in any such notification.
(a) If any Seller Party fails to perform any of its obligations hereunder, the
Agent or any Purchaser may (but shall not be required to) perform, or cause
performance of, such obligations, and the Agent's or such Purchaser's costs and
expenses incurred in connection therewith shall be payable by Seller as provided
in Section 10.3. Each Seller Party irrevocably authorizes the Agent at any time
and from time to time in the sole discretion of the Agent, and appoints the
Agent as its attorney-in-fact, to act on behalf of such Seller Party (i) to
execute on behalf of Seller as debtor and to file financing statements necessary
or desirable in the Agent's sole discretion to perfect and to maintain the
perfection and priority of the interest of the Purchasers in the Receivables and
(ii) to file a carbon, photographic or other reproduction of this Agreement or
any financing statement with respect to the Receivables as a financing statement
in such offices as the Agent in its sole discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the interests of the
Purchasers in the Receivables. This appointment is coupled with an interest and
is irrevocable.
ARTICLE 1.1 Confidentiality .
ARTICLE 1.2
(a) Each Seller Party and each Purchaser shall maintain and shall cause each of
its employees and officers to maintain the confidentiality of this Agreement and
the other confidential or proprietary information with respect to the Agent and
any Company and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated
herein, except that such Seller Party and such Purchaser and its officers and
employees may disclose such information to such Seller Party's and such
Purchaser's external accountants and attorneys and as required by any applicable
law or order of any judicial or administrative proceeding.
(a) Anything herein to the contrary notwithstanding, each Seller Party hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to the Agent, the Financial Institutions or any Company by each other, (ii) by
the Agent or the Purchasers to any prospective or actual assignee or participant
of any of them and (iii) by the Agent to any rating agency, Commercial Paper
dealer or provider of a surety, guaranty or credit or liquidity enhancement to a
Company or any entity organized for the purpose of purchasing, or making loans
secured by, financial assets for which Bank One acts as the administrative agent
and to any officers, directors, employees, outside accountants and attorneys of
any of the foregoing. In addition, the Purchasers and the Agent may disclose any
such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law).
ARTICLE 1.1 Bankruptcy Petition . Seller, the Servicer, the Agent, each Company
and each Financial Institution hereby covenants and agrees that, prior to the
date that is one year and one day after the payment in full of all outstanding
senior indebtedness of the Seller, a Company or any Unconditional Liquidity
Provider, it will not institute against, or join any other Person in instituting
against the Seller, such Company or any such Unconditional Liquidity Provider,
respectively, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
ARTICLE 1.1 Limitation of Liability . Except with respect to any claim arising
out of the willful misconduct or gross negligence of a Company, the Agent or any
Financial Institution, no claim may be made by any Seller Party or any other
Person against a Company, the Agent or any Financial Institution or their
respective Affiliates, directors, officers, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Seller Party hereby waives,
releases, and agrees not to sue upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
ARTICLE 1.1 CHOICE OF LAW . THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
ARTICLE 1.1 CONSENT TO JURISDICTION . EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT
SITTING IN CHICAGO, ILLINOIS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO
THIS AGREEMENT AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM.
ARTICLE 1.1 WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY THE
SELLER PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
ARTICLE 1.1 Integration; Binding Effect; Survival of Terms .
----------------------------------------------
ARTICLE 1.2
(a) This Agreement and each other Transaction Document contain the final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
(a) This Agreement 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). This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms and
shall remain in full force and effect until terminated in accordance with its
terms; provided, however, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by any Seller Party pursuant to
Article V, (ii) the indemnification and payment provisions of Article X, and
Sections 14.5 and 14.6 shall be continuing and shall survive any termination of
this Agreement.
ARTICLE 1.1 Counterparts; Severability; Section References . This Agreement 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. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
ARTICLE 1.1 Bank One Roles . Each of the Financial Institutions acknowledges
that Bank One acts, or may in the future act, (i) as administrative agent for
Company or any Financial Institution, (ii) as issuing and paying agent for the
Commercial Paper, (iii) to provide credit or liquidity enhancement for the
timely payment for the Commercial Paper and (iv) to provide other services from
time to time for Company or any Financial Institution (collectively, the "Bank
One Roles"). Without limiting the generality of this Section 14.13, each
Financial Institution hereby acknowledges and consents to any and all Bank One
Roles and agrees that in connection with any Bank One Role, Bank One may take,
or refrain from taking, any action that it, in its discretion, deems
appropriate, including, without limitation, in its role as administrative agent
for Company, and the giving of notice to the Agent of a mandatory purchase
pursuant to Section 13.1.
ARTICLE 1.1 Characterization .
ARTICLE 1.2
(a) It is the intention of the parties hereto that each purchase hereunder shall
constitute and be treated as an absolute and irrevocable sale, which purchase
shall provide the Agent for the benefit of the Purchasers with the full benefits
of ownership of the applicable Purchaser Interest. Except as specifically
provided in this Agreement, each sale of a Purchaser Interest hereunder is made
without recourse to Seller; provided, however, that (i) Seller shall be liable
to each Purchaser and the Agent for all representations, warranties, covenants
and indemnities made by Seller pursuant to the terms of this Agreement, and (ii)
such sale does not constitute and is not intended to result in an assumption by
any Purchaser or the Agent or any assignee thereof of any obligation of Seller
or the Originator or any other person arising in connection with the
Receivables, the Related Security, or the related Contracts, or any other
obligations of Seller or the Originator.
(a) In addition to any ownership interest which the Agent for the benefit of the
Purchasers may from time to time acquire pursuant hereto, the Seller hereby
grants to the Agent for the ratable benefit of the Purchasers a valid and
perfected security interest in all of the Seller's right, title and interest in,
to and under all Receivables now existing or hereafter arising, the Collections,
each Designated Account, all Designated Account Property, all other Related
Security, all other rights and payments relating to such Receivables, and all
proceeds of any thereof prior to all other liens on and security interests
therein to secure the prompt and complete payment of the Aggregate Unpaids.
After an Servicer Default, the Agent and the Purchasers shall have, in addition
to the rights and remedies that they may have under this Agreement, all other
rights and remedies provided to a secured creditor after default under the UCC
and other applicable law, which rights and remedies shall be cumulative.
ARTICLE 1.1 Non-Recourse Obligations .
ARTICLE 1.2
(a) Notwithstanding anything to the contrary contained herein, the obligations
of the Seller under the Transaction Documents are limited recourse obligations
of the Seller and shall be payable only at such time as funds are available
therefor thereunder from the Receivables, the Related Security, the Collections,
the Designated Accounts and the other rights transferred to the Seller pursuant
to the Sale Agreement or specified in this Agreement, and, to the extent funds
are not so available to pay such obligations, the claims relating thereto shall
not constitute a claim against the Seller but shall continue to accrue.
(a) The Seller shall be liable in accordance with this Agreement and the other
Transaction Documents only to the extent of the obligations in this Agreement or
any other Transaction Documents specifically undertaken by the Seller. (b) (c)
(d)
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
By:
Name: ________________________________
Title: _________________________________
Address: c/o Navistar Financial Corporation
2850 West Golf Road
Rolling Meadows, IL 60008
Fax: (847) 734-4090
NAVISTAR FINANCIAL CORPORATION
By:
Name: ________________________________
Title: _________________________________
Address: 2850 West Golf Road
Rolling Meadows, IL 60008
Fax: (847) 734-4090
FALCON ASSET
SECURITIZATION CORPORATION
By:
Name: ________________________________
Title: _________________________________
Address: c/o Bank One, NA
(Main Office Chicago)
Asset Backed Finance
Mail Code IL1-0079,1-19
1 Bank One Plaza
Chicago, IL 60670-0079
Fax: (312) 732-1844
INTERNATIONAL SECURITIZATION
CORPORATION
By:
Name: ________________________________
Title: _________________________________
Address: c/o Bank One, NA
(Main Office Chicago) as Agent
Asset Backed Finance
Mail Code IL1-0079, 1-19
1 Bank One Plaza
Chicago, IL 60670-0079
Fax: (312) 732-1844
BANK ONE, NA, (MAIN OFFICE CHICAGO)
as a Financial Institution, as Agent and as
Securities Intermediary
By:
Name: ________________________________
Title: _________________________________
Address: Bank One, NA
(Main Office Chicago)
Asset Backed Finance
Mail Code IL1-0596
1 Bank One Plaza
Chicago, IL 60670-0596
Fax: (312) 732-4487
<PAGE>
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Accounting Date" shall mean, with respect to a Settlement Date, the
last day of the related Monthly Period.
"Accrual Period" means each calendar month, provided that the initial
Accrual Period hereunder means the period from (and including) the date of the
initial purchase hereunder to (and including) the last day of the calendar month
thereafter.
"Acquisition Amount" means, on the date of any purchase from a Company
of Purchaser Interests pursuant to Section 13.1, (a) with respect to any
Financial Institution other than Bank One and other than any Unconditional
Liquidity Provider, (but including Bank One if it is at any time a Terminating
Financial Institution) the lesser of (i) such Financial Institution's Pro Rata
Share of the sum of (A) the lesser of (1) the Adjusted Liquidity Price of each
such Purchaser Interest and (2) the Capital of each such Purchaser Interest and
(B) all accrued and unpaid CP Costs for each such Purchaser Interest and (ii)
such Financial Institution's unused Commitment, (b) with respect to each
Unconditional Liquidity Provider, the lesser of (x) such Unconditional Liquidity
Provider's Pro Rata Share of the sum of (1) the Capital of each such Purchaser
Interest and (2) all accrued and unpaid CP Costs for each such Purchaser
Interest and (y) such Unconditional Liquidity Provider's unused Commitment and
(c) with respect to Bank One solely in the instance of a purchase from such
Company of Purchaser Interests by all of the Financial Institutions, the
difference between (a) the Company Transfer Price and (b) the aggregate amount
payable by all other Financial Institutions on such date pursuant to clauses (a)
and (b) above.
"Actual Payment"shall mean with respect to a Settlement Date and to a
Receivable, all payments received by the Servicer from or for the account of the
Obligor during the related Monthly Period (and, in the case of the first
Settlement Date, all payments received by the Servicer from or for the account
of the Obligor on or after the Cutoff Date) except for any Overdue Payments or
Supplemental Servicing Fees.
"Adjusted Funded Amount" means, in determining the Company Transfer
Price for any Purchaser Interest, an amount equal to the sum of (a) the Adjusted
Liquidity Price of each such Purchaser Interest and (b) an amount equal to each
Unconditional Liquidity Provider's Pro Rata Share of the difference between (i)
the Adjusted Liquidity Price of each such Purchaser Interest and (ii) the
Capital of each such Purchaser Interest.
"Adjusted Liquidity Price" means, in determining the Company Transfer
Price for any Purchaser Interest on any date, an amount equal to
[OBJECT OMITTED]
where:
PI = the undivided percentage interest evidenced
by such Purchaser Interest on such date.
ARB = the Aggregate Receivables Balance as of
the Accounting Date related to the most
recent Settlement Date.
RAF = the amount of funds on deposit in the Reserve
Account on such date.
DC = any accrued but unpaid Warranty Payments,
Administrative Purchase Payments and
Optional Purchase Proceeds.
Each of the foregoing shall be determined from the most recent Monthly Report
received from the Servicer.
"Administrative Purchase Payment" shall mean, with respect to a
Settlement Date and to an Administrative Receivable purchased as of the related
Accounting Date, a release of all claims for reimbursement of Monthly Advances
made on such Administrative Receivable plus a payment equal to the sum of (i)
the sum of the Scheduled Payments on such Administrative Receivable due after
the Accounting Date minus the Rebate, (ii) any reimbursement made pursuant to
the last sentence of Section 8.7 of this Agreement with respect to such
Receivable, and (iii) all past due Scheduled Payments with respect to which a
Monthly Advance has not been made.
"Administrative Receivable" shall mean, a Receivable which the Servicer
is required to purchase as of an Accounting Date pursuant to Section 7.2(f) of
this Agreement or which the Servicer has elected to repurchase as of an
Accounting Date pursuant to Section 2.4 of this Agreement.
"Adverse Claim" means a lien, security interest, charge or encumbrance,
or other right or claim in, of or on any Person's assets or properties in favor
of any other Person.
"Affected Financial Institution" has the meaning specified in Section
12.1(c).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Agreement" means this Receivables Purchase Agreement, as it may be
amended or modified and in effect from time to time.
"Aggregate Capital" means, on any date of determination, the aggregate
amount of Capital of all Purchaser Interests outstanding on such date.
"Aggregate Losses" means, with respect to a Monthly Period, the sum of
(i) the aggregate of the Receivable Balances of all Receivables newly designated
during such Monthly Period as Liquidating Receivables, plus (ii) the aggregate
principal portion of Scheduled Payments due but not received with respect to all
such Receivables prior to the date any such Receivable was designated a
Liquidating Receivable minus (iii) Liquidation Proceeds collected during such
Monthly Period with respect to all Liquidating Receivables.
"Aggregate Receivables Balance" means as of any date, the sum of the
Receivable Balances of all outstanding Receivables (other than Liquidating
Receivables).
"Aggregate Unpaids" means, at any time, an amount equal to the sum of
all accrued and unpaid fees under the Fee Letter, CP Costs, Yield, Capital and
all other unpaid Obligations (whether due or accrued) at such time.
"Allocated CP Costs," with respect to a Purchaser Interest, means the
CP Costs accrued and allocated to such Purchaser Interest as set forth in
Section 3.1.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the annual
rate of Finance Charges stated in the Receivable.
"Approved Unconditional Liquidity Provider" means an Unconditional
Liquidity Provider which has received approval from S&P and Moody's to be
relieved from any obligation to pay amounts as a Non-Defaulting Financial
Institution pursuant to Section 13.5 hereof.
"Assignment Agreement" has the meaning set forth in Section 12.1(b).
"Authorized Officer" shall mean, with respect to any Seller Party, its
respective controller, treasurer, chief financial officer, or president.
"Available Amount" shall mean, with respect to a Settlement Date, the
sum of the Collected Interest and the Collected Principal for such Settlement
Date.
"Bank One" means Bank One, NA (Main Office Chicago), in its individual
capacity and its successors.
"Base Rate" means a rate per annum equal to the corporate base rate,
prime rate or base rate of interest, as applicable, announced by the Bank One or
Bank One Corporation from time to time, changing when and as such rate changes.
"Basic Servicing Fee" shall mean, with respect to a Monthly Period, the
fee payable to the Servicer for services rendered during such Monthly Period,
which shall be equal to one-twelfth of the Basic Servicing Fee Rate multiplied
by the Aggregate Receivables Balance as of the first day of such Monthly Period.
"Basic Servicing Fee Rate" shall mean 1.0% per annum.
"Broken Funding Costs" means for any Purchaser Interest that (i) is
assigned under Article XIII, (ii) does not become the subject of a Clean-up Call
following delivery of the Clean-up Call Notice or (iii) is terminated prior to
the date on which it was originally scheduled to end, an amount equal to the
excess, if any, of (A) the CP Costs or Yield (as applicable) that would have
accrued during the remainder of the Tranche Periods or the tranche periods for
Commercial Paper determined by the Agent to relate to such Purchaser Interest
(as applicable) subsequent to the date of such assignment or termination (or, in
the case of such Clean-up Call, the date on which such Clean-up Call was to have
occurred pursuant to the Clean-up Call Notice) of the Capital of such Purchaser
Interest if such Clean-up Call, assignment or termination had not occurred or if
such Clean-up Cell Notice had not been delivered, over (B) the sum of (x) to the
extent all or a portion of such Capital is allocated to another Purchaser
Interest, the amount of CP Costs or Yield actually accrued during the remainder
of such period on such Capital for the new Purchaser Interest, and (y) to the
extent such Capital is not allocated to another Purchaser Interest, the income,
if any, actually received during the remainder of such period by the holder of
such Purchaser Interest from investing the portion of such Capital not so
allocated. In the event that the amount referred to in clause (B) exceeds the
amount referred to in clause (A), the relevant Purchaser or Purchasers agree to
pay to Seller the amount of such excess. All Broken Funding Costs shall be due
and payable hereunder upon demand.
"Business Day" means any day on which banks are not authorized or
required to close in New York, New York or Chicago, Illinois and The Depository
Trust Company of New York is open for business, and, if the applicable Business
Day relates to any computation or payment to be made with respect to the LIBO
Rate, any day on which dealings in dollar deposits are carried on in the London
interbank market.
"Capital" of any Purchaser Interest means, at any time, (A) the
Purchase Price of such Purchaser Interest, minus (B) the amounts applied
pursuant to clauses (v) and (ix) of Section 2.1(c) to reduce the Capital of such
Purchaser Interest in accordance with the terms and conditions of this
Agreement; provided that such Capital shall be restored (in accordance with
Section 2.4) in the amount of any Collections or other payments so received and
applied if at any time the distribution of such Collections or payments are
rescinded, returned or refunded for any reason.
"Collected Interest" shall mean, with respect to any Settlement Date,
the sum of the following amounts with respect to the related Monthly Period, in
each case computed in accordance with the actuarial method: (i) that portion of
all collections on Receivables (other than Liquidating Receivables) allocable to
interest or Prepayment Surplus, (ii) that portion of all Liquidation Proceeds
allocable to interest in accordance with the Servicer*s Customary Servicing
Procedures, (iii) that portion of all Monthly Advances allocable to interest,
(iv) that portion of all Warranty Payments, Administrative Purchase Payments or
the Optional Purchase Proceeds allocable to accrued interest or Prepayment
Surplus, (v) all amounts received on the related Cap Payment Date pursuant to
any Satisfactory Cap (as such terms are defined in the Hedging Letter) purchased
as provided in the Hedging Letter, and (vi) any Investment Earnings funds
invested in Eligible Investments in the Collection Account and Reserve Account;
minus an amount equal to the sum of (x) all amounts received on any Receivable
(other than a Liquidating Receivable) to the extent of the aggregate Outstanding
Monthly Advances of interest with respect to such Receivable and (y) Liquidation
Proceeds with respect to a particular Receivable to the extent of the
Outstanding Monthly Advances of interest thereon.
"Collected Principal" shall mean, with respect to any Settlement Date,
the sum of the following amounts with respect to the related Monthly Period in
each case computed in accordance with the actuarial method: (i) that portion of
all collections on Receivables (other than Liquidating Receivables) allocable to
principal, (ii) that portion of Liquidation Proceeds allocable to principal in
accordance with the Servicer*s Customary Servicing Procedures, (iii) that
portion of all Monthly Advances allocable to principal, (iv) that portion of all
Warranty Payments, Administrative Purchase Payments or the Optional Purchase
Proceeds allocable to principal, and (v) that portion of all Prepayments
allocable to principal; less an amount equal to the sum of (x) amounts received
on any Receivable (other than a Liquidating Receivable) to the extent of the
aggregate Outstanding Monthly Advances of principal with respect to such
Receivable and (y) Liquidation Proceeds with respect to a particular Receivable
to the extent of the Outstanding Monthly Advances of principal and amounts
representing reimbursement for Liquidation Expenses with respect to such
Receivables pursuant to this Agreement.
"Collection Account" shall mean the account designated as such,
established and maintained pursuant to Section 1.4 hereof.
"Collections" shall mean all cash collections and other cash proceeds
of the Receivables (other than Supplemental Servicing Fees) received by the
Servicer or in the Collection Account, including, without limitation, (a)
Collected Interest, (b) Collected Principal and (c) recoveries and cash proceeds
of Related Security with respect to the Receivables.
"Commercial Paper" shall mean, collectively, the short-term promissory
notes of any Company issued by any Company in the United States commercial paper
market.
"Commitment" means, for each Financial Institution, the commitment of
such Financial Institution to purchase Purchaser Interests from the Companies,
in an amount not to exceed, (i) in the aggregate, the amount set forth opposite
such Financial Institution's name on Schedule A to this Agreement, as such
amount may be modified in accordance with the terms hereof (including, without
limitation, any termination of Commitments pursuant to Section 13.6 hereof) and
(ii) with respect to any individual purchase hereunder, its Pro Rata Share of
the Purchase Price therefor. Without limiting the foregoing, the aggregate
Commitments shall be reduced on each Settlement Date in an amount equal to the
amount of Capital paid to the Agent on such date.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Residual" means the sum of the Company Transfer Price
Reductions.
"Company Transfer Price" means, with respect to the assignment by a
Company of one or more Purchaser Interests to the Agent for the benefit of the
Financial Institutions pursuant to Section 13.1, the sum of (i) the lesser of
(a) the Capital of each such Purchaser Interest and (b) the Adjusted Funded
Amount of each such Purchaser Interest and (ii) all accrued and unpaid CP Costs
for each such Purchaser Interest.
"Company Transfer Price Deficit" has the meaning set forth in Section
13.5.
"Company Transfer Price Reduction" means in connection with the
assignment of a Purchaser Interest by any Company to the Agent for the benefit
of the Financial Institutions, the positive difference between (i) the Capital
of such Purchaser Interest and (ii) the Adjusted Funded Amount for such
Purchaser Interest.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or application for a letter of credit.
"Contract" means, with respect to any Receivable, the retail note or
any other documentation which evidences such Receivable.
"Conversion Date" means the earlier of March 31, 2000, or the date
declared by the Servicer, with ten (10) Business Days prior notice to the Agent.
"CP Costs" means, for each day for a Company, the sum of (i) discount
accrued on Pooled Commercial Paper issued by such Company on such day for a
Company, plus (ii) any and all accrued commissions in respect of placement
agents and Commercial Paper dealers, and issuing and paying agent fees incurred,
in respect of such Pooled Commercial Paper for such day, plus (iii) other costs
associated with funding small or odd-lot amounts with respect to all receivable
purchase facilities which are funded by such Pooled Commercial Paper for such
day, minus (iv) any accrual of income net of expenses received on such day from
investment of collections received under all receivable purchase facilities
funded substantially with such Pooled Commercial Paper, minus (v) any payment
received on such day net of expenses in respect of broken funding costs related
to the prepayment of any receivables interest of the Companies pursuant to the
terms of any receivable purchase facilities funded substantially with Pooled
Commercial Paper.
"Custodian" shall mean NFC, as Servicer, or another custodian named
from time to time in the Custodian Agreement.
"Custodian Agreement" shall mean the Custodian Agreement, dated as of
November 12, 1999, between the Custodian and the Seller, as amended, modified or
supplemented from time to time.
"Customary Servicing Procedures" means the material aspects of
Servicer's customary servicing procedures disclosed by the Servicer to the Agent
at the due diligence review conducted by the Agent on October 21, 1999.
"Cutoff Date" shall mean October 1, 1999.
"Dealer" shall mean (i) a Person with whom NITC has a valid dealer
sales/maintenance agreement to sell NITC vehicles, (ii) a Person with whom NFC
has an agreement to extend new or used truck floor plan financing terms or (iii)
a truck, bus, or trailer equipment manufacturer with whom NITC has a valid
agreement to sell NITC vehicles.
"Dealer Liability" shall mean, with respect to a Receivable, all
rights, claims and actions of NFC against the Dealer which originated the
Receivable or which sold the Financed Vehicles(s) which gave rise to such
Receivable and any successor Dealer for recourse or reimbursement of any losses,
costs or expenses arising as a result of a default by the Obligor on such
Receivable.
"Default Fee" means with respect to any amount due and payable by
Seller in respect of any Aggregate Unpaids, an amount equal to interest on any
such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Base
Rate.
"Delinquency Percentage" shall mean, with respect to a Settlement Date,
the aggregate Remaining Gross Balances of all outstanding Receivables which are
61 days or more past due as of the related Accounting Date, as determined in
accordance with the Servicer*s normal practices, expressed as a percentage of
the aggregate Remaining Gross Balances of all outstanding Receivables on such
Accounting Date.
"Designated Account" means each of the Collection Account, the Hedge
Account, and the Reserve Account.
"Designated Account Property" shall mean the Designated Accounts, all
amounts, investments, and other property held from time to time in the
Designated Accounts (whether held in the form of deposit accounts, book-entry
securities, instruments, cash, uncertificated securities or otherwise), and all
proceeds of the foregoing.
"Determination Date," with respect to a Settlement Date, shall mean the
day that is three (3) Business Days prior to such Settlement Date.
"Discount Rate" means, the LIBO Rate or the Base Rate, as applicable,
with respect to each Purchaser Interest of the Financial Institutions.
"Eligible Account" shall mean either (i) a segregated trust account
with the trust department of a depository institution organized under the laws
of the United States of America or any State thereof or the District of Columbia
(or any domestic branch of a foreign bank), having a long-term deposit rating of
at least Baa3 by Moody*s, having trust powers and acting as trustee for funds
deposited in such account, or (ii) a segregated deposit account with a
depository institution organized under the laws of the United States of America
or any State thereof (or any domestic branch of a foreign bank) the long-term
deposit obligations of which are rated A3 or higher by Moody*s and the
short-term debt obligations of which are rated "A-1" by S&P and "P-1" by
Moody*s.
"Eligible Investments" shall mean any of the following:
(a) Negotiable instruments or securities represented by instruments in
bearer or registered or in book-entry form which evidence (i) obligations fully
guaranteed by the United States of America; (ii) time deposits in, or bankers
acceptances issued by, any depositary institution or trust company incorporated
under the laws of the United States of America or any state thereof and subject
to supervision and examination by Federal or state banking or depositary
institution authorities; provided, however, that at the time of investment or
contractual commitment to invest therein, the certificates of deposit or
short-term deposits, if any, or long-term unsecured debt obligations (other than
such obligation whose rating is based on collateral or on the credit of a Person
other than such institution or trust company) of such depositary institution or
trust company shall have a credit rating from Moody*s and S&P of at least "P-l"
and "A-1", respectively, in the case of the certificates of deposit or
short-term deposits, or a rating not lower than one of the two highest
investment categories granted by Moody*s and by S&P; (iii) certificates of
deposit having, at the time of investment or contractual commitment to invest
therein, a rating from Moody*s and S&P of at least "P-1" and "A-1",
respectively; or (iv) investments in money market funds rated in the highest
investment category or otherwise approved in writing by the applicable rating
agencies;
(b) Demand deposits in any depositary institution or trust company
referred to in (a)(ii) above;
(c) Commercial paper (having original or remaining maturities of no
more than 30 days) having, at the time of investment or contractual commitment
to invest therein, a credit rating from Moody*s and S&P of at least "P- 1" and
"A-1", respectively;
(d) Eurodollar time deposits having a credit rating from Moody*s and
S&P of at least "P-1" and "A-1", respectively;
(e) Repurchase agreements involving any of the Eligible Investments
described in clauses (a)(i), (a)(iii) and (d) of this definition so long as the
other party to the repurchase agreement has at the time of investment therein, a
rating from Moody*s and S&P of at least "P-1" and "A-1", respectively;
(f) Commercial paper master notes having, at the time of the investment
or contractual commitment to invest therein, a credit rating from Moody*s and
S&P of at least "P-1" and "A-1", respectively; and
(g) Any other investment permitted by each of the Agent and the Rating
Agencies.
"ERISA" means The Employment Retirement Income Security Act of 1974, as
amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility Fee" shall mean, with respect to a Monthly Period, a fee
payable to Agent in the amount specified in the Fee Letter.
"FALCON" has the meaning set forth in the preamble to this Agreement.
"Fee Letter" means that certain letter agreement dated as of the date
hereof among the Seller, the Originator and the Agent, as it may be amended or
modified and in effect from time to time.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Financed Vehicle" means a new or used medium or heavy duty truck, bus
or trailer, together with any accessions thereto which were financed by NFC,
securing an Obligor*s indebtedness under a Receivable. A Receivable may be
secured by one or more Financed Vehicles.
"Financial Asset" has the meaning given such term in Article 8 of the
UCC. As used herein, the Financial Asset "related to" a Security Entitlement is
the Financial Asset in which the entitlement holder (as defined in Article 8 of
the UCC) holding such Security Entitlement has the rights and property interest
specified in Article 8 of the UCC.
"Financial Institutions" has the meaning set forth in the preamble in
this Agreement.
"Full Prepayment" shall mean, with respect to a Settlement Date, that
portion of an Actual Payment (other than the Scheduled Payment), which with
respect to (i) any Receivable, is sufficient to prepay such Receivable in full
(after application of the Scheduled Payment), or (ii) a Receivable secured by
multiple Financed Vehicles, equals the unpaid principal amount of the Receivable
relating to any Financed Vehicle, as determined by the Servicer in accordance
with its customary servicing procedures; provided, however, that any such
prepayment with respect to one or more Financed Vehicles securing the same
Receivable will not result in a write-down or other reduction of the principal
balance of such Receivable in respect of the remaining Financed Vehicles.
"Funding Agreement" means this Agreement and any agreement or
instrument executed by any Funding Source with or for the benefit of a Company.
"Funding Source" means (i) any Financial Institution or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to a Company.
"Guaranties" shall mean, with respect to any Receivable, personal or
commercial guaranties of an Obligor's performance with respect thereto.
"Hedge Account" shall mean the account designated as such, established
and maintained pursuant to Section 1.4 hereof.
"Hedging Letter" means the letter agreement regarding Hedging dated the
date hereof between the Agent and the Seller, as it may be modified or amended
and in effect from time to time.
"Hedge Distributable Amount" has the meaning specified in the Hedging
Letter.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) capitalized lease obligations, (vi) net liabilities under
interest rate swap, exchange or cap agreements, (vii) Contingent Obligations and
(viii) liabilities in respect of unfunded vested benefits under plans covered by
Title IV of ERISA.
"Initial Aggregate Receivables Balance" shall mean the sum of the
Initial Receivable Balances of the Receivables as of the Cutoff Date, which is
$533,279,698.52.
"Initial Gross Receivable Balance" shall mean, with respect to any
Receivable as of the Cutoff Date, the Initial Receivable Balance plus, in the
case of Receivables classified by the Servicer as "finance charge included
contracts," the Finance Charges included in the Scheduled Payments due on or
after the Cutoff Date.
"Initial Receivable Balance" shall mean, with respect to a Receivable,
the aggregate principal amount advanced under such Receivable toward the
purchase price of the Financed Vehicle or Financed Vehicles, including insurance
premiums, service and warranty contracts, federal excise and sales taxes and
other items customarily financed as part of such Receivables and related costs,
less payments received from the Obligor prior to the Cutoff Date with respect to
such Receivable allocable on the basis of the actuarial method to principal.
"Initial Reserve Account Deposit" shall mean, with respect to the date
of this Agreement, $37,329,578.90.
"Insurance Policy" shall mean, with respect to a Receivable, an
insurance policy covering physical damage, credit life, credit disability,
theft, mechanical breakdown or similar event to each Financed Vehicle securing
such Receivable.
"Insurance Proceeds" shall mean, with respect to any Receivable,
proceeds of any Insurance Policy with respect to such Receivable.
"Investment Earnings" means investment earnings on funds deposited in
the Designated Accounts, net of losses and investment expenses, during the
applicable Monthly Period.
"ISC" has the meaning set forth in the preamble to this Agreement.
"LIBO Rate" means the rate per annum equal to the sum of (i) (a) the
applicable British Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two
Business Days prior to the first day of the relevant Tranche Period, and having
a maturity equal to such Tranche Period, provided that, (i) if Reuters Screen
FRBD is not available to the Agent for any reason, the applicable LIBO Rate for
the relevant Tranche Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Tranche Period,
and having a maturity equal to such Tranche Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Agent, the
applicable LIBO Rate for the relevant Tranche Period shall instead be the rate
determined by the Agent to be the rate at which Bank One offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Tranche Period, in the approximate amount to be funded at the LIBO
Rate and having a maturity equal to such Tranche Period, divided by (b) one
minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Agent in
respect of Eurocurrency liabilities, as defined in Regulation D of the Board of
Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Tranche Period plus (ii) .50% per
annum. The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of
1%.
"Lien" shall mean, any security interest, lien, charge, pledge, equity
or encumbrance of any kind other than liens for taxes not yet due and payable,
mechanics' liens, any liens that attach by operation of law, and any liens being
contested by appropriate measures.
"Liquidating Receivable" shall mean a Receivable (i) as to which the
Servicer (a) has reasonably determined, in accordance with its Customary
Servicing Procedures, that eventual payment of amounts owing on such Receivable
is unlikely, or (b) has repossessed the Financed Vehicle or all Financed
Vehicles securing the Receivable or (ii) as to which any related Scheduled
Payment is at least 210 days overdue.
"Liquidation Expenses" shall mean, with respect to a Liquidating
Receivable, an amount not to exceed $750 (or such greater amount as the Servicer
actually incurs in accordance with its Customary Servicing Procedures to
refurbish and dispose of a repossessed Financed Vehicle) as an allowance for
amounts charged to the account of the Obligor, in keeping with the Servicer*s
customary procedures, for repossession, refurbishment and disposition of the
Financed Vehicle including out-of-pocket costs related to the liquidation.
"Liquidation Proceeds" shall mean, with respect to a Liquidating
Receivable, all amounts realized with respect to such Receivables, including
benefits of any lease assignments, Insurance Proceeds, proceeds from any Dealer
Liability, proceeds from any NITC Purchase Obligations and proceeds from any
Guaranties, net of amounts that are required to be refunded to the Obligor on
such Receivable.
"Material Adverse Change" means (i) a material adverse change in (i)
the financial condition or operations of any Seller Party and its Subsidiaries,
(ii) the ability of any Seller Party to perform its obligations under this
Agreement or any other Transaction Document, (iii) any Purchaser's interest in
the Receivables generally or any significant portion of the Receivables, the
Related Security or the Collections, or (iv) the collectibility of the
Receivables generally or of a material portion of the Receivables.
"Monthly Advance" shall mean the amount, as of an Accounting Date,
which the Servicer is required to advance on the respective Receivable pursuant
to Section 8.7 of this Agreement.
"Monthly Period" shall mean, with respect to a Determination Date and a
Settlement Date, the calendar month preceding the month in which such date
occurs.
"Monthly Principal Distributable Amount" shall mean, with respect to
any Settlement Date, the sum of: (i) the principal portion of all Scheduled
Payments due with respect to the related Monthly Period on the Receivables
(other than Liquidating Receivables), (ii) the principal portion of all
Prepayments received during the related Monthly Period (except to the extent
included in (i) above) and (iii) the Receivable Balance of each Receivable that
the Servicer purchased, the Seller repurchased or that became a Liquidating
Receivable during the related Monthly Period (except to the extent included in
(i) or (ii) above).
"Monthly Report" means a report, in substantially the form of Exhibit
VI hereto (appropriately completed), furnished by the Servicer to the Agent
pursuant to Section 2.5.
"Moody's" means Moody's Investors Service, Inc., or its successor.
"NFC Change of Control" means any circumstance under which, NFC (or, if
NFC has engaged in a transaction described in Section 8.16, the successor
entity) no longer is a direct or indirect Subsidiary of NIC.
"NFRRC Change of Control" means any circumstance under which NFRRC no
longer is a direct or indirect Subsidiary of NIC.
"NIC" means Navistar International Corporation, a Delaware corporation.
"NIC Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act), other than employee or retiree benefit
plans or trusts sponsored or established by NIC or NITC, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of NIC representing 35% or more of the combined
voting power of NIC's then outstanding voting stock; (ii) the following
individuals cease for any reason to constitute more than two-thirds of the
number of directors then serving on the board of directors (the "Board of
Directors"): individuals who, on the date hereof, constitute the Board of
Directors of NIC and any new director (other than a director whose initial
assumption of the office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of NIC) whose appointment or election by the Board of
Directors or nomination for election by NIC's stockholders was approved (A) by
the vote of at least a majority of the directors then still in office or whose
appointment, election or nomination was previously so approved or recommended or
(B) with respect to directors whose appointment of election to the Board of
Directors was made by the holders of NIC's nonconvertible junior preference
stock, series B, by the holders of such preference stock; (iii) the shareholders
of NIC shall approve any Plan of Liquidation; (iv) NIC consolidates with or
merges with or into another Person, other than a merger or consolidation of NIC
in which the holders of the common stock of NIC outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority of
the common stock of the surviving corporation immediately after such
consolidation or merger; (v) NIC or any subsidiary of NIC, directly or
indirectly, sells, assigns, conveys, transfers, leases or otherwise disposes of,
in one transaction or a series of related transactions, all or substantially all
of the property or assets of NIC and the subsidiaries of NIC (determined on a
consolidated basis) to any Person (other than to a Permitted Joint Venture
entered into in full compliance with all transaction documents supporting NIC's
issuance of public debt); provided that neither (x) the merger of a subsidiary
of NIC into NIC or into any other subsidiary of NIC nor (y) a series of
transactions involving the sale of receivables or interests therein in the
ordinary course of business by a NIC subsidiary in connection with an asset
securitization transaction, shall be deemed to be a NIC Change of Control.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more subsidiaries of
NIC, the capital stock of which constitutes all or substantially all of the
properties and assets of NIC, shall be deemed to be the transfer of all or
substantially all of the properties and assets of NIC.
"NITC" shall mean Navistar International Transportation Corp., a
Delaware corporation, and its successors and assigns.
"NITC Purchase Obligations" shall mean certain obligations of NITC,
subject to limitations, to purchase Financed Vehicles securing Liquidating
Receivables pursuant to Article VI, "NFC/NITC Retail Repossession Purchase and
Remarketing Agreement" and other provisions of the Master Intercompany Agreement
by and between NFC and NITC dated as of April 26, 1993, as such Master
Intercompany Agreement may be amended, supplemented, restated or otherwise
modified.
"Non-Defaulting Financial Institution" has the meaning set forth in
Section 13.5.
"Non-Renewing Financial Institutions" has the meaning set forth in
Section 13.6(a).
"Obligations" means (i) the Facility Fee, (ii) all Allocated CP Costs,
(iii) all amounts payable as Yield, (iv) all amounts payable pursuant to Article
X, if any, (v) the Total Servicing Fee, (vi) all Broken Funding Costs, (vii) all
Default Fees, (viii) all Warranty Payments, and (ix) all Optional Purchase
Proceeds. Unless otherwise specified herein, all Obligations which arise during
a Monthly Period and of which the Servicer has been notified on or before the
tenth day of the month following the end of such Monthly Period shall be payable
on the Settlement Date related to such Monthly Period out of (and to the extent
of) funds available for such purpose as specified in Section 2.1(c).
"Obligor" means, with respect to any Receivable, the purchaser or any
co-purchaser of the related Financed Vehicle or Financed Vehicles or any other
Person, other than the maker of any Guaranty, who owes payments under a
Receivable.
"Optional Purchase Proceeds" has the meaning it is given in Section
2.4.
"Originator" means NFC, in its capacity as Seller under the Sale
Agreement.
"Outstanding Monthly Advances" shall mean, of an Accounting Date with
respect to a Receivable, the sum of all Monthly Advances made as or of the
Accounting Date minus all payments or collections as of or prior to such
Accounting Date which are specified in Section 8.7 of this Agreement as reducing
Outstanding Monthly Advances with respect to such Receivable.
"Overdue Payment" shall mean, with respect to a Settlement Date and to
a Receivable, all payments received during the related Monthly Period in excess
of any Supplemental Servicing Fees, to the extent of the Outstanding Monthly
Advances relating to such Receivable.
"Partial Prepayment" shall mean, with respect to a Settlement Date and
to any Receivable, the portion of an Actual Payment in excess of the Scheduled
Payment which equals one or more future Scheduled Payments but does not
constitute a Full Prepayment and results in a Rebate in accordance with the
Servicer*s Customary Servicing Procedures.
"Participant" has the meaning set forth in Section 12.2.
"Permitted Joint Venture" means any Person which is, directly or
indirectly, through its subsidiaries or otherwise, engaged principally in any
business in which NIC is engaged, or a reasonably related business, and the
capital stock of which is owned by NIC and one or more Persons other than NIC or
any affiliate of NIC.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referenced Person
and (ii) the distribution of all or substantially all of the proceeds of such
sale, lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referenced Person to holders of capital stock of the
referenced Person.
"Pooled Commercial Paper" means Commercial Paper notes of a Company
subject to any particular pooling arrangement by such Company, but excluding
Commercial Paper issued by such Company for a tenor and in an amount
specifically requested by any Person in connection with any agreement effected
by such Company.
"Potential Servicer Default" means an event which with the passage of
time or the giving of notice, or both, would constitute a Servicer Default.
"Prepayment" shall mean, with respect to a Settlement Date and to a
Receivable, the portion of an Actual Payment in excess of the Scheduled Payment.
"Prepayment Surplus" shall mean, with respect to any Settlement Date on
which a Prepayment is to be applied with respect to a Receivable, that portion
of such Prepayment, net of any Rebate to the Obligor of the portion of the
Scheduled Payments attributable to unearned Finance Charges, which is not
allocable to principal in accordance with the actuarial method.
"Principal Carryover Distributable Amount" shall mean, with respect to
any Settlement Date, the excess of the Principal Distributable Amount with
respect to the immediately preceding Settlement Date over the amount that was
actually paid to the Agent to reduce the Capital on such immediately preceding
Settlement Date.
"Principal Distributable Amount" shall mean, with respect to any
Settlement Date, the sum of the Monthly Principal Distributable Amount and the
Principal Carryover Distributable Amount with respect to such Settlement Date,
not to exceed the Aggregate Capital outstanding as of that Settlement Date.
"Pro Rata Share" means, for each Financial Institution, a percentage
equal to (i) the Commitment of such Financial Institution, divided by (ii) the
aggregate amount of all Commitments of all Financial Institutions hereunder,
adjusted as necessary to give effect to the application of the terms of Sections
13.5 or 13.6.
"Purchase Price" means the amount of consideration paid for each
Purchaser Interest hereunder.
"Purchaser" means FALCON, ISC or a Financial Institution, as
applicable.
"Purchaser Interest" means, at any time, an undivided percentage
ownership interest (computed as set forth below) associated with a designated
amount of Capital, selected pursuant to the terms and conditions hereof in (i)
each and every Receivable identified on the Schedule of Receivables, (ii) all
Related Security with respect to each such Receivable, and (iii) all Collections
with respect to, and other proceeds of, each such Receivable. Each such
undivided percentage interest shall equal:
C
-----------
ARB
where:
C = the Capital of such Purchaser Interest.
ARB = the Aggregate Receivables Balance.
Such undivided percentage ownership interest shall be initially computed on its
date of purchase. Thereafter, each Purchaser Interest shall be automatically
recomputed (or deemed to be recomputed) on each date.)
"Purchasing Financial Institution" has the meaning set forth in Section
12.1(b).
"Rebate" shall mean, with respect to a given date and to a Receivable,
the rebate under such Receivable that is or would be payable to the Obligor for
unearned Finance Charges or any other charges that are or would be subject to a
rebate to the Obligor upon the payment of a Partial Prepayment or a Full
Prepayment.
"Rating Agency" shall mean S&P, Moody's and any other rating agency
rating the Commercial Paper at the request of the Seller.
"Receivable" shall mean the indebtedness and other obligations owed
under one of the retail loans evidenced by a note or any other documentation and
secured by one or more new or used medium or heavy duty trucks, buses or
trailers, which loan is identified on the Schedule of Receivables, whether
constituting an account, chattel paper, instrument or general intangible, and
includes, without limitation, the obligation to pay any Finance Charges with
respect thereto.
"Receivable Balance" shall mean, with respect to any Receivable, as of
an Accounting Date, the Initial Receivable Balance thereof minus the sum of the
following amounts, in each case computed in accordance with the actuarial
method: (i) that portion of all Scheduled Payments allocated to principal due on
or after the Cutoff Date and on or prior to the Accounting Date, (ii) that
portion of all Warranty Payments or Administrative Purchase Payments allocated
to principal, (iii) that portion of all Prepayments allocated to principal, and
(iv) that portion of the following received and allocated to principal by the
Servicer: benefits of any lease assignments, proceeds from any Insurance
Policies, Liquidation Proceeds, proceeds from any Dealer Liability, and proceeds
from any NITC Purchase Obligations and proceeds from Guaranties.
"Receivable File" shall mean the following documents pertaining to a
particular Receivable:
(a) the fully executed original of the retail note for each
Receivable;
(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully executed by
each such Obligor on NFC's customary form, or on a form approved by NFC, for
such application;
(d) where permitted by law, the original certificate of title (when
received) and otherwise such documents, if any, that NFC keeps on file in
accordance with its Customary Servicing Procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of NFC as first
lienholder or secured party; and
(e) any and all other documents that NFC keeps on file in accordance
with its Customary Servicing Procedures relating to the individual Receivable,
Obligor or Financed Vehicle.
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Reduction Percentage" means, for any Purchaser Interest acquired by
the Financial Institutions from a Company for less than the Capital of such
Purchaser Interest, a percentage equal to a fraction the numerator of which is
the Company Transfer Price Reduction for such Purchaser Interest and the
denominator of which is the Capital of such Purchaser Interest.
"Reference Bank" means Bank One or such other bank as the Agent shall
designate with the consent of Seller.
"Regulatory Change" has the meaning set forth in Section 10.2(a).
"Related Security" shall mean, with respect to the Receivables:
(a) the security interests in the Financed Vehicles granted by Obligors
under the terms of the Receivables and, to the extent permitted by law, any
accessions thereto that are financed by NFC;
(b) all other security interests or liens and property, if any,
purporting to secure payment of such Receivable, whether pursuant to a Contract
related to such Receivable or otherwise, together with all financing statements
and security agreements describing any collateral securing such Receivable;
(c) the benefits of any lease assignments with respect to the related
Financed Vehicles;
(d) any proceeds from any Insurance Policies with respect to the
Receivables;
(e) any proceeds from Dealer Liability with respect to the Receivables,
proceeds from any NITC Purchase Obligations with respect to the Receivables
(subject to the limitations set forth in Section 1.2(d)) and proceeds from any
guaranties of Receivables;
(f) all of the Seller's right, title and interest in, to and under the
Sale Agreement, the Assignment of the Designated Receivables and the Related
Security (as defined in the Sale Agreement) with respect to the Receivables and
the Custodian Agreement, including the right of the Seller to cause NFC to
perform its obligations thereunder (including the obligation to repurchase
Receivables under certain circumstances);
(g) all guaranties, letters of credit and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the Contract related to such
Receivable or otherwise (other than the NITC Purchase Obligations);
(h) all Records and Receivables Files relating to such Receivables;
(i) all of the Seller's right, title and interest in the Designated
Accounts and the monies therein; and
(j) all proceeds of any of the foregoing.
"Remaining Gross Balance" shall mean, with respect to any Receivable
(other than a Liquidating Receivable) and as of an Accounting Date, the Initial
Gross Receivable Balance thereof minus the sum of (i) the portion of all Actual
Payments with respect to such Receivable, (ii) any Warranty Payment or
Administrative Purchase Payment with respect to any such Receivable, (iii) any
Prepayments applied to reduce the Initial Gross Receivable Balance of any such
Receivable and (iv) proceeds from any Insurance Policies with respect to such
Receivable, plus for any Receivable not classified by the Servicer as a "finance
charge - included contract," the portion of the payments specified in the
preceding clauses (i), (ii), (iii) or (iv) above allocable in accordance with
the actuarial method to Finance Charges; provided, however, that the Remaining
Gross Balance of any Receivable that has been designated a Liquidating
Receivable during the related Monthly Period shall equal zero.
"Replacement Servicing Fees" has the meaning specified in Section 8.15.
"Required Financial Institutions" means, at any time, (i) the Financial
Institutions with Commitments in excess of 66-2/3% of the Purchase Limit and
(ii) the Agent.
"Reserve Account" shall mean the account designated as such,
established and maintained pursuant to Section 1.4 hereof.
"S&P" shall mean Standard & Poor*s Ratings Services, a division of The
McGraw-Hill Companies, together with its successors.
"Sale Agreement" means that certain Receivables Sale Agreement, dated
as of November 10, 1999, between Originator and Seller, as the same may be
amended, restated or otherwise modified from time to time.
"Scheduled Payment" shall mean a payment which (i) is in the amount
required under the terms of a Receivable in effect as of the Cutoff Date,
except, in the case of any Receivable secured by more than one Financed Vehicle,
for any changes in the terms of such Receivable resulting from a Full Prepayment
with respect to any Financed Vehicle related thereto, (ii) is payable by the
Obligor and (iii) includes Finance Charges equivalent to the Annual Percentage
Rate. When "Scheduled Payment" is used with reference to a Settlement Date, it
means the payment which is due in the related Monthly Period; provided, that in
the case of the first Settlement Date, the Scheduled Payment shall include all
such payments due from the Obligor on or after the Cutoff Date through the end
of the Monthly Period related to the first Settlement Date.
"Schedule of Receivables" shall mean the schedule of Receivables
annexed to this Agreement as Schedule C.
"Securities and Exchange Commission" shall mean the U.S. administrative
agency charged with principal responsibility for the enforcement and
administration of the federal securities laws.
"Securities Intermediary" has the meaning given such term in Section
2.7 of this Agreement.
"Security Entitlement" has the meaning given such term in Section
8-102(a)(17) of the Illinois UCC.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Parties" has the meaning set forth in the preamble to this
Agreement.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect
Receivables.
"Servicer Default" shall mean the occurrence of any event described in
Section 9.1 of this Agreement.
"Settlement Date" means (A) the 18th day of each month (or, if such day
is not a Business Day, then the next Business Day), and (B) the last day of the
relevant Tranche Period in respect of each Purchaser Interest of the Financial
Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest of
the Companies, the immediately preceding Accrual Period, and (B) in respect of
each Purchaser Interest of the Financial Institutions, the entire Tranche Period
of such Purchaser Interest.
"Specified Hedge Account Balance" has the meaning set forth in the
Hedging Letter.
"Specified Reserve Account Balance" shall mean, with respect to any
Settlement Date, the lesser of (i) the Aggregate Unpaids as of such Settlement
Date, and (ii) the greater of:
(a) 7.0% of the Aggregate Receivables Balance as of the close of
business on the last day of the related Monthly Period, provided that if on any
Settlement Date (i) the product (expressed as a percentage) of (A) twelve and
(B) a fraction, the numerator of which is equal to the sum of the Aggregate
Losses plus Liquidation Proceeds for each of the Monthly Periods which are the
fifth, fourth and third Monthly Periods preceding the Monthly Period in which
such Settlement Date occurs, minus the sum of the Liquidation Proceeds for the
Monthly Periods which are the first, second and third Monthly Periods preceding
the Monthly Period in which such Settlement Date occurs, and the denominator of
which is the sum of the Remaining Gross Balances of all outstanding Receivables
as of the last day of each of the sixth, fifth and fourth Monthly Periods
preceding the Monthly Period in which such Settlement Date occurs, exceeds 1.5%
or (ii) the average of the Delinquency Percentages for the preceding three
months exceeds 2.0%, then the percentage of the Aggregate Receivables Balance
referred to this clause (a), shall be equal to 11.0%; and
<PAGE>
(b) 2.25% of the Initial Aggregate Receivables Balance.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture, limited liability company or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of Seller.
"Supplemental Servicing Fee" shall mean all late fees, prepayment
charges and other administrative fees and expenses or similar charges allowed by
applicable law with respect to the Receivables, collected (from whatever source)
on the Receivables during the applicable Monthly Period.
"Terminating Financial Institution" has the meaning set forth in
Section 13.6(a).
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"Total Available Amount" shall mean, with respect to a Settlement Date,
the sum of the Available Amount and the amount transferred to the Collection
Account from the Reserve Account pursuant to Section 2.1(b)(ii).
"Total Servicing Fee" shall mean the sum of the Basic Servicing Fee and
any unpaid Basic Servicing Fees from all prior Settlement Dates.
"Tranche" shall mean a portion of the Capital allocated to a Tranche
Period pursuant to Section 4.3.
"Tranche Period" means, with respect to any Purchaser Interest held by
a Financial Institution:
(a) if Yield for such Purchaser Interest is calculated on the basis of
the LIBO Rate, a period of one, two, three or six months, or such other period
as may be mutually agreeable to the Agent and Seller, commencing on a Business
Day selected by Seller or the Agent pursuant to this Agreement. Such Tranche
Period shall end on the day in the applicable succeeding calendar month which
corresponds numerically to the beginning day of such Tranche Period, provided,
however, that if there is no such numerically corresponding day in such
succeeding month, such Tranche Period shall end on the last Business Day of such
succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of
the Base Rate, a period commencing on a Business Day selected by Seller and
agreed to by the Agent, provided no such period shall exceed one month.
If any Tranche Period would end on a day which is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, provided, however,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day.
"Transaction Documents" means, collectively, this Agreement, the Sale
Agreement, the assignment to be delivered to NFRRC by NFC thereunder, the
Custodian Agreement, the Fee Letter, the Hedging Letter, the Bill of Sale and
Assignment dated as of November 12, 1999 (the "TRIP Assignment") executed by
Truck Retail Instalment Paper Corp., a Delaware corporation ("TRIP"), in favor
of NFC, pursuant to which TRIP assigns certain Receivables secured by one or
more Financed Vehicles, and the related rights and obligations and all other
instruments, documents and agreements executed and delivered in connection
herewith.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the specified jurisdiction.
"Uncertificated Security" shall mean, as of any date, has the meaning
given to such term under the applicable UCC as in effect on such date.
"Unconditional Liquidity Provider" means a Financial Institution that
is identified by the Agent or by Bank One as an entity which will not under any
circumstance receive any Company Transfer Price Reduction hereunder.
"Warranty Payment" shall mean, with respect to a Settlement Date and to
a Warranty Receivable repurchased as of the related Accounting Date, the sum of
(i) the sum of all remaining Scheduled Payments on such Warranty Receivable due
after the Accounting Date, (ii) all past due Scheduled Payments with respect to
which a Monthly Advance has not been made, (iii) any reimbursement made pursuant
to the last sentence of Section 8.7 of this Agreement with respect to such
Warranty Receivable, and (iv) all Outstanding Monthly Advances made on such
Warranty Receivable, minus (x) the rebate, calculated in accordance with the
actuarial method, that would be payable to the Obligor on such Warranty
Receivable were the Obligor to prepay such Receivable in full on such day and
(y) any Liquidation Proceeds (to the extent applied to reduce the Receivable
Balance of such Warranty Receivable) previously received by the Purchasers with
respect to such Warranty Receivable.
"Warranty Purchaser" shall mean either (i) the Seller pursuant to
Section 7.1(i) of this Agreement or (ii) NFC pursuant to Section 5.04 of the
Sale Agreement.
"Warranty Receivable" shall mean a Receivable which the Warranty
Purchaser has become obligated to repurchase pursuant to Section 7.1(i) of this
Agreement or Section 5.04 of the Sale Agreement.
"Year 2000 Plan" means a plan to prevent the Year 2000 Problem from
having an adverse effect upon the business, financial condition, operations,
property or prospects of a Person.
"Year 2000 Problem" means, with respect to any Person, the risk that
computer applications directly used by that Person cannot or will not: (a)
handle date information involving any and all dates before, during and/or after
January 1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (b) operate accurately without interruption on
and in respect of any and all dates before, during and/or after January 1, 2000;
and (c) store and provide date input information without creating any ambiguity
as to the century.
"Yield" means for each respective Tranche Period relating to Purchaser
Interests of the Financial Institutions, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital
of such Purchaser Interest for each day elapsed during such Tranche Period,
annualized on a 360 day basis; provided, however, that computations of interest
at the Base Rate shall be made on the basis of a year of 365 days or 366 days,
as applicable, for the actual number of days elapsed.
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of Illinois, and not specifically defined
herein, are used herein as defined in such Article 9.
<PAGE>
EXHIBIT II
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
Navistar Financial Corporation
Place of Business: 2850 West Golf Road
Rolling Meadows, IL 60008
Location of Records: Same
F.E.I.N.: 36-2472404
Navistar Financial Retail Receivables Corporation
Place of Business: 2850 West Golf Road
Rolling Meadows, IL 60008
Location of Records: Same
F.E.I.N.: 51-0337491
<PAGE>
EXHIBIT III
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is entered into as of the ___ day of
____________, ____, by and between _____________________ ("Seller") and
__________________ ("Purchaser").
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered
in accordance with Section 12.1(b) of that certain Receivables Purchase
Agreement dated as of __________, ____ by and among Navistar Financial Retail
Receivables Corporation, a Delaware corporation ("Seller"), Navistar Financial
Corporation, a Delaware corporation ("NFC" or "Servicer"), as initial Servicer
(the Servicer together with the Seller, the "Seller Parties" and each a "Seller
Party"), the funding entities listed on Schedule A to this Agreement (together
with their respective successors and assigns hereunder, the "Financial
Institutions"), International Securitization Corporation ("ISC"), Falcon Asset
Securitization Corporation ("FALCON"), (ISC and FALCON each singly, the
"Company" and collectively, the "Companies") and 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 the
Financial Institutions party thereto (as amended, modified or restated from time
to time, the "Purchase Agreement"). Capitalized terms used and not otherwise
defined herein are used with the meanings set forth or incorporated by reference
in the Purchase Agreement.
B. The Seller is a Financial Institution party to the Purchase
Agreement, and the Purchaser wishes to become a Financial Institution
thereunder; and
C. The Seller is selling and assigning to the Purchaser an
undivided ____________% (the "Transferred Percentage") interest in all of
Seller's rights and obligations under the Purchase Agreement and the Transaction
Documents, including, without limitation, the Seller's Commitment and (if
applicable) the Capital of the Seller's Purchaser Interests as set forth herein;
The parties hereto hereby agree as follows:
1. This sale, transfer and assignment effected by this
Assignment Agreement shall become effective (the "Effective Date") two (2)
Business Days (or such other date selected by the Agent in its sole discretion)
following the date on which a notice substantially in the form of Schedule II to
this Assignment Agreement ("Effective Notice") is delivered by the Agent to a
Company, the Seller and the Purchaser. From and after the Effective Date, the
Purchaser shall be a Financial Institution party to the Purchase Agreement for
all purposes thereof as if the Purchaser were an original party thereto and the
Purchaser agrees to be bound by all of the terms and provisions contained
therein.
2. If the Seller has no outstanding Capital under the Purchase
Agreement, on the Effective Date, Seller shall be deemed to have hereby
transferred and assigned to the Purchaser, without recourse, representation or
warranty (except as provided in paragraph 6 below), and the Purchaser shall be
deemed to have hereby irrevocably taken, received and assumed from the Seller,
the Transferred Percentage of the Seller's Commitment and all rights and
obligations associated therewith under the terms of the Purchase Agreement,
including, without limitation, the Transferred Percentage of the Seller's future
funding obligations under Section 4.1 of the Purchase Agreement.
3. If the Seller has any outstanding Capital under the
Purchase Agreement, at or before 12:00 noon, local time of the Seller, on the
Effective Date the Purchaser shall pay to the Seller, in immediately available
funds, an amount equal to the sum of (i) the Transferred Percentage of the
outstanding Capital of the Seller's Purchaser Interests (such amount, being
hereinafter referred to as the "Purchaser's Capital"); (ii) all accrued but
unpaid (whether or not then due) Yield attributable to the Purchaser's Capital;
and (iii) accruing but unpaid fees and other costs and expenses payable in
respect of the Purchaser's Capital for the period commencing upon each date such
unpaid amounts commence accruing, to and including the Effective Date (the
"Purchaser's Acquisition Cost");
whereupon, the Seller shall be deemed to have sold, transferred and assigned to
the Purchaser, without recourse, representation or warranty (except as provided
in paragraph 6 below), and the Purchaser shall be deemed to have hereby
irrevocably taken, received and assumed from the Seller, the Transferred
Percentage of the Seller's Commitment and the Capital of the Seller's Purchaser
Interests (if applicable) and all related rights and obligations under the
Purchase Agreement and the Transaction Documents, including, without limitation,
the Transferred Percentage of the Seller's future funding obligations under
Section 4.1 of the Purchase Agreement.
4. Concurrently with the execution and delivery hereof, the
Seller will provide to the Purchaser copies of all documents requested by the
Purchaser which were delivered to such Seller pursuant to the Purchase
Agreement.
5. Each of the parties to this Assignment Agreement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Assignment Agreement.
6. By executing and delivering this Assignment Agreement, the
Seller and the Purchaser confirm to and agree with each other, the Agent and the
Financial Institutions as follows: (a) other than the representation and
warranty that it has not created any Adverse Claim upon any interest being
transferred hereunder, the Seller makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made by any other Person in or in connection with the Purchase
Agreement or the Transaction Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Purchaser, the Purchase
Agreement or any other instrument or document furnished pursuant thereto or the
perfection, priority, condition, value or sufficiency of any collateral; (b) the
Seller makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Seller, any Obligor, any Seller
Affiliate or the performance or observance by the Seller, any Obligor, any
Seller Affiliate of any of their respective obligations under the Transaction
Documents or any other instrument or document furnished pursuant thereto or in
connection therewith; (c) the Purchaser confirms that it has received a copy of
the Transaction Documents, together with such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement; (d) the Purchaser will, independently and
without reliance upon the Agent, a Company, the Seller or any other Financial
Institution or Purchaser and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Purchase Agreement and the Transaction
Documents; (e) the Purchaser appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Transaction
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (f) the Purchaser appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Transaction Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
and (g) the Purchaser agrees that it will perform in accordance with their terms
all of the obligations which, by the terms of the Purchase Agreement and the
Transaction Documents, are required to be performed by it as a Financial
Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees
with the Agent that it is aware of and will comply with the provisions of the
Purchase Agreement, including, without limitation, Sections 4.1, 13.1 and 14.6
thereof.
8. Schedule I hereto sets forth the revised Commitment of the
Seller and the Commitment of the Purchaser, as well as administrative
information with respect to the Purchaser.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. The Purchaser hereby covenants and agrees that, prior to
the date which is one year and one day after the payment in full of all senior
indebtedness for borrowed money of a Company, it will not institute against, or
join any other Person in instituting against, a Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective duly authorized officers
of the date hereof.
[SELLER]
By:
Title:
[Purchaser]
By:
Title:
<PAGE>
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: _______________, ____
Transferred Percentage: ________%
A-1 A-2 B-1 B-2
Outstanding
Commitment Commitment Capital Ratable
Seller [existing] [revised] (if any) Share
A-1 B-1 B-2
Outstanding
Commitment Capital Ratable
Purchaser [initial] (if any) Share
Address for Notices
Attention:
Phone:
Fax:
<PAGE>
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO: ________________________, Seller
TO: ________________________, Purchaser
The undersigned, as Agent under the Purchase Agreement dated
as of ______, ____ by and among Navistar Financial Retail Receivables
Corporation, a Delaware corporation ("Seller"), Navistar Financial Corporation,
a Delaware corporation ("NFC" or "Servicer"), as initial Servicer (the Servicer
together with the Seller, the "Seller Parties" and each a "Seller Party"), the
funding entities listed on Schedule A to this Agreement (together with their
respective successors and assigns hereunder, the "Financial Institutions"),
International Securitization Corporation ("ISC"), Falcon Asset Securitization
Corporation ("FALCON") (ISC and FALCON each singly, the "Company" and
collectively, the "Companies"), and 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 the Financial Institutions
party thereto, hereby acknowledges receipt of executed counterparts of a
completed Assignment Agreement dated as of ____________, ____ between Navistar
Financial Retail Receivables Corporation, a Delaware corporation, as Seller, and
Bank One, NA (Main Office Chicago) as agent for the Purchasers. Terms defined in
such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised
that the Effective Date will be
- --------------, ----.
2. The Companies hereby consent to the Assignment Agreement
as required by Section 12.1(b) of the Purchase Agreement.
<PAGE>
[3. Pursuant to such Assignment Agreement, the Purchaser is
required to pay $____________ to the Seller at or before 12:00 noon (local time
of the Seller) on the Effective Date in immediately available funds.]
Very truly yours,
BANK ONE, NA (MAIN OFFICE CHICAGO)
individually and as Agent
By:
Title:
INTERNATIONAL SECURITIZATION CORPORATION
By:
Authorized Signatory
FALCON ASSET SECURITIZATION
CORPORATION
By:
Authorized Signatory
<PAGE>
EXHIBIT IV
FORM OF CONTRACT(S)
<PAGE>
EXHIBIT V
FORM OF MONTHLY REPORT
<PAGE>
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
- ---------------------------------------------- ------------------------------
Financial Institution Commitment
- ---------------------------------------------- ------------------------------
Bank One, NA (Main Office Chicago) $533,279,698.52
- ---------------------------------------------- ------------------------------
<PAGE>
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
1. Copy of the Resolutions of the Board of Directors of each Seller Party
certified by its Secretary authorizing such Seller Party's execution,
delivery and performance of this Agreement and the other documents to
be delivered by it hereunder.
2. Articles or Certificate of Incorporation of each Seller Party certified
by the Secretary of State of its jurisdiction of incorporation on or
within thirty (30) days prior to the initial Purchase.
3. Good Standing Certificate for each Seller Party issued by the
Secretaries of State of Delaware and Illinois.
4. A certificate of the Secretary of each Seller Party certifying (i) the
names and signatures of the officers authorized on its behalf to
execute this Agreement and any other documents to be delivered by it
thereunder and (ii) a copy of such Seller Party's By-Laws.
5. Time stamped receipt copies of proper financing statements, duly filed
under the UCC on or before the date of such initial Purchase in all
jurisdictions as may be necessary or, in the opinion of the Agent,
desirable, under the UCC of all appropriate jurisdictions or any
comparable law in order to perfect the ownership interests contemplated
by this Agreement.
6. Time stamped receipt copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of
any Person in the Receivables, Contracts or Related Security previously
granted by Seller.
7. A favorable opinion of legal counsel for the Seller Parties reasonably
acceptable to the Agent which addresses the following matters and such
other matters as the Agent may reasonably request:
- Each Seller Party is a corporation duly incorporated,
validly existing, and in good standing under the laws
of its state of incorporation.
- Each Seller Party has all requisite authority to
conduct its business in each jurisdiction where
failure to be so qualified would have a Material
Adverse Change on such Seller Party's business.
- The execution and delivery by each Seller Party of
this Agreement and each other Transaction Document to
which it is a party and its performance of its
obligations thereunder have been duly authorized by
all necessary corporate action and proceedings on the
part of such Seller Party and will not:
(a) require any action by or in respect of, or
filing with, any governmental body, agency
or official (other than the filing of UCC
financing statements);
(b) contravene, or constitute a default under,
any provision of applicable law or
regulation or of its Articles of
Incorporation or Bylaws or of any agreement,
judgment, injunction, order, decree or other
instrument binding upon such Seller Party;
or
(c) result in the creation or imposition of any
Adverse Claim on assets of such Seller Party
or any of its Subsidiaries (except as
contemplated by this Agreement).
- This Agreement and each other Transaction Document to
which such Seller Party is a Party has been duly
executed and delivered by such Seller Party and
constitutes the legal, valid, and binding obligation
of such Seller Party, enforceable in accordance with
its terms, except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors'
rights generally and subject also to the availability
of equitable remedies if equitable remedies are
sought.
- Seller has a valid and unencumbered ownership
interest in each Receivable in existence as of the
date of the Agreement and, if a Purchase is made as
of such date, the Agent for the benefit of the
Purchasers shall acquire a first perfected ownership
interest in each Receivable, the related Collections
and the Related Security.
- To the best of the opinion giver's knowledge, there
is no action, suit or other proceeding against any
Seller Party or any Affiliate of any Seller Party,
which would materially adversely affect the business
or financial condition of such Seller Party and its
Affiliates taken as a whole or which would materially
adversely affect the ability of Seller to perform its
obligations under this Agreement.
8. If requested by a Company or the Agent, a favorable opinion of legal
counsel for each Financial Institution, reasonably acceptable to the
Agent which addresses the following matters:
- This Agreement has been duly authorized by all
necessary corporate action of the Financial
Institution.
- This Agreement has been duly executed and delivered
by the Financial Institution and, assuming due
authorization, execution and delivery by each of the
other parties thereto, constitutes a legal, valid and
binding obligation of the Financial Institution,
enforceable against the Financial Institution in
accordance with its terms.
10. For each Purchaser that is not incorporated under the laws of the
United States of America, or a state thereof, two duly completed copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI
certifying in either case that such Purchaser is entitled to receive
payments under the Agreement without deduction or withholding of any
United States federal income taxes.
11. An executed copy of the Receivables Sale Agreement, together with
copies of each of the documents delivered pursuant to Section 3.1
thereof.
12. True sale and non-consolidation opinions.
13. Compliance certificate.
<PAGE>
SCHEDULE C
SCHEDULE OF RECEIVABLES
<PAGE>
RECEIVABLES SALE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 12, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES 2
SECTION 2.01. Purchase and Sale of Receivables 2
SECTION 2.02. Purchase Price 3
SECTION 2.03. The Closing 3
SECTION 2.04. Payments and Default Fee 3
SECTION 2.05. Transfer of Records 3
SECTION 2.06. Intended Characterization 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES 4
SECTION 3.01. Representations and Warranties as
to Receivables 4
SECTION 3.02. Additional Representations and
Warranties of NFC 9
SECTION 3.03. Representations and Warranties of NFRRC 11
ARTICLE IV
CONDITIONS 13
SECTION 4.01. Conditions to Obligation of NFRRC 13
SECTION 4.02. Conditions To Obligation of NFC 14
ARTICLE V
ADDITIONAL AGREEMENTS 14
SECTION 5.01. Conflicts With Further Transfer
and Servicing Agreements 14
SECTION 5.02. Protection of Title 14
SECTION 5.03. Other Liens or Interests 15
SECTION 5.04. Repurchase Events 15
SECTION 5.05. Indemnification 15
SECTION 5.06. Further Assignments 15
SECTION 5.07. Pre-Closing Collections 16
SECTION 5.08. Limitation on Transfer of NITC
Purchase Obligations 16
SECTION 5.09. Compliance with Laws and Preservation of
Corporate Existence 16
SECTION 5.10. Keeping and Marking of Records and Books 16
SECTION 5.11. Purchasers' Reliance 16
SECTION 5.12. Sale Treatment 16
ARTICLE VI
INDEMNIFICATION 17
SECTION 6.01. Indemnities by the Originator 17
ARTICLE VII
MISCELLANEOUS PROVISIONS 19
SECTION 7.01. Amendment 19
SECTION 7.02. Survival 19
SECTION 7.03. Notices 19
SECTION 7.04. Governing Law 19
SECTION 7.05. Waivers 19
SECTION 7.06. Costs and Expenses 20
SECTION 7.07. Confidential Information 20
SECTION 7.08. Headings 20
SECTION 7.09. Counterparts 20
SECTION 7.10. Severability of Provisions 20
SECTION 7.11. Further Assurances 20
SECTION 7.12. No Other Third-Party Beneficiaries 20
SECTION 7.13. Merger and Integration 20
SECTION 7.14. Protection of Interests 21
SECTION 7.15. Bankruptcy Petition 21
SECTION 7.16. Limitation of Liability 21
SECTION 7.17. Assignments 21
SECTION 7.18. Consent to Jurisdiction 22
SECTION 7.19. Waiver of Jury Trial 22
<PAGE>
EXHIBITS
Exhibit A - Form of Assignment
Exhibit B - Forms of Contracts
<PAGE>
24
RECEIVABLES SALE AGREEMENT, dated as of November 12, 1999, between
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION, a Delaware corporation
("NFRRC"), and NAVISTAR FINANCIAL CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase a portfolio of commercial retail
loans evidenced by notes secured by new and used medium and heavy duty trucks,
buses and trailers (collectively, the "Retail Notes"), together with related
rights owned by NFC;
WHEREAS, NFC is willing to sell such Retail Notes and related rights to
NFRRC;
WHEREAS, NFRRC may wish to sell or otherwise transfer such Retail Notes
and related rights, or interests therein, to a trust, corporation, partnership
or other entity (any such transferee being the "Subsequent Transferee"); and
WHEREAS, the Subsequent Transferee may issue commercial paper,
debentures, notes, participations, certificates of beneficial interest,
partnership interests or other interests or securities (collectively, any such
issued interests or securities being "Securities") to fund its acquisition of
such Retail Notes and related rights.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained, the
parties hereto agree as follows:
1 ARTICLE DEFINITIONS
1.1. SECTION Definitions . Capitalized terms used but not otherwise defined in
this Agreement shall have the respective meanings assigned them in Exhibit I to
the Receivables Purchase Agreement of even date herewith by and among Navistar
Financial Retail Receivables Corporation, as Seller, Navistar Financial
Corporation, as Servicer, and Falcon Asset Securitization Corporation ("Falcon")
and International Securitization Corporation ("ISC"), as Companies, the
Financial Institutions Party hereto, as Investors and Bank One, NA, as Agent and
Securities Intermediary (as it may be amended, supplemented or modified from
time to time, the "Purchase Agreement"). All references herein to "the
Agreement" or "this Agreement" are to this Sale Agreement as it may be amended,
supplemented or modified from time to time, the exhibits hereto and the
capitalized terms used herein which are defined in such Exhibit I, and all
references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of this Agreement unless otherwise specified.
1 ARTICLE PURCHASE AND SALE OF RECEIVABLES
1.1. SECTION Purchase and Sale of Receivables . Subject to the satisfaction of
the conditions specified in Article IV, NFC agrees to sell, transfer, assign and
otherwise convey to NFRRC, without recourse, pursuant to a written assignment
substantially in the form of Exhibit A (an "Assignment"), and NFRRC agrees to
purchase as of the date of this Agreement (the "Closing Date"), all right, title
and interest of NFC in, to and under:
(a) the Retail Notes, secured by one or more Financed Vehicles, that are
identified in a schedule to the Assignment delivered to NFRRC on the Closing
Date (the "Designated Receivables") and all monies paid thereon (including
Liquidation Proceeds) and due thereunder on and after the Cutoff Date
(including, without limitation, all Collections); (b) (c) the security interests
in the Financed Vehicles granted by Obligors pursuant to the Designated
Receivables and, to the extent permitted by law, any accessions thereto which
are financed by NFC; (d) (e) all other security interests or liens and property,
if any, purporting to secure payment of such Receivables, whether pursuant to a
contract related to such Receivables or otherwise, together with all financing
statements and security agreements describing any collateral securing such
Receivables; (f) (g) the benefits of any lease assignments with respect to the
related Financed Vehicles; (h) (i) any proceeds from any Insurance Policies with
respect to the Designated Receivables; (j) (k) any proceeds from Dealer
Liability with respect to the Designated Receivables, proceeds from any NITC
Purchase Obligations with respect to the Designated Receivables (subject to the
limitations set forth in Section 5.08 hereof); and (l) (m) all guaranties,
letters of credit and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or otherwise (other than the
NITC Purchase Obligations); (n) (o) all of NFC's right, title and interest in
the Designated Accounts and the monies therein; and (p) (q) all proceeds of any
of the foregoing (the property described in clauses (b) through (i) hereof are
referred to as the "Related Security"). (r) (s) 1.2. SECTION Purchase Price . In
consideration for the purchase of any Designated Receivables and the Related
Security, NFRRC shall, on the Closing Date, pay to NFC an amount equal to the
Initial Aggregate Receivables Balance for such Designated Receivables (the "
Purchase Price") and NFC shall execute and deliver to NFRRC an Assignment with
respect to such Designated Receivables. On the Closing Date, a portion of the
Purchase Price payable on such date equal to approximately $ 493,686,119.62
shall be paid to NFC in immediately available funds, and the balance of the
Purchase Price shall be recorded as an advance from NFC to NFRRC under the
Navistar Financial Retail Receivables Corporation Revolving Note dated as of
December 16, 1991. 1.3. 1.4. SECTION The Closing . The sale and purchase of the
Designated Receivables shall take place at such a place, on a date and at a time
mutually agreeable to NFC and NFRRC, and may occur simultaneously with the
closing of any related transactions contemplated by the Purchase Agreement and
the Custodian Agreement (collectively, the "Further Transfer and Servicing
Agreements"). 1.5. 1.6. SECTION Payments and Default Fee . In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, the Default Fee in respect thereof until paid in full; provided,
however, that such Default Fee shall not at any time exceed the maximum rate
permitted by applicable law. 1.7. 1.8. SECTION Transfer of Records . 1.9. (a)
NFC hereby sells, transfers, assigns and otherwise conveys to NFRRC all of NFC's
right and title to and interest in the Records relating to the Designated
Receivables, without the need for any further documentation in connection
therewith. In connection with such transfer, NFC hereby grants to each of NFRRC,
the Agent and the Servicer an irrevocable, non-exclusive license to use, without
royalty or payment of any kind, all software used by NFC to account for the
Designated Receivables to the extent necessary to administer the Designated
Receivables, whether such software is owned by NFC or is owned by others and
used by NFC under license agreements with respect thereto, provided that should
the consent of any licensor of such software be required for the grant of the
license described herein to be effective, (i) the grant is limited to the extent
that such consent has been obtained and (ii) NFC hereby agrees that upon the
request of NFRRC (or NFRRC's assignee), NFC will use its reasonable efforts to
obtain the consent of such third-party licensor. The license granted hereby
shall be irrevocable until the indefeasible payment in full of the Aggregate
Unpaids, and shall terminate on the date this Agreement terminates in accordance
with its terms. (b) (c) NFC (i) shall take such action requested by NFRRC and/or
the Agent (as NFRRC's assignee), from time to time hereafter, that may be
necessary or appropriate to ensure that NFRRC and its assigns under the Purchase
Agreement have an enforceable ownership interest in the Records relating to the
Designated Receivables, and (ii) shall use its reasonable efforts to ensure that
NFRRC, the Agent and the Servicer each has an enforceable right (whether by
license or sublicense or otherwise) to use all of the computer software used to
account for the Designated Receivables and/or to recreate such Records. (d)
1.10. SECTION Intended Characterization . 1.11. (a) Except for the obligation of
NFC to repurchase Designated Receivables in the event of a Repurchase Event, the
sale of Receivables hereunder is made without recourse to Originator; provided,
however, that NFC shall be liable to NFRRC for all representations, warranties,
covenants and indemnities made by NFC pursuant to the terms of this Agreement or
any other Transaction Documents to which NFC is a party. (b) (c) It is the
intention of the parties hereto that the purchase of the Designated Receivables
made hereunder shall constitute a sale, which sale is absolute and irrevocable
and provides NFRRC with the full benefits of ownership of the Designated
Receivables. If, notwithstanding the foregoing the conveyance by NFC to NFRRC of
the Designated Receivables hereunder shall be characterized as a secured loan
and not a sale, or such sale shall for any reason be ineffective or
unenforceable, then this Agreement shall be deemed to constitute a security
agreement under the UCC and other applicable law. For this purpose and without
being in derogation of the parties' intention that the sale of Designated
Receivables hereunder shall constitute a true sale thereof, NFC hereby grants to
NFRRC a duly perfected security interest in all of NFC's right, title and
interest in, to and under all Designated Receivables, all Collections and
Related Security with respect thereto, all other rights and payments relating to
the Designated Receivables and all proceeds of the foregoing to secure the
prompt and complete payment of a loan deemed to have been made in an amount
equal to the Purchase Price of the Designated Receivables together with all
other obligations of NFC hereunder, which security interest shall be prior to
all other Adverse Claims thereto. NFRRC and its assigns shall have, in addition
to the rights and remedies which they may have under this Agreement, all other
rights and remedies provided to a secured creditor under the UCC and other
applicable law and in equity, which rights and remedies shall be cumulative. (d)
(e) 2 ARTICLE REPRESENTATIONS AND WARRANTIES
1.1. SECTION Representations and Warranties as to Receivables . NFC makes the
following representations and warranties as to the Designated Receivables on
which NFRRC relies in accepting such Receivables. Such representations and
warranties speak as of the Closing Date (or, if such representation and warranty
expressly specifies another date, then as of such other date), and as of the
related transfer of such Designated Receivables under the Further Transfer and
Servicing Agreements, and shall survive the sale, transfer and assignment of
such Designated Receivables to NFRRC and the subsequent assignment and transfer
thereof pursuant to the Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each Designated Receivable:
(b)
(i) was originated by NFC in the ordinary course of NFC's business solely
to finance a retail purchase by a retail customer or a refinancing of a
Financed Vehicle or Financed Vehicles by a retail customer and was
fully and properly executed by the parties thereto;
(i) has created a valid, binding and enforceable security interest in favor
of NFC in each Financed Vehicle related thereto, which security
interest will be validly assigned by NFC to NFRRC and will be
assignable by NFRRC to a subsequent purchaser and which security
interest is perfected or will be perfected within 100 days after the
Closing date;
(i) contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for realization
against the collateral of the benefits of the security;
(i) shall yield interest at the Annual Percentage Rate; and
(i) is in one of the forms attached hereto as Exhibit B;
(i) comes from one of the following ategories, which differ in their
provisions for the payment of principal and interest: Equal Payment
Fully Amortizing Receivables, Equal Payment Skip Receivables, Equal
Payment Balloon Receivables, Level Principal Fully Amortizing
Receivables, Level Principal Skip Receivables, Level Principal Balloon
Receivables, or Other Receivables. "Equal Payment Fully Amortizing
Receivables" are Receivables that provide for equal monthly payments
that fully amortize the amount financed over its original term to
maturity. "Equal Payment Skip Receivables" are Receivables that provide
for equal monthly payments in eleven or fewer months of each twelve-
month period that fully amortize the amount financed over its original
term to maturity. "Equal Payment Balloon Receivables" are Receivables
that provide for equal monthly payments except that a larger payment
becomes due on the final maturity date for such Receivables. "Level
Principal Fully Amortizing Receivables" are Receivables that provide
for monthly payments consisting of level principal amounts together
with accrued and unpaid interest on the unpaid Receivable Balances.
"Level Principal Skip Receivables" are Receivables that provide for
monthly payments in eleven or fewer months of each twelve-month period
consisting of level principal amounts together with accrued and unpaid
interest on the unpaid Receivable Balances. "Level Principal Balloon
Receivables" are Receivables that provide for monthly payments
consisting of level principal amounts together with accrued and unpaid
interest n the unpaid Receivable Balances, except that a larger
principal payment becomes due on the final maturity date for such
Receivables. "Other Receivables" are Receivables not described above,
including Receivables that provide for level monthly payments in
eleven or fewer months of each twelve-month period that amortize a
portion of the amount financed over its original term to maturity with
a larger payment that becomes due on the final maturity date for such
Receivables.
(a) Schedule of Receivables. The information set forth in the Schedule of
Receivables is true and correct in all material respects; (b) (c) Compliance
With Law. All requirements of applicable federal, state and local laws, and
regulations thereunder, including the Equal Credit Opportunity Act, the Federal
Reserve Board's Regulation "B", the Soldiers' and Sailors' Civil Relief Act of
1940, and any applicable bulk sales or bulk transfer law and other equal credit
opportunity and disclosure laws, in respect of any of the Designated
Receivables, have been complied with in all material respects, and each such
Designated Receivable and the sale of the Financed Vehicle or Financed Vehicles
evidenced thereby complied at the time it was originated or made and now
complies in all material respects with all legal requirements of the
jurisdiction in which it was originated or made; (d) (e) Binding Obligation.
Each Designated Receivable represents the genuine, legal, valid and binding
payment obligation in writing of the Obligor thereon, enforceable against the
Obligor by the holder thereof in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights in
general and by equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law; (f) (g) Security Interest in Financed
Vehicle. Immediately prior to the sale, transfer and assignment thereof pursuant
hereto, each Designated Receivable was secured by a validly perfected first
priority security interest in the related Financed Vehicle or, in the event any
such Receivable was secured by more than one Financed Vehicle, in each related
Financed Vehicle, each in favor of NFC as secured party, or all necessary and
appropriate action had been commenced that will result, within 100 days
following the Cutoff Date, in the valid perfection of a first priority security
interest in each related Financed Vehicle in favor of NFC as secured party in
each case (except for first priority security interests which may exist in any
accessions not financed by NFC); (h) (i) Receivables In Force. No Designated
Receivable has been satisfied, subordinated or rescinded, and no Financed
Vehicle securing any Designated Receivable has been released from the Lien of
the related Receivable in whole or in part; (j) (k) No Waiver. Since the Cutoff
Date, no provision of any Designated Receivable has been waived, altered or
modified in any respect; (l) (m) No Amendments. Since the Cutoff Date, no
Designated Receivable has been amended or otherwise modified such that the total
number of the Obligor's Scheduled Payments is increased or the Initial
Receivable Balance thereof is increased; (n) (o) No Defenses. No right of
rescission, setoff, counterclaim or defense has been asserted or threatened with
respect to any Designated Receivable nor, to the knowledge of NFC, is any such
Receivable subject to any right of rescission, counterclaim or defense; (p) (q)
No Liens. There are, to NFC's knowledge, no Liens or claims that have been filed
for work, labor or materials affecting any Financed Vehicle securing any
Designated Receivable that are or may be prior to, or equal or coordinate with,
the security interest in each Financed Vehicle granted by the Designated
Receivable (except for Liens or claims which may exist in any accessions to the
Financed Vehicles not financed by NFC); (r) (s) No Default. There has been no
default, breach, violation or event permitting acceleration under the terms of
any Designated Receivable, and no event has occurred and is continuing that with
notice or the lapse of time would constitute a default, breach, violation or
event permitting acceleration under the terms of any Designated Receivable, and
NFC has not waived any of the foregoing, in each case except for payments on any
Designated Receivables which are not more than 60 days past due (measured from
the date of any Scheduled Payment) as of the Cutoff Date; (t) (u) Insurance.
Each Obligor on a Designated Receivable is required to maintain a physical
damage insurance policy for each Financed Vehicle of the type that NFC requires
in accordance with its customary underwriting standards for the purchase of
medium and heavy duty truck, bus and trailer receivables, unless NFC has in
accordance with its Customary Servicing Procedures permitted an Obligor to
self-insure such Financed Vehicle; (v) (w) Good Title. No Designated Receivable
or Related Security has been sold, transferred, assigned or pledged by NFC to
any Person other than NFRRC; immediately prior to the conveyance of any
Designated Receivables pursuant to this Agreement, NFC was the legal and
beneficial owner thereof, and was the legal and beneficial owner of all Related
Security, or held a valid and perfected security interest in all Related
Security, in each case, free of any Lien (except for any Lien which may exist in
accessions to the Financed Vehicles not financed by NFC); and, upon execution
and delivery of this Agreement and the related Assignment by NFC, and
satisfaction of the conditions set forth in Section 4.02 hereof relating to such
Designated Receivables, NFRRC shall have all of the right, title and interest of
NFC in and to the Designated Receivables and the Related Security, free of any
Lien (except for any Lien which may exist in accessions to the Financed Vehicles
not financed by NFC); (x) Lawful Assignment. No Designated Receivable was
originated in, or is subject to the laws of, any jurisdiction the laws of which
would make unlawful the sale, transfer and assignment of such Designated
Receivable under this Agreement or any Further Transfer and Servicing
Agreements; (y) (z) All Filings Made. All filings necessary under the UCC in any
jurisdiction to give NFC a perfected ownership interest and NFRRC a first
priority perfected security or ownership interest in the Designated Receivables
and the Related Security and all Collections thereon since the Cutoff Date (to
the extent it constitutes property, a security interest in which may be
perfected by filing under the applicable UCC ("Code Collateral")) shall have
been made, and the Designated Receivables constitute Code Collateral; (aa) (bb)
One Original. There is only one original executed copy of each Designated
Receivable; (cc) (dd) No Documents or Instruments. No Designated Receivable, or
constituent part thereof, constitutes a "negotiable instrument" or "negotiable
document of title" (as such terms are used in the UCC); and each Designated
Receivable is an "account" or "chattel paper" within the meaning of Section
9-105 or 9-106, respectively, of the UCC. (ee) (ff) Maturity of Receivables.
Each Designated Receivable has an original term to maturity of not less than 15
months and not greater than 84 months and, as of the Cutoff Date, had a
remaining term to maturity of not less than 12 months and not greater than 72
months; (gg) (hh) Annual Percentage Rate. The Annual Percentage Rate of each
Designated Receivable is not less than 6.00%; (ii) (jj) Scheduled Payments;
Delinquency. As of the Cutoff Date, each Designated Receivable had a first
scheduled payment that was due on or before October 31, 1999; as of the Cutoff
Date, no Designated Receivable had a payment that was more than 60 days past
due; as of the Closing Date, no Designated Receivable had a final scheduled
payment that is due later than September 30, 2005; (kk) (ll) Vehicles. Each
Financed Vehicle to which a Designated Receivable relates was a new or used
medium or heavy duty truck, bus or trailer at the time the related Obligor
executed the Retail Note; (mm) (nn) Origin. Each Designated Receivable was
originated in the United States by an Obligor domiciled or doing business in the
United States or any subdivision thereof, and is denominated in U.S. dollars;
(oo) Beginning Receivable Balance. The Initial Receivable Balance of each
Designated Receivable shall be $1,000 or more; (pp) (qq) Concentration. The
aggregate Initial Receivables Balance of all Receivables from a single Obligor
shall not be more than 2.00% of the Initial Aggregate Receivables Balance; (rr)
(ss) Selection Criteria. The Designated Receivables were selected on a random
basis from all Retail Notes satisfying the selection criteria described herein,
and no selection procedures believed to be adverse to NFRRC or to the Agent or
the Purchasers were utilized in selecting the Designated Receivables from those
Retail Notes of NFC which meet the selection criteria under this Agreement; (tt)
(uu) No Government Contracts. No Obligor under any of the Designated Receivables
is a governmental authority of the United States or any state or political
subdivision thereof; (vv) (ww) Contractual Conditions. Each Designated
Receivable arises under a Contract that (i) does not require the Obligor
thereunder to consent to the transfer, sale or assignment of the rights and
duties of NFC or any of its assignees under such Contract and (ii) does not
contain a confidentiality provision that purports to restrict the ability of the
Agent or any Purchaser to exercise its rights under the Receivables Sale
Agreement, including, without limitation, its right to review such Contract;
(xx) (yy) Origination and Servicing. Each Designated Receivable was originated
and has been serviced in accordance with NFC's Customary Servicing Procedures;
and (zz) (aaa) No Contingencies. NFC has fully satisfied and performed all of
its obligations under each Contract with respect to each Designated Receivable,
and no further action is required to be performed by any Person with respect
thereto other than payment thereon by the applicable Obligor.
(bbb) 1.2. SECTION
Additional Representations and Warranties of NFC . NFC hereby represents and
warrants to NFRRC as of the date hereof and as of the related closing under the
Further Transfer and Servicing Agreements, in its capacity as the seller of the
Receivables hereunder, that: 1.3. (a) Organization and Good Standing. NFC has
been duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Receivables; (b)
(c) Due Qualification. NFC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires or shall require such qualification; (d)
(e) Power and Authority. NFC has the power and authority to execute and deliver
this Agreement and to carry out its terms; NFC has full power and authority to
sell and assign the Designated Receivables and the Related Security to NFRRC,
has duly authorized such sale and assignment to NFRRC by all necessary corporate
action; and the execution, delivery and performance of this Agreement have been
duly authorized by NFC by all necessary corporate action; (f) (g) Valid Sale;
Binding Obligation. This Agreement, together with the Assignment and each other
Transaction Document to which NFC is a party, has been duly executed and
delivered and constitutes a valid sale, transfer and assignment of the
Designated Receivables and Related Security, enforceable against creditors of
and purchasers from NFC and constitutes a legal, valid and binding obligation of
NFC enforceable against NFC in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law; (h) (i)
No Violation. The consummation of the transactions contemplated by this
Agreement and the Assignment, and the fulfillment of the terms of this Agreement
and the Assignment shall not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of NFC, or any
indenture, agreement, mortgage, deed of trust or other instrument to which NFC
is a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than this
Agreement, the Assignment or any Further Transfer and Servicing Agreement), or
violate any law or, to NFC's knowledge, any order, writ, judgment, award,
injunction, decree, rule or regulation applicable to NFC of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NFC or any of its properties; (j) (k)
No Proceedings. There are no proceedings or, to NFC's knowledge, investigations
pending or, to NFC's knowledge, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over NFC or its properties (i) asserting the invalidity of this
Agreement or the Assignment, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the Assignment, (iii) seeking
any determination or ruling that might materially and adversely affect the
performance by NFC of its obligations under, or the validity or enforceability
of, this Agreement or the Assignment or (iv) that could result in a Material
Adverse Change; and (l) (m) No Consent. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by NFC of
this Agreement or the Assignment or the consummation by NFC of the transactions
contemplated hereby or thereby except as expressly contemplated herein or
therein. (n) (o) Accuracy of Information. All information heretofore furnished
by NFC or any of its Affiliates to NFRRC, the Agent or the Purchasers for
purposes of or in connection with this Agreement, any of the other Transaction
Documents or any transaction contemplated hereby or thereby is, and all such
information hereafter furnished by NFC or any of its Affiliates to NFRRC, the
Agent or the Purchasers will be, true and accurate in every material respect on
the date such information is stated or certified and does not and will not
contain any material misstatement of fact or omit to state a material fact or
any fact necessary to make the statements contained therein not misleading. (p)
(q) Use of Proceeds. No proceeds of any purchase hereunder will be used (i) for
a purpose that violates, or would be inconsistent with, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended. (r) (s)
Places of Business. The principal places of business and chief executive office
of NFC and the offices where it keeps all of its Records are located at the
address(es) listed on Exhibit II to the Purchase Agreement or such other
locations of which the Agent has been notified in accordance with Section 7.2(a)
of the Purchase Agreement in jurisdictions where all action required by Section
14.4(a) of the Purchase Agreement has been taken and completed. NFC's Federal
Employer Identification Number is correctly set forth on Exhibit II to the
Purchase Agreement. (t) (u) Not a Holding Company or an Investment Company. Such
Seller Party is not a "holding company" or a "subsidiary holding company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. NFC is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or any successor statute. (v) (w) Year 2000. NFC (i) has reviewed the areas
within its business and operations which could be adversely affected by the Year
2000 Problem, (ii) has developed a Year 2000 Plan to address the Year 2000
Problem on a timely basis, (iii) is taking all actions necessary to meet the
schedule and goals of the Year 2000 Plan and (iv) has adequate funds to
implement the Year 2000 Plan. NFC does not reasonably anticipate that the Year
2000 Problem could result in a Material Adverse Change. (x) (y) Accounting. The
manner in which such NFC accounts for the transactions contemplated by this
Agreement and the Purchase Agreement does not jeopardize the true sale analysis.
(z) (aa) Taxes. NFC will do nothing to materially impair the rights, title and
interest of any Purchaser in and to the Purchaser Interest and will pay when due
(or contest in good faith) any taxes, including without limitation any sales
tax, excise tax or other similar tax or charge, payable in connection with the
Receivables and their creation and satisfaction. (bb) (cc) Financial Condition.
NFC is solvent and able to pay its debts when due, and is not the subject of any
case or proceeding, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, arrangement, adjustment of debts, winding-up, liquidation,
dissolution, composition, receivership, trusteeship, custodianship, or any other
proceeding regarding relief of debtors or enforcement of creditors' rights. NFC
shall not take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing cases or proceedings. NFC
is not a defendant in any case, proceeding or other action seeking issuance of a
writ or warrant of attachment, execution, distraint or similar process against
all or any part of its assets.
1.1. SECTION Representations and Warranties of NFRRC . NFRRC hereby represents
and warrants to NFC as of the date hereof:
1.2.
(a) Organization and Good Standing. NFRRC has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire and own the Receivables; (b) (c) Due Qualification. NFRRC
is duly qualified to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business requires such
qualification; (d) (e) Power and Authority. NFRRC has the power and authority to
execute and deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement have been duly authorized by NFRRC by
all necessary corporate action; (f) (g) No Violation. The consummation by NFRRC
of the transactions contemplated by this Agreement and the fulfillment of the
terms of this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or by-laws of NFRRC, or
any indenture, agreement, mortgage, deed of trust or other instrument to which
NFRRC is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than this Agreement, the
Assignment or any Further Transfer and Servicing Agreement, or violate any law
or, to NFRRC's knowledge, any order, rule or regulation applicable to NFRRC of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over NFRRC or any of its
properties; (h) (i) No Proceedings. There are no proceedings or, to NFRRC's
knowledge, investigations pending or, to NFRRC's knowledge, threatened, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over NFRRC or its properties
(i) asserting the invalidity of this Agreement or the Assignment, (ii) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by NFRRC of its obligations under, or the
validity or enforceability of, this Agreement or the Assignment; (j) (k) Binding
Obligation. This Agreement shall constitute a legal, valid and binding
obligation of NFRRC enforceable against NFRRC in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law; and (l)
(m) No Consent. No permit, consent, approval or authorization of, or declaration
to or filing with, any governmental authority is required in connection with the
execution, delivery and performance by NFRRC of this Agreement, or the
consummation by NFRRC of the transactions contemplated hereby except as
expressly contemplated herein. (n) (o)
2 ARTICLE CONDITIONS
1.1. SECTION Conditions to Obligation of NFRRC . The obligation of NFRRC to
purchase Designated Receivables and the Related Security hereunder is subject to
the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties of
NFC in Section 3.01 regarding the Designated Receivables and the Related
Security, and the representations and warranties of NFC in Section 3.02, shall
be true and correct on the Closing Date, and NFC shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date. (b)
(c) No Repurchase Event. No Repurchase Event (as defined in Section 5.04 below)
shall have occurred on or prior to the Closing Date with respect to any of the
Designated Receivables. (d) (e) Computer Files Marked. NFC shall, at its own
expense, on or prior to the Closing Date, (i) indicate in its computer files
created in connection with the Designated Receivables that the Designated
Receivables have been sold to NFRRC pursuant to this Agreement and the related
Assignment and (ii) deliver to NFRRC the Schedule of Receivables certified by an
officer of NFC to be true, correct and complete. (f) (g) Documents to be
Delivered By NFC (h) (i) The Assignment. On the Closing Date, NFC shall execute
and deliver to NFRRC the Assignment of the Designated Receivables and the
Related Security.
(i) Evidence of UCC Filing. On or prior to the Closing Date, NFC shall record
record and file, at its own expense, a UCC-1 financing statement in each
jurisdiction in which required by applicable law, executed by NFC as
seller or debtor, naming NFRRC as purchaser or secured party, naming the
Designated Receivables and Related Security as collateral, meeting the
requirements of the laws of each such jurisdiction and in such manner as
is necessary to perfect under the UCC the sale, transfer, assignment and
conveyance of the Designated Receivables and the Related Security (to the
extent it constitutes Code Collateral) to NFRRC. NFC shall deliver a
file-stamped copy, or other evidence satisfactory to NFRRC of such
filing, to NFRRC on or prior to the Closing Date.
(i) Other Documents. On the Closing Date, NFC shall provide such other
documents as NFRRC may reasonably request.
(a) Other Transactions. The related transactions contemplated by the Further
Transfer and Servicing Agreements shall be consummated on or prior to the
Closing Date (and all conditions precedent thereto shall be satisfied) to the
extent that such transactions are intended to be substantially contemporaneous
with the transactions hereunder. (b) 1.2. SECTION Conditions To Obligation of
NFC . The obligation of NFC to sell the Designated Receivables to NFRRC
hereunder on the Closing Date is subject to the satisfaction of the following
conditions: 1.3. (a) Representations and Warranties True. The representations
and warranties of NFRRC hereunder shall be true and correct as of the Closing
Date, and NFRRC shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date. (b) (c) Purchase Price. On the
Closing Date, NFRRC shall pay to NFC the Purchase Price, payable on such date as
provided in Section 2.02 of this Agreement. (d) (e) 2 ARTICLE ADDITIONAL
AGREEMENTS
NFC agrees with NFRRC as follows:
1.1. SECTION Conflicts With Further Transfer and Servicing Agreements . To the
extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
1.1. SECTION Protection of Title .
1.2.
(a) Filings. NFC shall execute and file such financing statements and cause to
be executed and filed such continuation and other statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of NFRRC under this Agreement and the interests of the
Agent and the Purchasers under the Purchase Agreement in the Designated
Receivables and the Related Security and in the proceeds thereof. NFC shall
deliver (or cause to be delivered) to NFRRC file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(a) Name Change. NFC shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed by NFC in accordance with Section 5.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given NFRRC at least 60 days prior written notice thereof and shall file
such financing statements or amendments as may be necessary to continue the
perfection of NFRRC's security interest in the Designated Receivables and the
Related Security. (b) (c) Executive Office; Maintenance of Offices. NFC shall
give NFRRC at least 60 days prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement. NFC shall at all times maintain each office from which it services
Designated Receivables and its principal executive office within the United
States of America. (d) 1.2. SECTION Other Liens or Interests . Except for the
conveyances hereunder and as contemplated by the Further Transfer and Servicing
Agreements, NFC shall not sell, pledge, assign or transfer the Designated
Receivables and the Related Security to any other Person, or grant, create,
incur, assume or suffer to exist any Lien (except any Lien which may exist in
accessions to the Financed Vehicles not financed by NFC) on any interest
therein, and NFC shall defend the right, title and interest of NFRRC in, to and
under the Designated Receivables and Related Security against all claims of
third parties claiming through or under NFC. 1.3. 1.4. SECTION Repurchase Events
. By its execution of the Further Transfer and Servicing Agreements to which it
is a party, NFC shall be deemed to acknowledge the assignment by NFRRC of such
of its right, title and interest in, to and under this Agreement to the
Subsequent Transferee as shall be provided in the Further Transfer and Servicing
Agreements. NFC hereby covenants and agrees with NFRRC for the benefit of NFRRC
and any Subsequent Transferee that in the event of a breach of any of NFC's
representations and warranties contained in Section 3.01 hereof with respect to
any Receivable (a "Repurchase Event") as of the second Accounting Date following
NFC's discovery or its receipt of notice of breach (or, at NFC's election, the
first Accounting Date following such discovery), unless such breach shall have
been cured in all material respects, NFC will repurchase such Receivable from
NFRRC on the related Distribution Date for an amount equal to the Warranty
Payment, without further notice from NFRRC hereunder. It is understood and
agreed that so long as NFC fulfills its obligation to repurchase any Receivable
as to which a breach has occurred and is continuing, such continuing breach
shall not in and of itself result in a breach under this agreement. 1.5. 1.6.
SECTION Indemnification . NFC shall indemnify NFRRC for any liability as a
result of the failure of a Designated Receivable to be originated in compliance
with all requirements of law and for any breach of any of its representations
and warranties contained herein. This indemnity obligation shall be in addition
to any obligation that NFC may otherwise have. 1.7. 1.8. SECTION Further
Assignments . NFC acknowledges that NFRRC shall, pursuant to the Further
Transfer and Servicing Agreements, sell interests in Designated Receivables to
the Subsequent Transferee and assign its rights hereunder to the Subsequent
Transferee, subject to the terms and conditions of the Further Transfer and
Servicing Agreements, and that the Subsequent Transferee may in turn further
pledge, assign or transfer its rights in Designated Receivables and this
Agreement. NFC further acknowledges that NFRRC may assign its rights under the
Custodian Agreement to the Subsequent Transferee. 1.9. 1.10. SECTION Pre-Closing
Collections . Within two Business Days after the Closing Date, NFC shall
transfer to the account or accounts designated by NFRRC (or by the Subsequent
Transferee under the Further Transfer and Servicing Agreements) all Collections
(from whatever source) on or with respect to the Designated Receivables and the
Related Security. 1.11. 1.12. SECTION Limitation on Transfer of NITC Purchase
Obligations . NFRRC acknowledges and agrees that the rights pursuant to the NITC
Purchase Obligations are personal to NFC, and only the proceeds of such rights
have been assigned to NFRRC. NFRRC is not and is not intended to be a
third-party beneficiary of such rights and, accordingly, such rights will not be
exercisable by, enforceable by or for the benefit of, or preserved for the
benefit of, NFRRC. 1.13. 1.14. SECTION Compliance with Laws and Preservation of
Corporate Existence . NFC will comply in all respects with all applicable laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject. NFC will preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign corporation in each
jurisdiction where its business is conducted, except where the failure to so
preserve and maintain or qualify could not reasonably be expected to result in a
Material Adverse Change. 1.15. 1.16. SECTION Keeping and Marking of Records and
Books . NFC will keep proper books and records of account in which full, true
and correct entries in conformity with GAAP (to the extent applicable); and
permit representatives of the Agent and any Financial Institution to examine and
make extracts from any of its Records relating to the Receivables and the
Related Security, including, without limitation, the related Contracts, during
normal business hours, on the terms set forth in Section 7.1(d) of the Purchase
Agreement. 1.17. 1.18. SECTION Purchasers' Reliance . NFC acknowledges that the
Agent and the Purchasers are entering into the transactions contemplated by the
Purchase Agreement in reliance upon NFRRC's identity as a legal entity that is
separate from NFC and any Affiliates thereof. Therefore, from and after the date
of execution and delivery of this Agreement, NFC will take all reasonable steps
including, without limitation, all steps that NFRRC or any assignee of NFRRC may
from time to time reasonably request to maintain NFRRC's identity as a separate
legal entity and to make it manifest to third parties that NFRRC is an entity
with assets and liabilities distinct from those of NFC and any Affiliates
thereof and not just a division of NFC or any such Affiliate. Without limiting
the generality of the foregoing and in addition to the other covenants set forth
herein, NFC (i) will not hold itself out to third parties as liable for the
debts of NFRRC nor purport to own the Designated Receivables and other assets
acquired by NFRRC, (ii) will take all other actions necessary on its part to
ensure that Buyer is at all times in compliance with the covenants set forth in
Section 7.1 of the Purchase Agreement and (iii) will comply, and will cause
NFRRC to comply, with the Tax Allocation Agreement. 1.19. 1.20. SECTION Sale
Treatment . NFC intends to treat the transfer and assignment described herein as
a sale for accounting and tax purposes. 1.21. 1.22.
2 ARTICLE INDEMNIFICATION 2
2.1. SECTION Indemnities by the Originator . Without limiting any other rights
that NFRRC may have hereunder or under applicable law, NFC hereby agrees to
indemnify NFRRC and its officers, directors, agents and employees and its
assigns under the Further Transfer and Servicing Agreement (each an "Indemnified
Party") from and against any and all damages, losses, claims, taxes,
liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them arising out of or as a result of this Agreement or the
acquisition, either directly or indirectly, by NFRRC or its assigns under the
Further Transfer and Servicing Agreements of an interest in the Receivables,
excluding, however: 2.2. (a) Indemnified Amounts to the extent a final judgment
of a court of competent jurisdiction holds that such Indemnified Amounts
resulted from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification; (b) (c) Indemnified Amounts to the
extent the same includes losses in respect of Receivables that are uncollectible
on account of the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor; or (d) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or measured by the
overall net income of such Indemnified Party to the extent that the computation
of such taxes is consistent with the Intended Characterization; provided,
however, that nothing contained in this sentence shall limit the liability of
NFC or limit the recourse of NFRRC to NFC for amounts otherwise specifically
provided to be paid by NFC under the terms of this Agreement. Without limiting
the generality of the foregoing indemnification, NFC shall indemnify NFRRC for
Indemnified Amounts (including, without limitation, losses in respect of
uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to NFC) relating to or resulting from: (e) (f) any
representation or warranty made by NFC (or any officers of NFC) under or in
connection with this Agreement, any other Transaction Document or any other
information or report delivered by NFC pursuant hereto or thereto, which shall
have been false or incorrect when made or deemed made; (g) (h) the failure by
NFC to comply with any applicable law, rule, order, writ, judgment, award,
injunction, decree or regulation with respect to any Receivable or Contract
related thereto, or the nonconformity of any Receivable or Contract included
therein with any such applicable law, rule or regulation or any failure of the
NFC to keep or perform any of its obligations, express or implied, with respect
to any Contract; (i) (j) any failure of NFC to perform its duties, covenants or
other obligations in accordance with the provisions of this Agreement or any
other Transaction Document; (k) (l) any products liability, personal injury or
damage suit or similar claim arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract; (m) (n) any dispute,
claim, counterclaim, offset or defense (other than discharge in bankruptcy of
the Obligor) of the Obligor to the payment of any Receivable (including, without
limitation, a defense based on such Receivable or the related Contract not being
a legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), any rescission with respect to any Receivable or any
Contract related thereto or any other claim resulting from the sale of the
merchandise or service related to such Receivable or the furnishing or failure
to furnish such merchandise or services; (o) (p) the commingling of Collections
of Receivables at any time with other funds; (q) (r) any investigation,
litigation or proceeding related to or arising from this Agreement or any other
Transaction Document, the transactions contemplated hereby, the use of the
proceeds of the Purchase, the ownership of the Receivables or any other
investigation, litigation or proceeding relating to NFC in which any Indemnified
Party becomes involved as a result of any of the transactions contemplated
hereby; (s) (t) any inability to litigate any claim against any Obligor in
respect of any Receivable as a result of such Obligor being immune from civil
and commercial law and suit on the grounds of sovereignty or otherwise from any
legal action, suit or proceeding; (u) (v) any Servicer Default described in
Section 9.1(f) or 9.1(g) of the Purchase Agreement; (w) (x) (m) any failure of
NFC to acquire and maintain legal and equitable title to, and ownership of any
Receivable and the Related Security and Collections with respect thereto, free
and clear of any Adverse Claim (other than as created hereunder); or any attempt
by any Person to void such transfer under statutory provisions or common law or
equitable action; (y) (z) (n) any failure to vest and maintain vested in NFRRC,
or to transfer to NFRRC, legal and equitable title to, and ownership of the
Receivables, the Related Security and the Collections, free and clear of any
Adverse Claim; (aa) (bb) (o) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or other applicable laws with respect to any
Receivable, the Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of the Purchase or at any
subsequent time; (cc) (dd) (p) any action or omission by NFRRC which reduces or
impairs the rights of Buyer with respect to any Receivable or the value of any
such Receivable; (ee) (ff) (q) any attempt by any Person to void the purchase
hereunder under statutory provisions or common law or equitable action; and (gg)
(hh) (r) the Year 2000 Problem. (ii) (jj)
3 ARTICLE MISCELLANEOUS PROVISIONS 2
2.1. SECTION Amendment. This Agreement may be amended from time to time (subject
to any expressly applicable amendment provision of the Further Transfer and
Servicing Agreements) by a written amendment duly executed and delivered by NFC
and NFRRC. Prior to the execution of any such amendment, NFC shall furnish
written notification of the substance of such amendment to each of the Rating
Agencies.
1.1. SECTION Survival . The representations, warranties and covenants of NFC set
forth in Article III and Article V of this Agreement shall remain in full force
and effect and shall survive the Closing Date and the closing under the Further
Transfer and Servicing Agreements. This Agreement shall not be terminated prior
to the termination of the Further Transfer and Servicing Agreements. 1.2. 1.3.
SECTION Notices . All demands, notices and communications under this Agreement
shall be delivered as specified in Section 14.2 of the Purchase Agreement. 1.4.
1.5. SECTION Governing Law . All questions concerning the construction, validity
and interpretation of this Agreement and each Assignment shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict provision or
rule (whether of the State of Illinois or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Illinois. 1.6. 1.7. SECTION Waivers . No failure or delay on the part of NFRRC
in exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy. The rights and remedies
provided herein shall be cumulative and nonexclusive of any rights or remedies
provided by law. Any waiver of the Agreement shall be effective only in the
specific instance and for the specific purpose given. 1.8. 1.9. SECTION Costs
and Expenses . NFC agrees to pay all reasonable out-of-pocket costs and expenses
of NFRRC, including fees and expenses of counsel, in connection with the
perfection as against third parties of NFRRC's right, title and interest in, to
and under the Designated Receivables and the enforcement of any obligation of
NFC hereunder. 1.10. 1.11. SECTION Confidential Information . NFRRC agrees that
it shall neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of NFRRC's rights hereunder,
under the Designated Receivables, under the Further Transfer and Servicing
Agreements or as required by law. 1.12. 1.13. SECTION Headings . The various
headings in this Agreement are for purposes of reference only and shall not
affect the meaning or interpretation of any provision of this Agreement. 1.14.
1.15. SECTION Counterparts . This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument. 1.16. 1.17. SECTION Severability of Provisions . If any one or
more of the covenants, agreements, provisions or terms of this Agreement shall
for any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent permitted,
and if not so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Subsequent Transferee. 1.18. 1.19. SECTION Further
Assurances . NFC and NFRRC agree to do and perform, from time to time, at their
expense, any and all acts and to execute and deliver any and all further
instruments and documents required or reasonably requested by the other more
fully to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Designated
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction. 1.20. 1.21. SECTION No Other Third-Party Beneficiaries . This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
any Subsequent Transferees and their respective successors and permitted
assigns. Except as otherwise expressly provided in this Agreement, no other
Person shall have any right or obligation hereunder. 1.22. 1.23. SECTION Merger
and Integration . Except as specifically stated otherwise herein, this Agreement
sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are superseded by
this Agreement. This Agreement may not be modified, amended, waived, or
supplemented except as provided herein. 1.24. 1.25. SECTION Protection of
Interests . If NFC fails to perform any of its obligations hereunder, NFRRC (or
its assigns) may (but shall not be required to) perform, or cause performance
of, such obligations, and NFC's (or such assigns') costs and expenses incurred
in connection therewith shall be payable by Originator as provided in Section
10.3 of the Purchase Agreement. NFC irrevocably authorizes NFRRC (and its
assigns) at any time and from time to time in the sole discretion of NFRRC (or
its assigns), and appoints NFRRC (and its assigns) as its attorney(ies)-in-fact,
to act on behalf of NFC (i) to execute on behalf of NFC as debtor and to file
financing statements necessary or desirable in NFRRC's (or its assigns') sole
discretion to perfect and to maintain the perfection and priority of the
interest of NFRRC in the Designated Receivables and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing statement
with respect to the Designated Receivables as a financing statement in such
offices as NFRRC (or its assigns) in their sole discretion deem necessary or
desirable to perfect and to maintain the perfection and priority of NFC's
interests in the Designated Receivables. This appointment is coupled with an
interest and is irrevocable. 1.26. 1.27. SECTION Bankruptcy Petition . (a) NFC
and NFRRC each hereby covenants and agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding senior
indebtedness of any Company or any Financial Institution that is a special
purpose bankruptcy remote entity, it will not institute against, or join any
other Person in instituting against, such Company or any such entity any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States. 1.28. (b) NFC covenants and agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding
obligations of NFRRC under the Purchase Agreement, it will not institute
against, or join any other Person in instituting against, NFC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States. 1.29. 1.30. SECTION Limitation of Liability . Except with respect
to any claim arising out of the willful misconduct or gross negligence of the
Agent or any Purchaser, no claim may be made by NFC, NFRRC or any other Person
against the Agent or any such Purchaser or their respective Affiliates,
directors, officers, employees, attorneys or agents, for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith, and NFC and NFRRC each hereby waives, releases, and agrees
not to sue upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor. 1.31. 1.32. SECTION
Assignments . NFC may not assign any of its rights and obligations hereunder or
any interest herein without the prior written consent of NFRRC and the Agent.
NFRRC may assign at any time its rights and obligations hereunder and interests
herein to any other Person without the consent of NFC. Without limiting the
foregoing, NFC acknowledges that NFRRC, pursuant to the Purchase Agreement, may
assign to the Agent, for the benefit of the Purchasers, its rights, remedies,
powers and privileges hereunder and that the Agent and the Purchasers may
further assign such rights, remedies, powers and privileges to the extent
permitted in the Purchase Agreement. NFC agrees that the Agent, as the assignee
of NFRRC, shall, subject to the terms of the Purchase Agreement, have the right
to enforce this Agreement and to exercise directly all of NFRRC's rights and
remedies under this Agreement (including, without limitation, the right to give
or withhold any consents or approvals of NFRRC to be given or withheld
hereunder) and NFC agrees to cooperate fully with the Agent in the exercise of
such rights and remedies. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms and
shall remain in full force and effect until terminated in accordance with its
terms; provided, however, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by NFC pursuant to Article III;
(ii) the indemnification and payment provisions of Article VI and (iii) Sections
7.15 and 7.16 shall be continuing and shall survive any termination of this
Agreement. 1.33. 1.34. SECTION Consent to Jurisdiction . Each party hereby
irrevocably submits to the exclusive jurisdiction of any United States Federal
or Illinois State Court sitting in Chicago, Illinois, in any action or
proceeding arising out of or relating to this agreement or any document executed
by such person pursuant to this agreement and each party hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in any such court and irrevocably waives any objection it may now or
hereafter have as to the venue of any such suit, action or proceeding brought in
such a court or that such court is an inconvenient forum. 1.35. 1.36. SECTION
Waiver of Jury Trial . Each party hereto hereby waives trial by jury in any
judicial proceeding involving, directly or indirectly, any matter (whether
sounding in tort, contract or otherwise) in any way arising out of, related to,
or connected with this agreement, any document executed by the seller pursuant
to this agreement or the relationship established hereunder or thereunder. 1.37.
1.38.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
NAVISTAR FINANCIAL CORPORATION
By:_______________________________________________
R. Wayne Cain, Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By:_______________________________________________
R. Wayne Cain, Vice President and Treasurer
<PAGE>
EXHIBIT A
FORM OF ASSIGNMENT
For value received, in accordance with the Receivables Sale Agreement,
dated as of November 12, 1999 (the "Sale Agreement"), between Navistar Financial
Corporation, a Delaware corporation ("NFC"), and Navistar Financial Retail
Receivables Corporation a Delaware corporation ("NFRRC"), NFC does hereby sell,
assign, transfer and otherwise convey unto NFRRC, without recourse (except to
the extent expressly provided in the Sale Agreement), all right, title and
interest of NFC in, to and under (i) the Receivables listed on Schedule I
hereto, (having an Initial Aggregate Receivables Balance of $533,279,698.52)
(the "Designated Receivables") and all monies paid thereon (including
Liquidation Proceeds) and due thereunder on and after the Cutoff Date
(including, without limitation, all Collections); (ii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Designated Receivables
and, to the extent permitted by law, any accessions thereto which are financed
by NFC; (iii) all other security interests or liens and property subject thereto
from time to time, if any, purporting to secure payment of such Receivable,
whether pursuant to a contract related to such Receivable or otherwise, together
with all financing statements and security agreements describing any collateral
securing such Receivable; (iv) the benefits of any lease assignments with
respect to the Financed Vehicles; (v) any proceeds from any Insurance Policies
with respect to the Designated Receivables; (vi) any proceeds from Dealer
Liability with respect to the Designated Receivables, proceeds from any NITC
Purchase Obligations with respect to the Designated Receivables (subject to the
limitations set forth in Section 5.08 of the Sale Agreement); (vii) all
guaranties, letters of credit and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Receivable
whether pursuant to the Contract related to such Receivable or otherwise (other
than the NITC Purchase Obligations); (viii) all of Seller's right, title and
interest in, to and under the Designated Accounts and all monies therein; and
(ix) any proceeds of any of the foregoing.
The foregoing sale does not constitute and is not intended to result in
any assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Sale
Agreement and is to be governed by the Sale Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Sale Agreement.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of November 12, 1999.
NAVISTAR FINANCIAL CORPORATION
By:________________________________________________
Name: R. Wayne Cain
Title: Vice President and Treasurer
