RECEIVABLES SALE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 12, 1999
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
EXHIBITS
Exhibit A - Form of Assignment
Exhibit B - Forms of Contracts
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 xxx 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.
* * * * *
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. Xxxxx Xxxx, Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By:_______________________________________________
R. Xxxxx Xxxx, Vice President and Treasurer
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.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of November 12, 1999.
NAVISTAR FINANCIAL CORPORATION
By:________________________________________________
Name: R. Xxxxx Xxxx
Title: Vice President and Treasurer
