POOLING AND SERVICING AGREEMENT
AMONG
NAVISTAR FINANCIAL CORPORATION
SERVICER
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE
DATED AS OF NOVEMBER 1, 2000
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS.........................................................1
SECTION 1.01. Definitions..........................................1
ARTICLE IICONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF CERTIFICATES.......1
SECTION 2.01. Conveyance of Receivables............................1
SECTION 2.02. [Reserved.]..........................................3
SECTION 2.03. Custody of Receivable Files..........................3
SECTION 2.04. Acceptance by Owner Trustee; Limitation on
Transfer of International Purchase Obligations.......3
SECTION 2.05. Representations and Warranties as to the Receivables.4
SECTION 2.06. Repurchase of Receivables Upon Breach of Warranty....4
ARTICLE IIIADMINISTRATION AND SERVICING OF RECEIVABLES.......................5
SECTION 3.01. Duties of the Servicer...............................5
SECTION 3.02. Collection of Receivables Payments...................6
SECTION 3.03. [Reserved.]..........................................6
SECTION 3.04. Realization Upon Liquidating Receivables.............6
SECTION 3.05. Maintenance of Insurance Policies....................6
SECTION 3.06. Maintenance of Security Interests in Vehicles........7
SECTION 3.07. Covenants of the Servicer............................7
SECTION 3.08. Purchase of Receivables Upon Breach of Covenant......7
SECTION 3.09. Total and Supplemental Servicing Fees; Payment of
Certain Expenses by Servicer.........................7
SECTION 3.10. Servicer's Certificate...............................8
SECTION 3.11. Application of Collections...........................8
ARTICLE IV SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;STATEMENTS
TO NOTEHOLDERS AND CERTIFICATEHOLDERS................................9
SECTION 4.01. Annual Statement as to Compliance: Notice of Servicer
Default..............................................9
SECTION 4.02. Annual Independent Accountants' Report...............9
SECTION 4.03. Access to Certain Documentation and Information
Regarding Receivables...............................10
SECTION 4.04. Amendments to Schedule of Receivables...............10
SECTION 4.05. Assignment of Administrative Receivables and Warranty
Receivables.........................................10
SECTION 4.06. Distributions.......................................11
SECTION 4.07. Reserve Account.....................................12
SECTION 4.08. Net Deposits........................................13
SECTION 4.09. Statements to Securityholders.......................13
SECTION 4.10. Information Provided to Rating Agencies.............14
ARTICLE VACCOUNTS; COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES..........15
SECTION 5.01. Establishment of Accounts...........................15
SECTION 5.02. [Reserved.].........................................18
SECTION 5.03. [Reserved.].........................................18
SECTION 5.04. Collections.........................................18
SECTION 5.05. Investment Earnings and Supplemental Servicing Fees.19
SECTION 5.06. Monthly Advances....................................19
SECTION 5.07. Additional Deposits.................................20
ARTICLE VITHE SELLER; REPRESENTATIONS AND WARRANTIESOF THE SELLER AND THE
SERVICER......................................................20
SECTION 6.01. Representations and Warranties of the Seller and the
Servicer............................................20
SECTION 6.02. Liability of Seller.................................22
SECTION 6.03. Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Amendment of Certificate of
Incorporation.......................................22
SECTION 6.04. Limitation on Liability of Seller and Others........23
SECTION 6.05. Seller May Own Securities...........................23
ARTICLE VIILIABILITIES OF SERVICER AND OTHERS...............................23
SECTION 7.01. Liability of Servicer; Indemnities..................23
SECTION 7.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer.......................25
SECTION 7.03. Limitation on Liability of Servicer and Others......25
SECTION 7.04. Delegation of Duties................................26
SECTION 7.05. Servicer Not to Resign..............................26
ARTICLE VIIIDEFAULT.........................................................26
SECTION 8.01. Servicer Defaults...................................26
SECTION 8.02. Consequences of a Servicer Default..................27
SECTION 8.03. Indenture Trustee to Act; Appointment of Successor..28
SECTION 8.04. Notification to Securityholders.....................28
SECTION 8.05. Waiver of Past Defaults.............................28
SECTION 8.06. Repayment of Advances...............................29
ARTICLE IXTERMINATION.......................................................29
SECTION 9.01. Optional Purchase of All Receivables................29
SECTION 9.02. Sale of Assets; Termination.........................29
ARTICLE XMISCELLANEOUS PROVISIONS...........................................31
SECTION 10.01. Amendment...........................................31
SECTION 10.02. Protection of Title to Owner Trust Estate...........33
SECTION 10.03. Notices.............................................34
SECTION 10.04. Governing Law.......................................34
SECTION 10.05. Severability of Provisions..........................35
SECTION 10.06. Assignment..........................................35
SECTION 10.07. Third-Party Beneficiaries...........................35
SECTION 10.08. Separate Counterparts...............................35
SECTION 10.09. Headings and Cross-References.......................35
SECTION 10.10. Assignment to Indenture Trustee.....................35
SECTION 10.11. No Petition Covenants...............................35
SECTION 10.12. Limitation of Liability of the Trustees.............36
SECTION 10.13. Business Day Certificate............................36
--------------------------------------------------------------------------------
EXHIBIT A Form of PSA Assignment
EXHIBIT B Locations of Schedule of Receivables
APPENDIX A Defined Terms and Rules of Construction
APPENDIX B Notice Addresses and Procedures
--------------------------------------------------------------------------------
THIS POOLING AND SERVICING AGREEMENT is made as of November 1, 2000 by
and among Navistar Financial Corporation, a Delaware corporation ("NFC" and,
in its capacity as Servicer hereunder, the "Servicer"), Navistar Financial
Retail Receivables Corporation, a Delaware corporation ("NFRRC" and, in its
capacity as the Seller hereunder, the "Seller"), and Chase Manhattan Bank
USA, National Association, a national banking association, not in its
individual capacity, but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee").
WHEREAS, NFC has sold the Receivables to the Seller pursuant to the
Purchase Agreement.
WHEREAS, the Seller desires to sell the Receivables to the Owner
Trustee in exchange for the Securities and the Servicer desires to perform
the servicing obligations set forth herein for and in consideration of the
fees and other benefits set forth in this Agreement.
WHEREAS, the Seller and the Owner Trustee wish to set forth the terms
pursuant to which the Receivables are to be sold by the Seller to the Owner
Trustee on behalf of the Trust and serviced by the Servicer.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions. Certain capitalized terms used in the
above recitals and in this Agreement are defined in and shall have the
respective meanings assigned them in Part I of Appendix A to this Agreement.
All references herein to "the Agreement" or "this Agreement" are to this
Pooling and Servicing 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 Appendix A, and all references herein
to Articles, Sections and subsections are to Articles, Sections or
subsections of this Agreement unless otherwise specified. The rules of
construction set forth in Part II of such Appendix A shall be applicable to
this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION II.1. Conveyance of Receivables. In consideration of the
Owner Trustee's delivery of the Securities to, or upon the order of, the
Seller, the Seller does hereby enter into this Agreement and agree to fulfill
all of its obligations hereunder and to sell, transfer, assign, set over and
otherwise convey to Chase Manhattan Bank USA, National Association, not in
its individual capacity, but solely as Owner Trustee, under the Trust
Agreement, without recourse, pursuant to an assignment in the form attached
hereto as Exhibit A (the "PSA Assignment"), all right, title and interest of
the Seller in, to and under:
(a) the Retail Notes listed on the Schedule of Receivables and all
monies paid thereon (including Liquidation Proceeds) and due thereunder on
and after the Cutoff Date;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and, to the extent permitted by law, any
accessions thereto which are financed by NFC;
(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 International Purchase Obligations with
respect to the Receivables (subject to the limitations set forth in Section
2.04) and proceeds from any Guaranties of Receivables;
(f) the Purchase Agreement, the PA Assignment, 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); and
(g) any proceeds of the property described in clauses (a), (b), (c)
and (f) above.
It is the intention of the Seller that the transfer and assignment
contemplated by this Section 2.01 shall constitute a sale of the Receivables
from the Seller to the Owner Trustee, on behalf of the Trust, and the
beneficial interest in and title to the assets conveyed pursuant to this
Section 2.01 shall not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy
law. Within two Business Days after the Closing Date, the Seller shall cause
to be deposited into the Collection Account all collections (from whatever
source) on or with respect to the assets conveyed pursuant to this Section
2.01 received by the Seller pursuant to Section 5.07 of the Purchase
Agreement. The Seller and the Servicer intend to treat such transfer and
assignment as a sale for accounting and tax purposes. Notwithstanding the
foregoing, in the event a court of competent jurisdiction determines that
such transfer and assignment did not constitute such a sale or that such
beneficial interest is a part of the Seller's estate, then (i) the Seller
shall be deemed to have granted to the Owner Trustee, on behalf of the Trust,
a first priority perfected security interest in all of the Seller's right
title and interest in, to and under the assets conveyed pursuant to this
Section 2.01, and the Seller hereby grants such security interest and (ii)
the assets conveyed pursuant to this Section 2.01 shall be deemed to include
all rights, powers and options (but none of the obligations, if any) of the
Seller under any agreement or instrument included in the assets conveyed
pursuant to this Section 2.01, including the immediate and continuing right
to claim for, collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the assets conveyed
pursuant to this Section 2.01 and all other monies payable under the
Receivables conveyed pursuant to this Section 2.01, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights, powers and options, to bring Proceedings in the name of
the Seller or otherwise and generally to do and receive anything that the
Seller is or may be entitled to do or receive under or with respect to the
assets conveyed pursuant to this Section 2.01. For purposes of such grant,
this Agreement shall constitute a security agreement under the UCC.
SECTION II.2. [Reserved.]
SECTION II.3. Custody of Receivable Files. In connection with the
sale, transfer and assignment of Receivables to the Seller from NFC pursuant
to the Purchase 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 the
agent of the Seller as Custodian of the following documents or instruments
which shall be constructively delivered to the Owner Trustee, as of the
Closing Date:
(a) the fully executed original of the Retail Note for such
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 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 procedures relating to the individual Receivable, Obligor
or Financed Vehicle.
Pursuant to Section 2.01(f), the rights of the Seller under the Custodian
Agreement are being assigned to the Owner Trustee.
SECTION II.4. Acceptance by Owner Trustee; Limitation on Transfer
of International Purchase Obligations. The Owner Trustee does hereby accept
all consideration conveyed by the Seller pursuant to Section 2.01, and
declares that the Owner Trustee shall hold such consideration upon the trust
set forth in the Trust Agreement for the benefit of Certificateholders,
subject to the terms and conditions of the Trust Agreement, the Indenture and
this Agreement; provided, however, that the Owner Trustee acknowledges and
agrees that (a) the rights pursuant to the International Purchase Obligations
are personal to NFC, and only the proceeds of such rights are being assigned
to the Owner Trustee pursuant to the terms hereof, (b) the Owner Trustee is
not or is not intended to be a third-party beneficiary 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 Owner Trustee. The Owner
Trustee hereby agrees and accepts the appointment and authorization of NFC as
Servicer under Section 3.01. The parties agree that this Agreement, the
Indenture and the Trust Agreement constitute the Further Transfer and
Servicing Agreements for purposes of the Purchase Agreement.
SECTION II.5. Representations and Warranties as to the
Receivables. Pursuant to Section 2.01(f), the Seller assigns to the Owner
Trustee all of its right, title and interest in, to and under the Purchase
Agreement. Such assigned right, title and interest includes the
representations and warranties of NFC made to the Seller pursuant to Section
3.01 of the Purchase Agreement. The Seller hereby represents and warrants to
the Owner Trustee that the Seller has taken no action which would cause such
representations and warranties to be false in any material respect as of the
Closing Date. The Seller further acknowledges that the Owner Trustee is
relying on the representations and warranties of the Seller under this
Agreement and of NFC under the Purchase Agreement in accepting the
Receivables in trust and executing and delivering the Securities. The
foregoing representation and warranty speaks as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables to the
Owner Trustee and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
SECTION II.6. Repurchase of Receivables Upon Breach of Warranty.
Upon discovery by the Seller, the Servicer or either Trustee of a breach of
any of the representations and warranties in Section 3.01 of the Purchase
Agreement (and, with respect to subsection 3.01(j) of the Purchase Agreement,
irrespective of any limitation regarding knowledge of NFC) or in Section 2.05
or Section 6.01 of this Agreement that materially and adversely affects the
interests of the Securityholders in any Receivable, the party discovering
such breach shall give prompt written notice thereof to the others. As of
the second Accounting 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 2.05 or Section 6.01, the Seller shall repurchase
such Receivable from the Owner Trustee on the related Distribution Date. The
Owner Trustee 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 2.06.
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
the obligation of the Warranty Purchaser to repurchase any Receivable as to
which a breach has occurred and is continuing shall, if such repurchase
obligations are fulfilled, constitute the sole remedy against the Seller, the
Servicer or NFC for such breach available to any Interested Party. The
Servicer acknowledges its obligations to repurchase Administrative
Receivables from the Owner Trustee pursuant to Section 3.08 hereof and to
repurchase Warranty Receivables pursuant to Section 5.04 of the Purchase
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION III.1. Duties of the Servicer. The Servicer is hereby
appointed and authorized to act as agent for the Owner of the Receivables and
in such capacity shall manage, service, administer and make collections on
the Receivables with reasonable care, 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. 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 Owner of any
Receivables with respect to distributions, generating federal income tax
information and performing the other duties specified herein. Subject to the
provisions of Section 3.02, 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 Owner of the Receivables, pursuant to
this Section 3.01, to execute and deliver, on behalf of all Interested
Parties, or any of them, 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
Owner of such Receivable or, to the extent necessary, in its own name, a
legal proceeding to enforce a Liquidating Receivable as contemplated by
Section 3.04, to enforce all obligations of NFC and NFRRC, in its capacity as
the Seller or otherwise, under each of the Purchase Agreement and the Further
Transfer and Servicing Agreements 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 Owner of such
Receivable 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 Owner of a Receivable 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. Any Owner of Receivables, 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 other Further Transfer and
Servicing Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this Section
3.01 shall be nonexclusive and shall not be construed to be in derogation of
the retention by the Owner of a Receivable of equivalent authority and rights.
SECTION III.2. 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. Except as
provided in subsection 3.07(c), the Servicer is hereby authorized to grant
extensions, rebates or adjustments on a Receivable without the prior consent
of the Owner of such Receivable 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 Owner of
such Receivable. 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 such Receivable.
SECTION III.3. [Reserved.]
SECTION III.4. 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. The Servicer is authorized
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 International 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 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 with respect to
each Liquidating Receivable at such time as the Receivable becomes a
Liquidating Receivable in accordance with subsection 4.06(b)(i).
SECTION III.5. 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 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.
SECTION III.6. 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 Owner of each Receivable
hereby authorizes the Servicer to re-perfect such security interest as
necessary because of the relocation of a Financed Vehicle or for any other
reason.
SECTION III.7. Covenants of the Servicer. The Servicer hereby makes
the following covenants on which the Owner Trustee, on behalf of the Trust,
is relying in acquiring the Receivables hereunder and issuing the Securities
under the other Further Transfer and Servicing Agreements. The Servicer
covenants that from and after the Closing Date:
(a) Liens in Force. Except as contemplated in this Agreement, the
Servicer shall not release in whole or in part any Financed Vehicle from the
security interest securing such related Receivable;
(b) No Impairment. The Servicer shall do nothing to impair the
rights of NFRRC or any Interested Party in and to such Receivables; and
(c) No Modifications. The Servicer shall not amend or otherwise
modify any such 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 August 31, 2007.
SECTION III.8. Purchase of Receivables Upon Breach of Covenant.
Upon discovery by any of the Seller, the Servicer or any party under the
Further Transfer and Servicing Agreements of a breach of any of the
covenants set forth in Sections 3.06 and 3.07, the party discovering such
breach shall give prompt written notice thereof to the others. 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 Owner thereof any Receivable materially
and adversely affected by such breach as determined by such Owner and, on the
related Distribution Date, the Servicer shall pay the Administrative Purchase
Payment. It is understood and agreed that the obligation of the Servicer to
purchase any Receivable with respect to which such a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Servicer for such breach available to the Seller or any
Interested Party. Neither the Owner Trustee nor the Indenture Trustee shall
have any affirmative duty to conduct any investigation as to the occurrence
of any event requiring the repurchase of any Receivable pursuant to this
Section 3.08.
SECTION III.9. 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 in respect
of the Receivables as provided herein. Subject to any limitations on the
Servicer's liability hereunder, 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 Owner Trustee, any
trustees and independent accountants, taxes imposed on the Servicer, expenses
incurred in connection with distributions and reports to Securityholders and
all other fees and expenses not expressly stated under this Agreement to be
for the account of the Securityholders, but excluding federal, state and
local income and franchise taxes, if any, of the Owner Trustee or any
Securityholder).
SECTION III.10. Servicer's Certificate. Not later than 10:00 a.m.
(Chicago, Illinois time) on each Determination Date, the Servicer shall
deliver to each Trustee and the Rating Agencies a Servicer's Certificate with
respect to the immediately preceding Monthly Period executed by the President
or any Vice President of the Servicer containing all information necessary to
each such party for making the calculations, withdrawals, deposits, transfers
and distributions required by Section 4.06, and all information required to
be provided to Certificateholders and Noteholders under subsection 4.09(a).
Receivables to be purchased by the Servicer under Section 3.08 hereof or
Section 5.04 of the Purchase Agreement as of the last day of any Monthly
Period shall be identified by Receivable number (as set forth in the Schedule
of Receivables). With respect to any Receivables for which the Seller is the
Owner, the Servicer shall deliver to the Seller such accountings relating to
such Receivables and the actions of the Servicer with respect thereto as the
Seller may reasonably request.
SECTION III.11. Application of Collections. For the purposes of this
Agreement, as of each Accounting Date, all collections for the related
Monthly Period with respect to each Receivable shall be applied by the
Servicer as follows:
(a) All payments by or on behalf of the Obligor (excluding
Supplemental Servicing Fees and Investment Earnings) shall be applied (i)
first to reduce Outstanding Monthly Advances, if any, with respect to such
Receivable, as described in Section 5.06, (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; and
(b) 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 IV
SERVICER'S COVENANTS; DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION IV.1. Annual Statement as to Compliance: Notice of Servicer
Default.
(a) The Servicer shall deliver to each Trustee, on or before February
1 of each year, beginning February 1, 2002, 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 Closing
Date 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. A copy
of such certificate may be obtained by any Noteholder or any
Certificateholder by a request in writing to the Indenture Trustee or the
Owner Trustee, respectively, addressed to the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, respectively.
(b) The Servicer shall deliver to each Trustee and to the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than five Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default under Section 8.01. The Seller shall
deliver to each Trustee, the Servicer and the Rating Agencies, promptly after
having obtained knowledge thereof, but in no event later than five Business
Days thereafter, written notice in an Officer's Certificate of any event
which with the giving of notice or lapse of time, or both, would become a
Servicer Default under clause (b) of Section 8.01.
SECTION IV.2. Annual Independent Accountants' Report.
(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
each Trustee and the Rating Agencies, on or before February 1 of each year,
beginning February 1, 2002 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 Closing Date to the date of such
certificate), a report (the "Accountants' Report") addressed to the board of
directors of the Servicer and to each Trustee, 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.
(b) 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.
(c) A copy of the Accountants' Report may be obtained by any
Noteholder or any Certificateholder by a request in writing to the Indenture
Trustee or the Owner Trustee, respectively, addressed to the Corporate Trust
Office of the Indenture Trustee or the Owner Trustee, respectively.
SECTION IV.3. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to each Trustee reasonable
access to the documentation regarding the Receivables. The Servicer also
shall provide reasonable access to the documentation regarding the
Receivables to a Securityholder in cases where such Securityholder is
required by applicable statutes or regulations to review such documentation.
In each case, such access shall be afforded without charge but only upon
reasonable request and during normal business hours at offices of the
Servicer designated by the Servicer. Nothing in this Section 4.03 shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding Obligors, and the failure of
the Servicer to provide access as provided in this Section 4.03 as a result
of such obligation shall not constitute a breach of this Section 4.03.
SECTION IV.4. Amendments to Schedule of Receivables. If the
Servicer, during a Monthly Period, assigns to a Receivable an account number
that differs from the account number previously identifying such Receivable
on the Schedule of Receivables, the Servicer shall deliver to the Seller and
each Trustee on or before the Distribution Date related to such Monthly
Period an amendment to the Schedule of Receivables to report the newly
assigned account number. Each such amendment shall list all new account
numbers assigned to Receivables during such Monthly Period and shall show by
cross reference the prior account numbers identifying such Receivables on the
Schedule of Receivables.
SECTION IV.5. 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, each Trustee shall assign, without recourse,
representation or warranty, to the Servicer or the Warranty Purchaser, as
applicable, all of such Trustee'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 International Purchase Obligations with respect
to such Receivable and proceeds from any Guaranties of such Receivable, (f)
the interests of such Trustee in certain rebates of premiums and other
amounts relating to the Insurance Policies and any document relating thereto
and (g) the rights of such Trustee 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 either Trustee or the
Securityholders with respect thereto. If in any Proceeding it is held that
the Servicer may not enforce a Receivable on the ground that it is not a real
party in interest or a holder entitled to enforce the Receivable, the
applicable Trustee 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 Securityholders.
SECTION IV.6. Distributions.
(a) On or before each Determination Date, with respect to the
preceding Monthly Period and the related Distribution Date, the Servicer
shall calculate the Total Available Amount, Collected Interest, Collected
Principal, the Total Servicing Fee, the Aggregate Class A Noteholders'
Interest Distributable Amount, the Class B Noteholders' Interest
Distributable Amount, the Principal Payment Amount, the Noteholders'
Principal Distributable Amount and all other amounts required to determine
the amounts to be deposited in or paid from each of the Collection Account,
the Note Distribution Account, the Certificate Distribution Account and the
Reserve Account on the next succeeding Distribution Date.
(b) On or before the day preceding each Distribution Date, the
Indenture Trustee shall cause to be made the following withdrawals, deposits,
transfers and distributions in the amounts set forth in the Servicer's
Certificate for such Distribution Date pursuant to Section 3.10:
(i) from the Collection Account to the Servicer, in immediately
available funds, reimbursement of Outstanding Monthly Advances pursuant
to Section 5.06, payments of Liquidation Expenses with respect to
Receivables which became Liquidating Receivables during the related
Monthly Period pursuant to Section 3.04 and any unpaid Liquidation
Expenses from prior periods; and
(ii) 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 Distribution Date and (B) the amount,
if any, by which (I) the sum of the Total Servicing Fee, the Aggregate
Class A Noteholders' Interest Distributable Amount, the Class B
Noteholders' Interest Distributable Amount and the Noteholders'
Principal Distributable Amount exceeds (II) the Available Amount for
such Distribution Date.
(c) Before 12:00 noon, New York City time, on the day preceding each
Distribution Date, the Indenture Trustee (based on the information contained
in the Servicer's Certificate delivered on the related Determination Date
pursuant to Section 3.10) shall make the following distributions from the
Collection Account (after the withdrawals, deposits and transfers specified
in Section 4.06(b) have been made) in the following order of priority:
(i) first, to the Servicer, to the extent of the Total
Available Amount, the Total Servicing Fee;
(ii) second, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clause (c) (i) above), the Aggregate Class A
Noteholders' Interest Distributable Amount;
(iii) third, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (c) (i) and (ii) above), the Class B
Noteholders' Interest Distributable Amount;
(iv) fourth, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (c) (i), (ii) and (iii) above), the
Noteholders' Principal Distributable Amount; and
(v) fifth, to the Reserve Account, any portion of the Total
Available Amount remaining after the distributions described in clauses
(c) (i) through (iv), inclusive, above.
SECTION IV.7. Reserve Account.
(a) The Servicer, for the benefit of the Securityholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Navistar Financial 2000-B Owner Trust Reserve
Account (the "Reserve Account") to include the money and other property
deposited and held therein pursuant to this Section 4.07(a), Section 4.07(c)
and Section 4.06(c). On the Closing Date, the Seller shall deposit the
Reserve Account Initial Deposit into the Reserve Account. The Reserve
Account shall be the property of the Owner Trustee, on behalf of the Trust,
subject to the rights of the Indenture Trustee in the Reserve Account
Property.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits therein or withdrawals
therefrom on such Distribution Date) exceeds the Specified Reserve Account
Balance for such Distribution Date, the Servicer shall instruct the Indenture
Trustee to deposit into the Certificate Distribution Account an amount equal
to any such excess for distribution to the Certificateholders.
(c) If the Servicer, pursuant to Section 5.06, determines on any
Determination Date that it is required to make a Monthly Advance and does not
do so from its own funds, the Servicer shall instruct the Indenture Trustee
to 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 5.06 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.
SECTION IV.8. Net Deposits. At any time that (i) NFC shall be
the Servicer and (ii) the Servicer shall be permitted by Section 5.04 to
remit collections on a basis other than a daily basis, the Servicer, the
Seller, and each Trustee may make any remittances pursuant to this Article IV
net of amounts to be distributed by the applicable recipient to such
remitting party. Nonetheless, each such party shall account for all of the
above described remittances and distributions as if the amounts were
deposited and/or transferred separately.
SECTION IV.9. Statements to Securityholders.
(a) On each Distribution Date, the Owner Trustee shall include with
each distribution to each Certificateholder, and the Indenture Trustee shall
include with each distribution to each Noteholder, a statement (which
statement shall also be provided to the Rating Agencies) based on (subject to
the last sentence of this paragraph (a)) information in the Servicer's
Certificate furnished pursuant to Section 3.10. Each such statement shall
set forth the following information as to the Notes with respect to such
Distribution Date or the preceding Monthly Period, as applicable:
(i) the amount of the distribution allocable to interest on or
with respect to each class of Notes;
(ii) the Aggregate Receivables Balance as of the close of
business on the last day of such Monthly Period;
(iii) the amount of Outstanding Monthly Advances with respect to
all Receivables on such Distribution Date;
(iv) the amount of the Total Servicing Fee paid or payable to
the Servicer with respect to the related Monthly Period;
(v) the amount of Aggregate Losses for the related Monthly
Period;
(vi) the Delinquency Percentage for the related Monthly Period;
(vii) the sum of all Administrative Purchase Payments and all
Warranty Payments made for the related Monthly Period;
(viii) the amount of the distribution allocable to principal
of each class of Notes;
(ix) the Note Principal Balance and the Note Pool Factor for
each class of Notes, each after giving effect to all payments reported
under (viii) above on such date;
(x) the amounts, if any, paid to the Servicer or distributed to
Noteholders from amounts on deposit in the Reserve Account plus amounts
in respect thereof to be distributed to each class of Noteholders as a
prepayment of principal (expressed as a dollar amount per $1,000 of
Initial Principal Balance);
(xi) the amount of the Class A Noteholders' Interest Carryover
Shortfall, the Noteholders' Principal Carryover Shortfall and the Class
B Noteholders' Interest Carryover Shortfall if any, and the change in
such amounts from the preceding Distribution Date; and
(xii) the balance (if any) of the Reserve Account on such date,
after giving effect to distributions, withdrawals, transfers and
deposits made on such date, and the change in such balance from that of
the prior Distribution Date.
Each amount set forth pursuant to clauses (i), (iv), (viii), (x) and (xi)
above shall be expressed as a dollar amount per $1,000 of initial Note
Principal Balance. In lieu of preparing and delivering a separate statement
to Securityholders pursuant to this Section, a Trustee may deliver a copy of
the Servicer's Certificate furnished pursuant to Section 3.10.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Servicer shall prepare and execute and the Indenture Trustee and the Owner
Trustee shall mail to each Person who at any time during such calendar year
shall have been a holder of Notes or Certificates, respectively, and received
any payments thereon, a statement prepared and supplied by the Servicer
containing the amounts set forth in each of clauses (i), (iv), (viii), (x)
and (xi), for such calendar year or, if such Person shall have been a
Securityholder during a portion of such calendar year and received any
payments thereon, for the applicable portion of such year, for the purposes
of such Securityholder's preparation of federal income tax returns.
SECTION IV.10. Information Provided to Rating Agencies. In addition
to receiving any information or documents required to be delivered to any
Rating Agency pursuant to any Basic Document, each Rating Agency may request
in writing to the Servicer, and the Servicer shall deliver, reasonable
additional information necessary to the Rating Agencies to monitor the
Notes. Promptly, but in no event later than five Business Days, after
obtaining knowledge of an Insolvency Event with respect to the Servicer, the
Seller or the Trust, the Servicer shall deliver to each of the Ratings
Agencies notice of such Insolvency Event. Failure by the Servicer to comply
with the terms of this Section 4.10 shall not constitute a "Servicer
Default," an "Event of Default" or a default under any Basic Document.
ARTICLE V
ACCOUNTS; COLLECTIONS, DEPOSITS AND INVESTMENTS; ADVANCES
SECTION V.1. Establishment of Accounts.
(a) (i) The Servicer, for the benefit of the Securityholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Navistar Financial 2000-B Owner Trust Collection
Account (the "Collection Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Securityholders.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Navistar Financial 2000-B Owner Trust Note
Distribution Account (the "Note Distribution Account"), bearing an additional
designation clearly indicating that the funds deposited therein are held for
the benefit of the Noteholders.
(iii) Pursuant to the Trust Agreement, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain in the name
of the Owner Trustee an Eligible Deposit Account known as the Navistar
Financial 2000-B Owner Trust Certificate Distribution Account (the
"Certificate Distribution Account"), bearing an additional designation
clearly indicating that the funds deposited therein are held for the benefit
of the Certificateholders.
(b) (i) Each of the Designated Accounts shall be initially
established with the Indenture Trustee and shall be maintained with the
Indenture Trustee so long as (A) the short-term unsecured debt obligations of
the Indenture Trustee have the Required Deposit Rating or (B) each of the
Designated Accounts are maintained in the corporate trust department of the
Indenture Trustee. All amounts held in such accounts (including amounts, if
any, which the Servicer is required to remit daily to the Collection Account
pursuant to Section 5.04) shall, to the extent permitted by applicable laws,
rules and regulations, be invested, at the written direction of the Servicer,
by such bank or trust company in Eligible Investments; provided, that funds
in the Collection Account in an amount not in excess of 20% of the Aggregate
Receivables Balance as of the preceding Accounting Date may be invested in
investments which have a rating from S& P of "A-1" rather than "A-1+," if such
investments otherwise constitute Eligible Investments. Such written
direction shall constitute certification by the Servicer that any such
investment is authorized by this Section 5.01. Funds deposited in the
Reserve Account shall be invested in Eligible Investments which mature prior
to the next Distribution Date; provided, that such investments may mature on
a later date if the Rating Agency Condition is satisfied with respect
thereto. Investments in Eligible Investments shall be made in the name of
the Indenture Trustee or its nominee, and such investments shall not be sold
or disposed of prior to their maturity. Should the short-term unsecured debt
obligations of the Indenture Trustee (or any other bank or trust company with
which the Designated Accounts are maintained) no longer have the Required
Deposit Rating, then the Servicer shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, upon satisfaction of the
Rating Agency Condition with respect thereto), with the Indenture Trustee's
assistance as necessary, cause the Designated Accounts (A) to be moved to a
bank or trust company, the short-term unsecured debt obligations of which
shall have the Required Deposit Rating, or (B) to be moved to the corporate
trust department of the Indenture Trustee. Investment Earnings on funds
deposited in the Designated Accounts shall be deposited into the Certificate
Distribution Account for distribution to the Certificateholders, except when
the Indenture Trustee is acting as successor Servicer in which case such
Investment Earnings shall be payable to the Indenture Trustee as successor
Servicer. The Indenture Trustee or the other Person holding the Designated
Accounts as provided in this Section 5.01(b)(i) shall be the "Securities
Intermediary." If the Securities Intermediary shall be a Person other than
the Indenture Trustee, the Servicer shall obtain the express agreement of
such Person to the obligations of the Securities Intermediary set forth in
this Section 5.01.
(ii) With respect to the Designated Account Property, the
Securities Intermediary agrees, by its acceptance hereof, that:
(A) The Designated Accounts are accounts to which
Financial Assets will be credited.
(B) 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
Owner Trustee, the Servicer or the Seller, payable to the order
of the Owner Trustee, the Servicer or the Seller or specially
indorsed to the Owner Trustee, the Servicer or the Seller except
to the extent the foregoing have been specially indorsed to the
Securities Intermediary or in blank.
(C) All property delivered to the Securities Intermediary
pursuant to this Agreement will be promptly credited to the
appropriate Designated Account.
(D) 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 New York UCC.
(E) If at any time the Securities Intermediary shall
receive any order from the Indenture Trustee 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 Owner Trustee,
the Servicer, the Seller or any other Person.
(F) The Designated Accounts shall be governed by the laws
of the State of New York, regardless of any provision in any
other agreement. For purposes of the UCC, New York 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
New York.
(G) 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 credited thereto pursuant to
which it has agreed to comply with entitlement orders (as defined
in Section 8-102(a)(8) of the New York 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 Owner Trustee, the Seller, the Servicer or the
Indenture Trustee purporting to limit or condition the obligation
of the Securities Intermediary to comply with entitlement orders
as set forth in Section 5.01(b)(ii)(E) hereof.
(H) Except for the claims and interest of the Indenture
Trustee and of the Owner Trustee 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 Indenture
Trustee, the Servicer and the Owner Trustee 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 Indenture
Trustee at the addresses set forth in Appendix B to this
Agreement.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee (or by the Owner Trustee with the consent of the Indenture
Trustee) to instruct the Indenture Trustee to make withdrawals and payments
from the Designated Accounts for the purpose of permitting the Servicer or
the Owner Trustee to carry out its respective duties hereunder or permitting
the Indenture Trustee to carry out its duties under the Indenture.
(iv) The Indenture Trustee 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). Except as
otherwise provided herein or in the Indenture, the Designated Accounts shall
be under the sole dominion and control of the Indenture Trustee for the
benefit of the Securityholders.
(v) The Servicer shall not direct the Indenture Trustee 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 Indenture Trustee to
make any such investment or sale, if requested by the Indenture Trustee, the
Servicer shall deliver to the Indenture Trustee an Opinion of Counsel,
acceptable to the Indenture Trustee, to such effect.
(c) Pursuant to the Trust Agreement, the Owner Trustee shall possess
all right, title and interest in and to all funds on deposit from time to
time in the Certificate Distribution Account and in all proceeds thereof.
Except as otherwise provided herein or in the Trust Agreement, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee for the benefit of the Certificateholders. If, at any
time, the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Servicer shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall cause the Owner Trustee to transfer any cash and/or any
investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
(d) The Indenture Trustee, the Owner Trustee, the Securities
Intermediary and each other Eligible Deposit Institution with whom a
Designated Account or the Certificate Distribution Account is maintained
waives any right of set-off, counterclaim, security interest or bankers' lien
to which it might otherwise be entitled.
SECTION V.2. [Reserved.]
SECTION V.3. [Reserved.].
SECTION V.4. Collections. The Servicer shall remit to the
Collection Account all payments by or on behalf of the Obligors on the
Receivables, all Insurance Proceeds, all Liquidation Proceeds, proceeds from
any Dealer Liability, proceeds from any International Purchase Obligations
and proceeds from any Guaranties within two Business Days after receipt
thereof. Notwithstanding the foregoing, the Servicer shall not be required
to remit such collections within such two Business Days but may remit
collections received during a Monthly Period to the Collection Account in
immediately available funds on the Business Day immediately preceding the
related Distribution Date but only for so long as (i) NFC is the Servicer,
(ii) (x) the Servicer satisfies the requirements for monthly remittances
established by the Rating Agencies initially rating the Securities, and upon
the satisfaction of such requirements, the Rating Agencies which initially
rated the Securities reaffirm the rating of the Securities at the level at
which they would be rated if collections were remitted within two Business
Days or (y) the short-term unsecured debt obligations of NFC are rated at
least A-1+ by S& P and P-1 by Xxxxx'x Investors Service, Inc., and (iii) a
Servicer Default shall not have occurred and be continuing. The Indenture
Trustee shall not be deemed to have knowledge of any event or circumstance
under clause (iii) of the immediately preceding sentence that would require
remittance within two Business Days by the Servicer to the Collection Account
unless the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or
from Noteholders whose Notes evidence not less than 25% of the Outstanding
Amount of the Voting Notes as of the close of the preceding Distribution Date
or unless a Responsible Officer in the Corporate Trust Office with knowledge
hereof and familiarity herewith has actual knowledge of such event or
circumstance. For purposes of this Article V the phrase "payments by or on
behalf of Obligors" shall mean payments made by Persons other than the
Servicer.
SECTION V.5. Investment Earnings and Supplemental Servicing Fees.
The Servicer shall be entitled to receive all Supplemental Servicing Fees,
and, except as otherwise provided in Section 5.01(b)(i) hereof, the
Certificateholders (via the Certificate Distribution Account) shall be
entitled to receive all Investment Earnings, when and as paid without any
obligation to (a) either Trustee, (b) with respect to the Supplemental
Servicing Fees, the Certificateholders or (c) with respect to the Investment
Earnings, the Servicer, in respect thereof. The Servicer will not have any
obligation to deposit any such amount in any account established hereunder.
To the extent that any such amount shall be held in any account (other than,
with respect to amounts to be distributed to the Certificateholders, the
Certificate Distribution Account) held by either Trustee, or otherwise
established hereunder, such amount will be withdrawn therefrom and paid to
the Servicer or deposited in the Certificate Distribution Account for
distribution to the Certificateholders, as applicable, upon presentation of a
certificate signed by a Responsible Officer of such Person setting forth, in
reasonable detail, the amount of such Supplemental Servicing Fees or such
Investment Earnings, respectively.
SECTION V.6. Monthly Advances. Subject to the following sentence,
as of each Accounting 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 subsection 3.11(a)(i) 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 4.07(c), 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. At such time as 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.
SECTION V.7. Additional Deposits. The Servicer shall deposit in
the Collection Account the aggregate Monthly Advances pursuant to Section
5.06. 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 Distribution Date
related to such Monthly Period.
ARTICLE VI
THE SELLER; REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND THE SERVICER
SECTION VI.1. Representations and Warranties of the Seller and the
Servicer. The Seller and the Servicer each make the following
representations and warranties as to itself on which the Owner Trustee is
relying in acquiring the Receivables hereunder and issuing the Securities
under the other Further Transfer and Servicing Agreements. The following
representations and warranties are made severally by each of the Seller and
the Servicer (for purposes of this Section 6.01, each, a "Party") and speak
as of the Closing Date, but shall survive the sale, transfer and assignment
of the Receivables to the Owner Trustee and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Representations and Warranties as to each Party.
(i) Organization and Good Standing. Such Party 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 (A)
in the case of the Seller, to acquire and own the Receivables and (B)
in the case of the Servicer, to service the Receivables as provided in
this Agreement;
(ii) Due Qualification. Such Party 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
(including, in the case of the Servicer, the servicing of the
Receivables as required by this Agreement) requires or shall require
such qualification;
(iii) Power and Authority. Such Party (A) has the power and
authority to execute and deliver the Further Transfer and Servicing
Agreements to which it is a party (as used in this Section 6.01(a), the
"applicable Further Transfer and Servicing Agreements") and to carry
out the respective terms of such agreements and, (B) in the case of the
Seller, has the power and authority to sell and assign the property to
be sold and assigned to and deposited with the Owner Trustee as part of
the Owner Trust Estate and has duly authorized such sale and assignment
to the Owner Trustee by all necessary corporate action; and the
execution, delivery and performance by such Party of the applicable
Further Transfer and Servicing Agreements have been duly authorized by
such Party by all necessary corporate action;
(iv) Binding Obligations. The applicable Further Transfer and
Servicing Agreements, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of such Party
enforceable against such Party 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;
(v) No Violation. The consummation by such Party of the
transactions contemplated by the applicable Further Transfer and
Servicing Agreements and the fulfillment of the terms of such
agreements by such Party 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 such Party, or any indenture, agreement or
other instrument to which such Party 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 the applicable Further Transfer and
Servicing Agreements, or violate any law or, to such Party's knowledge,
any order, rule or regulation applicable to such Party of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over such Party or any
of its properties; and
(vi) No Proceedings. There are no proceedings or, to such
Party's knowledge, investigations pending or, to such Party's
knowledge, threatened before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over such Party or its properties (i) asserting the
invalidity of the applicable Further Transfer and Servicing Agreements,
any Securities issued pursuant thereto and, in the case of the Seller,
the Custodian Agreement or the Administration Agreement, (ii) seeking
to prevent the issuance of such Securities or the consummation of any
of the transactions contemplated by the applicable Further Transfer and
Servicing Agreements and, in the case of the Seller, the Custodian
Agreement or the Administration Agreement, or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by such Party of its obligations under, or the validity or
enforceability of, such Securities, the applicable Further Transfer and
Servicing Agreements or, in the case of the Seller, the Custodian
Agreement or the Administration Agreement.
(b) Representations and Warranties of the Seller Only.
(i) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Owner
Trustee; immediately prior to the conveyance of the Receivables
pursuant to this Agreement and the PSA Assignment, the Seller had good
and marketable title thereto, free of any Lien (except for any Lien
which may have existed in accessions to the Financed Vehicles not
financed by NFC); and, upon execution and delivery of this Agreement
and the PSA Assignment by the Seller, the Owner Trustee shall have all
of the right, title and interest of the Seller in, to and under the
Purchased Property transferred thereby free of any Lien (except for any
Lien which may exist in accessions to the Financed Vehicles not
financed by NFC);
(ii) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Owner Trustee a first
priority perfected security or ownership interest in the Purchased
Property (to the extent it constitutes Code Collateral) shall have been
made, and the Receivables constitute Code Collateral; and
(iii) Valid Sale. This Agreement and the PSA Assignment
constitute a valid sale, transfer and assignment of the Purchased
Property transferred thereby, enforceable against creditors of and
purchasers from the Seller.
(c) Representations and Warranties of the Servicer Only.
(i) Liquidation Expenses. The amounts defined as "Liquidation
Expenses" are a reasonable estimate of such expenses, reasonably
related to the Servicer's experience for such expenses in servicing
comparable medium and heavy duty truck, bus and trailer receivables.
(ii) Purchase Agreement Representations. The representations
and warranties in Sections 3.01 and 3.02 of the Purchase Agreement are
true as of the Closing Date.
SECTION VI.2. Liability of Seller. The Seller shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Seller.
SECTION VI.3. Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Amendment of Certificate of Incorporation.
(a) Any corporation (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Seller shall be a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock of which is owned directly or
indirectly by NIC, which corporation in any of the foregoing cases executes
an agreement of assumption to perform every obligation of the Seller under
this Agreement, shall be the successor to the Seller under this Agreement
without the execution or filing of any document or any further act on the
part of any of the parties to this Agreement. The Seller shall provide 10
days' prior notice of any merger, consolidation or succession pursuant to
this Section 6.03 to the Rating Agencies.
(b) The Seller hereby agrees that during the term of this Agreement
it shall not amend Articles Third, Fourth, Fifth, Twelfth or Fourteenth of
its Restated Certificate of Incorporation without obtaining the prior written
consent of the Rating Agencies or without obtaining the prior written consent
of Noteholders whose Notes evidence not less than a majority of the
Outstanding Amount of the Voting Notes as of the close of the preceding
Distribution Date and the prior written consent of the Holders of
Certificates evidencing not less than a majority of the ownership interest in
the Trust as of the close of the preceding Distribution Date.
SECTION VI.4. Limitation on Liability of Seller and Others. The
Seller and any director or officer or employee or agent of the Seller may
rely in good faith on the advice of counsel or on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement. The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its obligations as Seller of the Receivables under this
Agreement and that in its opinion may involve it in any expense or liability.
SECTION VI.5. Seller May Own Securities. Each of the Seller and
any Person controlling, controlled by or under common control with the Seller
may in its individual or any other capacity become the owner or pledgee of
Securities with the same rights as it would have if it were not the Seller or
an Affiliate thereof except as otherwise specifically provided herein.
Except as otherwise provided herein, Securities so owned by or pledged to the
Seller or such controlling or commonly controlled Person shall have an equal
and proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of such Securities.
ARTICLE VII
LIABILITIES OF SERVICER AND OTHERS
SECTION VII.1. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this Agreement
only to the extent of the obligations in this Agreement specifically
undertaken by the Servicer. Such obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold harmless the
Indenture Trustee, the Owner Trustee, the Owner Trust Estate and the
Securityholders from and against any and all costs, expenses, losses,
damages, claims and liabilities arising out of or resulting from the
use, ownership or operation by the Servicer or any Affiliate thereof of
any Financed Vehicle;
(ii) The Servicer shall indemnify, defend and hold harmless the
Owner Trustee and the Indenture Trustee from and against any taxes that
may at any time be asserted against any such Person with respect to the
transactions contemplated in this Agreement, including any sales, gross
receipts, general corporation, Illinois corporate income, tangible
personal property, privilege or license taxes (but not including any
taxes asserted with respect to, and as of the date of, the sale of the
Receivables to the Owner Trustee or the issuance and original sale of
the Securities, or asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of
distributions on the Securities, or any fees or other compensation
payable to any such Person) and costs and expenses in defending against
the same;
(iii) The Servicer shall indemnify, defend and hold harmless, the
Owner Trustee, the Indenture Trustee and the Securityholders from and
against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage,
or liability arose out of, or was imposed upon such Trustee or the
Securityholders through the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under this
Agreement and any other Transfer and Servicing Agreements or by reason
of reckless disregard of its obligations and duties under any of the
Transfer and Servicing Agreements; and
(iv) The Servicer (other than the Indenture Trustee in its
capacity as successor Servicer pursuant to Section 8.02 hereof) shall
indemnify, defend and hold harmless each Trustee and their respective
agents, officers, directors and servants, from and against all costs,
expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with (x) in the case of the Owner Trustee, the
Indenture Trustee's performance of its duties under the Basic
Documents, (y) in the case of the Indenture Trustee, the Owner
Trustee's performance of its duties under the Basic Documents or (z)
the acceptance, administration or performance by, or action or inaction
of, the applicable Trustee of the trusts and duties contained in this
Agreement, the Basic Documents, the Indenture (in the case of the
Indenture Trustee), including the administration of the Trust Estate,
and the Trust Agreement (in the case of the Owner Trustee), including
the administration of the Owner Trust Estate, except in each case to
the extent that such cost, expense, loss, claim, damage or liability:
(A) is due to the willful misfeasance, bad faith or negligence (except
for errors in judgment) of the Person seeking to be indemnified, (B) to
the extent otherwise payable to the Indenture Trustee, arises from the
Indenture Trustee's breach of any of its representations or warranties
in Section 6.13 of the Indenture or (C) to the extent otherwise payable
to the Owner Trustee, arises from the Owner Trustee's breach of any of
its representations or warranties set forth in Section 6.6 of the Trust
Agreement.
(b) Indemnification under this Section 7.01 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee or the
termination of this Agreement and shall include reasonable fees and expenses
of counsel and expenses of litigation. If the Servicer has made any
indemnity payments pursuant to this Section 7.01 and the recipient thereafter
collects any of such amounts from others, the recipient shall promptly repay
such amounts collected to the Servicer, without interest.
SECTION VII.2. 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 NIC and which is otherwise servicing the
Seller's receivables, which corporation in any of the foregoing cases
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. The Servicer shall provide
notice of any merger, consolidation or succession pursuant to this Section
7.02 to the Rating Agencies.
SECTION VII.3. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Owner
Trustee or the Securityholders, except as specifically provided in this
Agreement, for any action taken or for refraining from the taking of any
action pursuant to the Further Transfer and Servicing Agreements or for
errors in judgment; provided, however, that this provision shall not protect
the Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence (except
errors in judgment) in the performance of duties or by reason of reckless
disregard of obligations and duties under the Further Transfer and Servicing
Agreements. The Servicer and any director, officer or employee or agent of
the Servicer may rely in good faith on the advice of counsel or on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
(b) [Reserved.]
(c) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its duties to service the Receivables in accordance with
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement
and the rights and duties of the parties to this Agreement and the interests
of the Securityholders under this Agreement and the Noteholders and (to the
extent expressly provided therein) the Certificateholders under the Indenture
and the interests of the Certificateholders under the Trust Agreement. In
such event, the legal expenses and costs for such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Owner
Trustee payable from the Owner Trust Estate and the Servicer shall be
entitled to be reimbursed therefor.
(d) The Applicable Trustee shall distribute out of the Collection
Account on a Distribution Date any amounts permitted for reimbursement
pursuant to subsection 7.03(c) which have not been previously reimbursed
after any deposit to the Reserve Account pursuant to Section 4.06(c)(v) and
before any distribution to the Certificate Distribution Account pursuant to
Section 4.07(b); provided, however, that the Applicable Trustee shall not
distribute such amounts if the amount on deposit in the Reserve Account
(after giving effect to all deposits and withdrawals pursuant to Sections
4.06(b) and (c) and Section 4.07(c), on such Distribution Date) is greater
than zero but less than the Specified Reserve Account Balance for such
Distribution Date.
SECTION VII.4. 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 NIC. 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.
SECTION VII.5. Servicer Not to Resign. Subject to the provisions of
Section 8.02, 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 each Trustee. No such resignation shall become effective until
the Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
8.02.
ARTICLE VIII
DEFAULT
SECTION VIII.1. Servicer Defaults. Each of the following shall
constitute a "Servicer Default:"
(a) any failure by the Servicer to deliver to the Indenture Trustee
for deposit in any of the Designated Accounts or to the Owner Trustee for
deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions therefrom,
which failure continues unremedied for a period of five Business Days after
written notice is received by the Servicer from the Applicable Trustee or
after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly observe
or perform in any material respect any other covenants or agreements of the
Seller or the Servicer set forth in the Purchase Agreement, this Agreement or
any of the other Further Transfer and Servicing Agreements which failure (i)
materially and adversely affects the rights of Securityholders, and (ii)
continues unremedied for a period of 60 days after 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 either Trustee, or to
the Seller or the Servicer, as applicable, and to either Trustee by
Noteholders whose Notes evidence not less than 25% of the Outstanding Amount
of the Voting Notes as of the close of the preceding Distribution Date (or,
if the Notes have been paid in full and the Indenture has been discharged in
accordance with its terms, by Certificateholders whose Certificates evidence
not less than 25% of the ownership interest in the Trust as of the close of
the preceding Distribution Date);
(c) 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; or
(d) 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.
SECTION VIII.2. Consequences of a Servicer Default. If a Servicer
Default shall occur and be continuing, either the Indenture Trustee or the
Noteholders whose Notes evidence not less than a majority of the Outstanding
Amount of the Voting Notes as of the close of the preceding Distribution Date
(or, if the Notes have been paid in full and the Indenture has been
discharged in accordance with its terms, by the Owner Trustee or the Holders
of Certificates evidencing not less than a majority of the ownership interest
in the Trust as of the close of the preceding Distribution Date) by notice
then given in writing to the Servicer and the Owner Trustee (and to the
Indenture Trustee if given by the Securityholders) may, in addition to other
rights and remedies available in a court of law or equity to damages,
injunctive relief and specific performance, terminate all of the rights and
obligations of the Servicer under this Agreement, including the termination
of all sub-servicing agreements, without cost. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer
under this Agreement, whether with respect to the Securities or the
Receivables or otherwise, shall pass to and be vested in the Indenture
Trustee pursuant to and under this Section 8.02. The Indenture Trustee 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 either
Trustee in effecting the termination of the responsibilities and rights of
the Servicer under this Agreement, including the transfer to either Trustee
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, the Reserve Account, the Note
Distribution Account or the Certificate Distribution 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 8.02
which terminates the obligation and rights of the Servicer under this
Agreement.
SECTION VIII.3. Indenture Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination pursuant
to Section 8.02, the Indenture Trustee 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, and shall be
subject to all the responsibilities, restrictions, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions of 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 Indenture Trustee
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 and shall
be entitled to Investment Earnings as set forth in Section 5.01(b)(i)
hereof. Notwithstanding the above, the Indenture Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint, or
petition a court of competent jurisdiction to appoint, a successor (i) having
a net worth of not less than $100,000,000 and (ii) whose regular business
includes the servicing of medium and heavy duty truck, bus and trailer
receivables, as the successor to the Servicer under this Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer under this Agreement. In connection with such appointment
and assumption, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on Receivables as it and such
successor shall agree; provided, however, that no such compensation shall be
in excess of that permitted the Servicer under this Agreement. The Indenture
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
SECTION VIII.4. Notification to Securityholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to
this Article VIII, the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and the Rating Agencies and the Owner Trustee
shall give prompt written notice thereof to the Certificateholders.
SECTION VIII.5. Waiver of Past Defaults. Noteholders whose Notes
evidence not less than a majority of the Outstanding Amount of the Voting
Notes as of the close of the preceding Distribution Date (or, if all of the
Notes have been paid in full and the Indenture has been discharged in
accordance with its terms, Holders of Certificates evidencing not less than a
majority of the ownership interest in the Trust as of the close of the
preceding Distribution Date) may, on behalf of all Securityholders, waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences, except a default in making any required deposits to or
payments from any of the accounts in accordance with this Agreement. Upon
any such waiver of a past default, such default shall cease to exist, and any
Servicer Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION VIII.6. Repayment of Advances. If the identity of the
Servicer shall change, the predecessor Servicer shall be entitled to receive,
to the extent of available funds, reimbursement for Outstanding Monthly
Advances pursuant to Section 5.06 in the manner specified in Section 4.06,
with respect to all Monthly Advances made by such predecessor Servicer.
ARTICLE IX
TERMINATION
SECTION IX.1. Optional Purchase of All Receivables. On the last
day of any Monthly Period as of which (i) the Aggregate Receivables Balance
is 10% or less of the Initial Aggregate Receivables Balance and (ii) the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes have been paid
in full, the Servicer shall have the option to purchase the assets of the
Owner Trust Estate other than the Designated Accounts and the Certificate
Distribution Account. If the Servicer's long term unsecured debt rating from
Xxxxx'x Investors Service, Inc. is equal to or higher than Baa3 at the time
that it seeks to exercise such option, then to exercise such option, the
Servicer shall deposit in the Collection Account an amount equal to the
aggregate Administrative Purchase Payments for the Receivables (including
Liquidating Receivables), plus the appraised value of any such other property
contained in the Owner Trust Estate (less the Liquidation Expenses to be
incurred in connection with the recovery thereof), such value to be
determined by an appraiser mutually agreed upon by the Servicer and each
Trustee. If the Servicer's long term unsecured debt rating from Xxxxx'x
Investors Service, Inc. is less than Baa3 at the time that it seeks to
exercise such option, then to exercise such option, the Servicer shall
deposit in the Collection Account an amount equal to the appraised value of
the Receivables (including Liquidating Receivables), plus the appraised value
of any such other property contained in the Owner Trust Estate (less the
Liquidation Expenses to be incurred in connection with the recovery thereof),
such values to be determined by an appraiser mutually agreed upon by the
Servicer and each Trustee; provided, that such amount (when added to any
funds then on deposit in the Designated Accounts) must be at least equal to
the aggregate Redemption Price of the outstanding Notes to be redeemed with
such proceeds for the Distribution Date related to the Monthly Period in
which such option is exercised. Thereupon, the Servicer shall succeed to all
interests in and to the Owner Trust Estate (other than the Designated
Accounts and the Certificate Distribution Account).
SECTION IX.2. Sale of Assets; Termination.
(a) Upon any sale or other disposition of the assets of the Owner
Trust Estate pursuant to Article V of the Indenture (an "Event of Default
Sale"), the Servicer shall instruct the Applicable Trustee to deposit the
proceeds from such disposition after all payments and reserves therefrom have
been made or the amount specified in clause SECOND of Section 5.4(b) of the
Indenture (the "Event of Default Proceeds") in the Collection Account. On
the day preceding the Distribution Date on which the Event of Default
Proceeds are deposited in the Collection Account (or, if such proceeds are
not so deposited on the day preceding a Distribution Date, on the day
preceding the Distribution Date immediately following such deposit), the
Servicer shall instruct the Applicable Trustee to make the following deposits
(after the application on the day preceding such Distribution Date of the
Available Amount and funds on deposit in the Reserve Account pursuant to
Sections 4.06 and 4.07) from the Event of Default Proceeds and any funds
remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein as described in the following sentence) in the
following priority:
(i) to the Note Distribution Account, any portion of the
Aggregate Class A Noteholders' Interest Distributable Amount not
otherwise deposited into the Note Distribution Account on the day
preceding such Distribution Date for payment of interest on the Class A
Notes;
(ii) if such Event of Default Sale results from the occurrence
of an Event of Default specified in Section 5.1(a), (b) or (c) of the
Indenture, to the Note Distribution Account, an amount equal to the
Note Principal Balance of the Class A Notes (after giving effect to the
reduction in the Aggregate Note Principal Balance to result from the
deposits made in the Note Distribution Account on the day preceding
such Distribution Date and on the day preceding each prior Distribution
Date);
(iii) to the Note Distribution Account, any portion of the Class
B Noteholders' Interest Distributable Amount not otherwise deposited
into the Note Distribution Account on the day preceding such
Distribution Date;
(iv) if such Event of Default Sale does not result from the
circumstances specified in Section 9.02(a)(ii), to the Note
Distribution Account, an amount equal to the Note Principal Balance of
the Class A Notes (after giving effect to the reduction in the
Aggregate Note Principal Balance to result from the deposits made in
the Note Distribution Account on the day preceding such Distribution
Date and on the day preceding each prior Distribution Date); and
(v) to the Note Distribution Account, an amount equal to the
Note Principal Balance of the Class B Notes (after giving effect to the
reduction therein to result from the deposits made in the Note
Distribution Account on the day preceding such Distribution Date and on
the day preceding each prior Distribution Date).
Subject to Section 5.01(b), any investments on deposit in the Reserve Account
which shall not mature on or before the day preceding such Distribution Date
shall be sold by the Indenture Trustee at such time as shall result in the
Indenture Trustee receiving the proceeds from such sale not later than the
day immediately preceding such Distribution Date. Any Event of Default
Proceeds remaining after the deposits described above shall be deposited into
the Certificate Distribution Account for distribution to the
Certificateholders.
(b) Notice of any termination of the Trust shall be given by the
Servicer to each Trustee as soon as practicable after the Servicer has
received notice thereof.
(c) Following the satisfaction and discharge of the Indenture with
respect to the Notes, and the payment in full of the principal and interest
on the Notes, the Certificateholders shall succeed to the rights of the
Noteholders hereunder and the Owner Trustee shall succeed to the rights of,
and assume the obligations of, the Indenture Trustee pursuant to this
Agreement (subject to the continuing obligations of the Indenture Trustee set
forth in Section 4.4 of the Indenture).
(d) After payment to each Trustee, the Noteholders and the Servicer
of all amounts required to be paid under this Agreement and the Indenture,
any amounts on deposit in the Reserve Account and the Collection Account
(after all other distributions required to be made from such accounts have
been made) shall be deposited into the Certificate Distribution Account for
distribution to the Certificateholders and any other assets remaining in the
Owner Trust Estate shall be distributed to the Certificate Distribution
Account for distribution to the Certificateholders.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and the
Owner Trustee with the consent of the Indenture Trustee, but without the
consent of any of the Securityholders, (i) to cure any ambiguity, (ii) to
correct or supplement any provision in this Agreement that may be defective
or inconsistent with any other provision in this Agreement or any other Basic
Document, (iii) to add or supplement any credit enhancement for the benefit
of the Noteholders of any class or the Certificateholders provided that if
any such addition shall affect any class of Noteholders or the
Certificateholders differently than any other class of Noteholders or the
Certificateholders, respectively, then such addition shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the
interests of any class of Noteholders or the Certificateholders, (iv) add to
the covenants, restrictions or obligations of the Seller, the Servicer, or
either Trustee or (v) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the
Securityholders.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Owner Trustee with the consent of the Indenture
Trustee, the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Voting Notes as of the close of the
preceding Distribution Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the ownership interest in
the Trust as of the close of the preceding Distribution Date (which consents,
whether given pursuant to this Section 10.01 or pursuant to any other
provision of this Agreement, shall be conclusive and binding on such Person
and on all future holders of such Notes or Certificates and of any Notes or
Certificates issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the Notes
or Certificates) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Securityholders; provided, however,
that no such amendment shall (i)(a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any
Security, the Interest Rate for any class of Notes or the Specified Reserve
Account Balance or (b) reduce the aforesaid percentage required to consent to
any such amendment, without the consent of the holders of all Securities then
outstanding or (ii) amend any provision of this Agreement (including Section
10.06) which requires actions taken under such provision to have the consent
of Noteholders whose Notes evidence greater than a majority of the
Outstanding Amount of the Voting Notes as of the preceding Distribution Date
or of the Holders of Certificates evidencing greater than a majority of the
ownership interest in the Trust as of the preceding Distribution Date, in
each case without the consent of the Indenture Trustee and the numbers of
Securityholders described in such Section.
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification to the Rating Agencies
of the substance of such amendment or consent as provided to the Indenture
Trustee.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, and the Indenture Trustee
shall furnish written notification to each Noteholder of the substance of
such amendment or consent as provided to the Indenture Trustee.
(e) It shall not be necessary for the consent of Securityholders
pursuant to subsection 10.01(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and any other consents of Securityholders provided for in this Agreement)
and of evidencing the authorization of the execution thereof by
Securityholders shall be subject to such reasonable requirements as either
Trustee may prescribe, including the establishment of record dates pursuant
to paragraph number 3 of the Note Depository Agreement.
(f) Prior to the execution of any amendment to this Agreement, each
Trustee shall be entitled to receive and rely upon the Opinion of Counsel
referred to in subsection 10.02(i) and an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. Each Trustee may, but shall not be obligated to, enter
into any such amendment which affects such Trustee's own rights, duties or
immunities under this Agreement or otherwise.
(g) Each of NFC and the Seller agrees that such Person shall not
amend or agree to any amendment of the Purchase Agreement unless such
amendment would be permissible under the terms of this Section 10.01 as if
this Section 10.01 were contained in the Purchase Agreement.
SECTION X.2. Protection of Title to Owner Trust Estate.
(a) The Seller or the Servicer or both 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 the
Securityholders and the Owner Trustee under this Agreement in the Receivables
and the Indenture Trustee's interest in the Receivables under the Indenture.
The Seller or the Servicer or both shall deliver (or cause to be delivered)
to the Owner Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given each Trustee at least 60 days
prior written notice thereof.
(c) Each of the Seller and the Servicer shall give each Trustee 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. The Servicer shall at all times maintain each office from which
it services Receivables and its principal executive office within the United
States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and
extensions of any scheduled payments made not less than 45 days prior
thereto, and (ii) reconciliation between payments or recoveries on (or with
respect to) each Receivable and the amounts from time to time deposited in
the Collection Account, the Note Distribution Account and the Certificate
Distribution Account.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Owner Trustee, the Servicer's master computer records (including any back-up
archives) that refer to any Receivable indicate clearly that the Receivable
is owned by the Owner Trustee. Indication of the Owner Trustee's ownership
of a Receivable shall be deleted from or modified on the Servicer's computer
systems when, and only when, the Receivable has been paid in full or
repurchased by the Seller or purchased by the Servicer.
(f) If at any time the Seller or the Servicer proposes to sell, grant
a security interest in, or otherwise transfer any interest in medium and
heavy duty truck, bus and trailer receivables to any prospective purchaser,
lender or other transferee, the Servicer shall give to such prospective
purchaser, lender or other transferee computer tapes, records or print-outs
(including any restored from back-up archives) that, if they refer in any
manner whatsoever to any Receivable, indicate clearly that such Receivable
has been sold and is owned by the Owner Trustee unless such Receivable has
been paid in full or repurchased by the Seller or purchased by the Servicer.
(g) The Servicer shall permit each Trustee and their respective
agents at any time to inspect, audit and make copies of and abstracts from
the Servicer's records regarding any Receivables then or previously included
in the Owner Trust Estate.
(h) The Servicer shall furnish to each Trustee at any time upon
request a list of all Receivables then held as part of the Owner Trust
Estate, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Owner Trust Estate. Upon
request, the Servicer shall furnish a copy of any such list to the Seller.
Each Trustee and the Seller shall hold any such list and the Schedule of
Receivables for examination by interested parties during normal business
hours at their respective offices located at the addresses set forth in
Section 10.03.
(i) The Servicer shall deliver to each Trustee promptly after the
execution and delivery of this Agreement and of each amendment thereto, an
Opinion of Counsel either (a) stating that, in the opinion of such counsel,
all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of each
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or
(b) stating that, in the opinion of such counsel, no such action is necessary
to preserve and protect such interest.
(j) To the extent required by law, the Seller shall cause the Notes
to be registered with the Securities and Exchange Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION X.3. Notices. All demands, notices and communications
upon or to the Seller, the Servicer, either Trustee or the Rating Agencies
under this Agreement shall be delivered as specified in Appendix B hereto.
SECTION X.4. Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement 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; provided, however that (i) the
duties and immunities of the Owner Trustee hereunder shall be governed by the
laws of the State of Delaware and (ii) the rights and remedies of the
Indenture Trustee, and the provisions contained in Section 5.01(b)(ii) shall
be governed by the laws of the State of New York.
SECTION X.5. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms 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 the Securities or the rights of the holders thereof.
SECTION X.6. Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Seller
without the prior written consent of Noteholders whose Notes evidence not
less than 66% of the Outstanding Amount of the Voting Notes as of the close
of the preceding Distribution Date and of Holders of Certificates evidencing
not less than 66% of the ownership interest in the Trust as of the close of
the preceding Distribution Date. The Seller shall provide notice of any such
assignment to the Rating Agencies.
SECTION X.7. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the
Securityholders and the Trustees and their respective successors and
permitted assigns. Except as otherwise provided in Section 7.01 or in this
Article X, no other Person shall have any right or obligation hereunder.
SECTION X.8. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION X.9. Headings and Cross-References. The various headings
in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement.
SECTION X.10. Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Owner Trustee on behalf of the Trust, to the
Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders and (only to the extent expressly provided therein) the
Certificateholders of all right, title and interest of the Owner Trustee in,
to and under the Purchased Property and/or the assignment of any or all of
the Owner Trustee's rights and obligations hereunder to the Indenture Trustee.
SECTION X.11. No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior
to the date which is one year and one day after the final distribution with
respect to the Securities to the Note Distribution Account or the Certificate
Distribution Account, as applicable, acquiesce, petition or otherwise invoke
or cause the Owner Trustee to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Trust, the Owner Trust Estate or the Owner Trustee on behalf of the Trust,
under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Owner Trustee, on behalf of the Trust, or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust, the Owner Trust Estate or the Owner
Trustee, on behalf of the Trust.
SECTION X.12. Limitation of Liability of the Trustees.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The Bank of New York not in
its individual capacity but solely as Indenture Trustee and in no event shall
The Bank of New York have any liability for the representations, warranties,
covenants, agreements or other obligations of the Owner Trustee hereunder or
in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Owner
Trust Estate.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Chase Manhattan Bank USA, National Association
not in its individual capacity but solely in its capacity as Owner Trustee of
the Trust under the Trust Agreement and in no event shall Chase Manhattan
Bank USA, National Association in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Trust have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Owner Trustee hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Owner Trust Estate.
For all purposes of this Agreement, in the performance of its duties or
obligations hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI of the Trust
Agreement.
SECTION X.13. Business Day Certificate.
On the Closing Date (with respect to the remainder of calendar
year 2000) and thereafter, within 15 days prior to the end of each calendar
year while this Agreement remains in effect (with respect to the next
succeeding calendar year), the Servicer shall deliver to either Trustee,
following receipt of a written request by such Trustee, an Officers'
Certificate specifying the days on which banking institutions in Chicago,
Illinois are authorized or obligated by law or executive order to be closed.
* * * * *
--------------------------------------------------------------------------------
POOLING SERVICE 2000B.DOC
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee on
behalf of the Trust
By:/s/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By:/s/R. Xxxxx Xxxx
R. Xxxxx Xxxx
Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION, as
Servicer
By:/s/R. Xxxxx Xxxx
R. Xxxxx Xxxx
Vice President and Treasurer
Acknowledged and Accepted:
THE BANK OF NEW YORK, not in
its individual capacity but solely as
Indenture Trustee
By: /s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Assistant Treasurer
--------------------------------------------------------------------------------
EXHIBIT A
Form of PSA Assignment
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Pooling and Servicing
Agreement"), among Navistar Financial Corporation, a Delaware corporation
("NFC"), Navistar Financial Retail Receivables Corporation, a Delaware
corporation (the "Seller") and Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement (the "Owner Trustee"), the Seller does hereby sell,
assign, transfer and otherwise convey unto the Owner Trustee, without
recourse, all right, title and interest of the Seller in, to and under (i)
the Receivables (having an aggregate Initial Receivables Balance of
$764,710,097.53) and all monies paid thereon (including Liquidation Proceeds)
and due thereunder on and after the Cutoff Date; (ii) the security interests
in the Financed Vehicles granted by Obligors pursuant to the Receivables and,
to the extent permitted by law, any accessions thereto which are financed by
NFC; (iii) the benefits of any lease assignments with respect to the related
Financed Vehicles; (iv) any proceeds from any Insurance Policies with respect
to the Receivables; (v) any proceeds from Dealer Liability with respect to
the Receivables, proceeds from any International Purchase Obligations with
respect to the Receivables (subject to the limitations set forth in Section
2.04 of the Pooling and Servicing Agreement) and proceeds from any Guaranties
of Receivables; (vi) the Purchase Agreement, the assignment pursuant to
Section 2.01 of the Purchase 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) and (vii) any proceeds of the
property described in clauses (i), (ii), (iii) and (vi) above.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Owner Trustee of any obligation of the undersigned to
the Obligors, Dealers, insurers or any other Person in connection with the
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This PSA Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
--------------------------------------------------------------------------------
POOLING SERVICE 2000B.DOC
IN WITNESS WHEREOF, the undersigned has caused this PSA Assignment to
be duly executed as of November 1, 2000.
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By:/s/R. Xxxxx Xxxx
R. Xxxxx Xxxx
Vice President and Treasurer
--------------------------------------------------------------------------------
POOLING SERVICE 2000B.DOC
EXHIBIT B
Locations of Schedule of Receivables
The Schedule of Receivables is
on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. Navistar Financial Corporation
4. Navistar Financial Retail Receivables Corporation
--------------------------------------------------------------------------------
APPENDIX A
PART I - DEFINITIONS
All terms defined in this Appendix shall have the defined meanings when
used in the Basic Documents, unless otherwise defined therein.
Accountants' Report: The report described in Section 4.02 of the
Pooling and Servicing Agreement.
Accounting Date: With respect to a Distribution Date, the last day of
the related Monthly Period, or, with respect to any initial Distribution Date
that occurs in the same calendar month as the Closing Date, at the close of
business on the Closing Date.
Act: An Act as specified in Section 11.3(a) of the Indenture.
Actual Payment: With respect to a Distribution 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
Distribution Date occurring after the date such Receivable is transferred to
the Owner Trustee, 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.
Administration Agreement: That certain Administration Agreement, dated
as of November 1, 2000 among NFC, as Administrator, Chase Manhattan Bank USA,
National Association, as Owner Trustee, and the Indenture Trustee, as amended
and supplemented from time to time.
Administrative Purchase Payment: With respect to a Distribution 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 5.06 of the Pooling and Servicing 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: A Receivable which the Servicer is required
to purchase as of an Accounting Date pursuant to Section 3.08 of the Pooling
and Servicing Agreement or which the Servicer has elected to purchase as of
an Accounting Date pursuant to Section 9.01 of the Pooling and Servicing
Agreement.
Administrator: NFC or any successor Administrator under the
Administration Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agency Office: The office of the Owner Trustee maintained pursuant
Section 3.2 of the Indenture.
Aggregate Losses: 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 Class A Noteholders' Interest Distributable Amount: With
respect to any Distribution Date, the sum of the Class A Noteholders'
Interest Distributable Amounts for all classes of Class A Notes and the Class
A Noteholders' Interest Carryover Shortfall as of the preceding Distribution
Date.
Aggregate Note Principal Balance: With respect to the close of a
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
Aggregate Receivables Balance: As of any date, the sum of the
Receivable Balances of all outstanding Receivables (other than Liquidating
Receivables).
Annual Percentage Rate: With respect to a Receivable, the annual rate
of finance charges stated in such Receivable.
Applicable Trustee: So long as the Aggregate Note Principal Balance is
greater than zero and the Indenture has not been discharged in accordance
with its terms, the Indenture Trustee, and thereafter, the Owner Trustee.
Authorized Officer: With respect to the Owner Trustee, acting not in
its individual capacity but solely in its capacity as Owner Trustee under the
Trust Agreement, any officer of the Owner Trustee who is authorized to act
for the Owner Trustee in matters relating to the Owner Trust Estate and who
is identified on the list of Authorized Officers delivered by the Owner
Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and, so long as the
Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator
in matters relating to the Owner Trust Estate and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified
on the list of Authorized Officers delivered by the Administrator to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
Available Amount: With respect to a Distribution Date, the sum of the
Collected Interest and the Collected Principal for such Distribution Date.
Basic Documents: The Trust Agreement, the Purchase Agreement, the PA
Assignment, the Pooling and Servicing Agreement, the PSA Assignment, the
Custodian Agreement, the Administration Agreement, the Indenture, the Note
Depository Agreement and the other documents and certificates delivered in
connection therewith.
Basic Servicing Fee: 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: 1.0% per annum.
Book-Entry Notes: A beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or any other day
on which banking institutions in New York, New York or Chicago, Illinois may,
or are required to, remain closed.
Certificate: Any one of the certificates executed by the Owner Trustee
and authenticated by or on behalf of the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
Certificate Distribution Account: The account designated as such,
established and maintained pursuant to Section 5.1(a) of the Trust Agreement.
Certificate Register: The register of Certificates specified in
Section 3.4 of the Trust Agreement.
Certificate Registrar: The registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4(a) of the Trust Agreement.
Certificated Security: As of any date, has the meaning given to such
term under the applicable UCC in effect on such date.
Certificateholder: A Person in whose name a Certificate is registered
pursuant to the terms of the Trust Agreement.
Class A Noteholders' Interest Carryover Shortfall: As of the close of
any Distribution Date, the excess of the Aggregate Class A Noteholders'
Interest Distributable Amount for such Distribution Date over the amount that
was actually deposited in the Note Distribution Account on the day preceding
such current Distribution Date in respect of interest on the Class A Notes.
Class A Noteholders' Interest Distributable Amount: (a) With respect to
the Class A-1 Notes and any Distribution Date, the product of (1) the
outstanding principal balance of the Class A-1 Notes on the preceding
Distribution Date after giving effect to all payments of principal in respect
of the Class A-1 Notes on such preceding Distribution Date (or, in the case
of the first Distribution Date, the outstanding principal balance on the
Closing Date) and (2) the product of the Interest Rate for the Class A-1
Notes and a fraction, the numerator of which is the actual number of days
elapsed from the most recent Distribution Date on which interest has been
paid (or the Closing Date, in the case of the initial period) to but
excluding the current Distribution Date, and the denominator of which is 360,
and (b) with respect to the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes and any Distribution Date, the product of (1) the outstanding
principal balance of such class of Class A Notes on the preceding
Distribution Date after giving effect to all payments of principal in respect
of such class of Class A Notes on such preceding Distribution Date (or, in
the case of the first Distribution Date, the outstanding principal balance on
the Closing Date) and (2) the product of the Interest Rate for such class of
Class A Notes and a fraction, the numerator of which is 30 (or, in the case
of the first Distribution Date, the number of days elapsed from the Closing
Date to but excluding such Distribution Date), and the denominator of which
is 360.
Class A Notes: Collectively, the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes.
Class A-1 Notes: The Class A-1 6.73% Asset Backed Notes in the
aggregate principal amount of $140,000,000 issued pursuant to the Indenture.
Class A-2 Notes: The Class A-2 6.66% Asset Backed Notes in the
aggregate principal amount of $232,400,000 issued pursuant to the Indenture.
Class A-3 Notes: The Class A-3 6.67% Asset Backed Notes in the
aggregate principal amount of $184,900,000 issued pursuant to the Indenture.
Class A-4 Notes: The Class A-4 6.78% Asset Backed Notes in the
aggregate principal amount of $178,733,000 issued pursuant to the Indenture.
Class B Notes: The Class B 7.03% Asset Backed Notes in the aggregate
principal amount of $28,677,097.53 issued pursuant to the Indenture.
Class B Noteholders' Interest Carryover Shortfall: As of the close of
any Distribution Date, the excess of (i) the Class B Noteholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on the day preceding such
current Distribution Date in respect of interest on the Class B Notes.
Class B Noteholders' Interest Distributable Amount: With respect to
any Distribution Date, the sum of (i) the Class B Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and (ii) the Class B
Noteholders' Interest Carryover Shortfall as of the preceding Distribution
Date.
Class B Noteholders' Monthly Interest Distributable Amount: With
respect to any Distribution Date, the product of (i) the outstanding
principal balance of the Class B Notes on the preceding Distribution Date
after giving effect to all payments of principal in respect of the Class B
Notes on such preceding Distribution Date (or, in the case of the first
Distribution Date, the outstanding principal balance on the Closing Date) and
(ii) the product of the Interest Rate for the Class B Notes and a fraction,
the numerator of which is 30 (or, in the case of the first Distribution Date,
the number of days elapsed from the Closing Date to but excluding such
Distribution Date) and the denominator of which is 360.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
Clearing Agency Participant: A securities broker, dealer, bank, trust
company, clearing corporation or other financial institution or other Person
for whom from time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
Closing: "Closing" as defined in Section 2.03 of the Purchase Agreement.
Closing Date: November 1, 2000.
Code: The Internal Revenue Code of 1986, as amended from time to time,
and the Treasury Regulations promulgated thereunder.
Code Collateral: Any property a security interest in which may be
perfected by filing under the applicable UCC.
Collateral: The collateral specified in the Granting Clause of the
Indenture.
Collected Interest: With respect to any Distribution 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 and (iv) that portion of all Warranty Payments, Administrative
Purchase Payments or the Optional Purchase Proceeds allocable to accrued
interest or Prepayment Surplus; less 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: With respect to any Distribution 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 subsection 4.06(b)(i) of the
Pooling and Servicing Agreement.
Collection Account: The account designated as such, established and
maintained pursuant to Section 5.01(a)(i) of the Pooling and Servicing
Agreement.
Corporate Trust Office: With respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at The Bank of New York, 000
Xxxxxxx Xxxxxx Floor 12 East, New York, New York, 10286, Attn: Corporate
Trust Administration, and in the case of the Owner Trustee, at Chase
Manhattan Bank USA, National Association, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trustee Administration.
Custodian: NFC, as Servicer, or another custodian named from time to
time in the Custodian Agreement.
Custodian Agreement: The Custodian Agreement, dated as of November 1,
2000 between the Custodian and the Seller, as amended or supplemented from
time to time.
Cutoff Date: October 1, 2000.
Dealer: (i) A Person with whom International has a valid dealer
sales/maintenance agreement to sell International 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 International has a valid agreement to sell International vehicles.
Dealer Liability: With respect to a Receivable, all rights, claims and
actions of NFC against the Dealer 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: Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
Definitive Certificates: The Certificates specified in Section 3.13 of
the Trust Agreement.
Definitive Notes: The Notes specified in Section 2.12 of the Indenture.
Delinquency Percentage: With respect to a Distribution Date, the
aggregate Remaining Gross Balances of all outstanding Receivables which are
61 days or more past due as of the last day of the related Monthly Period, 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 the last day of such Monthly Period.
Designated Account Property: The Designated Accounts, all amounts and
investments held from time to time in any Designated Account (whether in the
form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), including the Reserve Account
Initial Deposit, and all proceeds of the foregoing.
Designated Accounts: The Collection Account, the Note Distribution
Account and the Reserve Account, collectively.
Designated Receivables: The "Designated Receivables" as defined in
Section 2.01 of the Purchase Agreement.
Determination Date: The day that is two Business Days prior to the
Distribution Date.
Distribution Date: With respect to a Monthly Period, the 15th day of
the next succeeding calendar month or, if such 15th day is not a Business
Day, the next succeeding Business Day, commencing November 15 , 2000.
Distributor: A distributor of vehicles and equipment not manufactured
by International.
Eligible Deposit Account: Either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds, acting in its fiduciary capacity,
deposited in such account so long as any of the securities of such depository
institution have a credit rating from each Rating Agency in one of its
generic rating categories for long-term unsecured debt which signifies
investment grade.
Eligible Institution: A depository institution organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank), (A) which
has either (1) a long-term unsecured debt rating of at least "AAA" from S& P
and "A2" from Xxxxx'x Investors Service, Inc. or (2) a short-term unsecured
debt or certificate of deposit rating of at least "A-1+" from S& P and "P-1"
from Xxxxx'x Investors Service, Inc., (B) whose deposits are insured by the
FDIC and (C) having a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition.
Eligible Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America;
(ii) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (or any
domestic branch of a foreign bank) and subject to supervision and
examination by Federal or State banking or depository institution
authorities; provided, however, that at the time of the investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category for short-term
unsecured debt obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a
rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby (including funds for which the Indenture
Trustee or the Owner Trustee or any of their respective affiliates is
investment manager or advisor, so long as such fund shall have such
rating);
(v) bankers' acceptances issued by any depository institution
or trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with (A) a depository institution
or trust company (acting as principal) described in clause (ii) or
(B) a depository institution or trust company the deposits of which are
insured by FDIC or the counterparty for which has a rating from each of
the Rating Agencies in the highest investment category for short-term
unsecured debt obligations, the collateral for which is held by a
custodial bank for the benefit of the Owner Trustee or the Indenture
Trustee, is marked to market daily and is maintained in an amount that
exceeds the amount of such repurchase obligation, and which requires
liquidation of the collateral immediately upon the amount of such
collateral being less than the amount of such repurchase obligation
(unless the counterparty immediately satisfies the repurchase
obligation upon being notified of such shortfall);
(vii) commercial paper master notes having, at the time of the
investment or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations; and
(viii) any other investment permitted by each of the Rating
Agencies.
in each case, other than as permitted by the Rating Agencies, maturing not
later than the Business Day immediately preceding the next Distribution Date.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: An event described in Section 5.1 of the Indenture.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: With respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any
general partner thereof.
Expenses: The expenses described in Section 6.9 of the Trust Agreement.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
Final Scheduled Distribution Date: With respect to a class of
Securities, the date set forth below opposite such Securities:
Class A-1 Notes: November 15, 2001
Class A-2 Notes: October 15, 2003
Class A-3 Notes: November 15, 2004
Class A-4 Notes: September 17, 2007
Class B Notes: September 17, 2007
Financed Vehicle: 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 Revised Article
8. As used herein, the Financial Asset "related to" a Security Entitlement
is the Financial Asset in which the entitlement holder (as defined in Revised
Article 8) holding such Security Entitlement has the rights and property
interest specified in Revised Article 8.
Full Prepayment: With respect to a Distribution 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.
Further Transfer and Servicing Agreements: The Pooling and
Servicing Agreement, the PSA Assignment, the Trust Agreement and the
Indenture.
Grant: To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to the Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of, the Collateral and
all other moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the Granting party or
otherwise and generally to do and receive anything that the Granting party is
or may be entitled to do or receive thereunder or with respect thereto.
Guaranties: With respect to any Receivable, personal or commercial
guaranties of an Obligor's performance with respect thereto.
Holder: The Person in whose name a Note or Certificate is registered
on the Note Register or the Certificate Register, as applicable.
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Indenture: The Indenture, dated as of November 1, 2000 between the
Owner Trustee and the Indenture Trustee, as amended and supplemented from
time to time.
Indenture Trustee: The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee under the
Indenture, or any successor trustee under the Indenture.
Independent: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Trust, the Owner Trustee, any other
obligor upon the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (ii) does not have any direct financial interest or any material
indirect financial interest in the Trust, the Owner Trust Estate or the Owner
Trustee, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons and (iii) is not connected with the Trust, the Owner Trust
Estate or the Owner Trustee, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Independent Certificate: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the
definition of "Independent" in the Indenture and that the signer is
Independent within the meaning thereof.
Indirect Participant: A securities broker, dealer, bank, trust company
or other Person that clears through or maintains a custodial relationship
with a Clearing Agency Participant, either directly or indirectly.
Initial Aggregate Receivables Balance: The sum of the Initial
Receivable Balances of the
Receivables as of the Cutoff Date, which is $764,710,097.53.
Initial Gross Receivable Balance: 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: 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 a Retail Note 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.
Insolvency Event: With respect to a specified Person, (i) the entry of
a decree or order by a court, agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver
or liquidator for such Person, in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of such Person's affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; (ii) the consent by such Person to the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Person or of or relating to substantially all of such Person's property,
or (iii) such Person 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.
Insurance Policy: 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: With respect to any Receivable, proceeds of any
Insurance Policy with respect to such Receivable.
Interest Rate: With respect to the Class A-1 Notes, 6.73% per annum,
with respect to the Class A-2 Notes, 6.66% per annum, with respect to the
Class A-3 Notes, 6.67% per annum, with respect to the Class A-4 Notes, 6.78%
per annum and with respect to the Class B Notes, 7.03% per annum.
Interested Parties: The Owner Trustee and each other party identified
or described in the Purchase Agreement or the Further Transfer and Servicing
Agreements as having an interest as owner, trustee, secured party or
Securityholder with respect to the Purchased Property.
International: International Truck and Engine Corporation, a Delaware
corporation, and its successors.
International Purchase Obligations: Certain obligations of
International, subject to limitations, to purchase Financed Vehicles securing
Liquidating Receivables pursuant to Article VI, "NFC/International Retail
Repossession Purchase and Remarketing Agreement" and other provisions of the
Master Intercompany Agreement by and between NFC and International dated as
of April 26, 1993, as such Master Intercompany Agreement may be amended,
supplemented, restated or otherwise modified.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts, net of losses and investment expenses, during the
applicable Monthly Period.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Owner Trustee by any one of its Authorized Officers and
delivered to the Indenture Trustee.
Lien: 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: 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: With respect to a Liquidating Receivable, an
amount not to exceed $750 (or such greater amount as the Servicer determines
necessary in accordance with its customary 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: 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 International Purchase Obligations and proceeds from any
Guaranties, net of amounts that are required to be refunded to the Obligor on
such Receivable.
Monthly Advance: The amount, as of an Accounting Date, which the
Servicer is required to advance on the respective Receivable pursuant to
Section 5.06 of the Pooling and Servicing Agreement.
Monthly Period: With respect to a Determination Date, a Record Date
and a Distribution Date, the calendar month preceding the month in which such
date occurs. With respect to an Accounting Date, the calendar month in which
such Accounting Date occurs.
New York UCC: The UCC as in effect in the State of New York.
NIC: Navistar International Corporation, a Delaware corporation, and
its successors.
NFC: Navistar Financial Corporation, a Delaware corporation, and its
successors.
NFRRC: Navistar Financial Retail Receivables Corporation, a Delaware
corporation, and its successors.
Noteholders: Holders of record of the Notes pursuant to the Indenture
and, with respect to any class of Notes, holders of record of such class of
Notes pursuant to the Indenture.
Noteholders' Principal Carryover Shortfall: As of the close of any
Distribution Date, the excess, if any, of Noteholders' Principal
Distributable Amount for such Distribution Date over the amount that was
actually deposited in the Note Distribution Account on the day preceding such
Distribution Date in respect of principal.
Noteholders' Principal Distributable Amount: For any Distribution
Date, the lesser of (x) the sum of (i) the Principal Distributable Amount,
(ii) the Noteholders' Principal Carryover Shortfall for the immediately
preceding Distribution Date and (iii) on the Final Scheduled Distribution
Date for a class of Notes, the amount necessary to reduce the Note Principal
Balance with respect to such class of Notes to zero and (y) the sum of the
Note Principal Balances with respect to each outstanding class of Notes.
Note Depository: The depositary from time to time selected by the
Indenture Trustee on behalf of the Trust in whose name the Notes are
registered prior to the issue of Definitive Notes. The first Note Depository
shall be Cede & Co., the nominee of the initial Clearing Agency.
Note Depository Agreement: The agreement, dated as of the Closing
Date, among the Owner Trustee, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency relating to the Notes, substantially
in the form of Exhibit D to the Indenture, as the same may be amended and
supplemented from time to time.
Note Distribution Account: The account designated as such, established
and maintained pursuant to Section 5.01(a)(ii) of the Pooling and Servicing
Agreement.
Note Owner: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an Indirect
Participant, in each case in accordance with the rules of such Clearing
Agency).
Note Pool Factor: With respect to any class of Notes and any
Distribution Date, a seven-digit decimal figure computed by the Servicer
which is equal to the Note Principal Balance for such class as of the close
of such Distribution Date divided by the initial Note Principal Balance for
such class.
Note Principal Balance: With respect to any class of Notes and any
Distribution Date, the initial aggregate principal balance of such class of
Notes, reduced by all previous payments to the Noteholders of such class in
respect of principal of such Notes.
Note Register: With respect to any class of Notes, the register of
such Notes specified in Section 2.4 of the Indenture.
Note Registrar: The registrar at any time of the Note Register,
appointed pursuant to Section 2.4 of the Indenture.
Notes: Collectively, the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes.
Obligor: 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.
Officer's Certificate: A certificate signed by any Authorized Officer
of the Owner Trustee, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in the Indenture to an officer's certificate shall be to an
Officer's Certificate of any Authorized Officer of the Owner Trustee.
Opinion of Counsel: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer.
In addition, for purposes of the Indenture: (i) such counsel shall be
satisfactory to the Indenture Trustee; (ii) the opinion shall be addressed to
the Indenture Trustee as Indenture Trustee and (iii) the opinion shall comply
with any applicable requirements of Section 11.1 of the Indenture and shall
be in form and substance satisfactory to the Indenture Trustee.
Optional Purchase Proceeds: The amount specified in the second or
third sentence, as applicable, of Section 9.01 of the Pooling and Servicing
Agreement.
Outstanding: With respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(i) Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(ii) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of such
Notes; provided, however, that if such Notes are to be redeemed, notice
of such redemption has been duly given pursuant to the Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made; and
(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a protected purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Voting Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Notes constituting part of the Owner Trust Estate, any other
obligor upon the Notes, the Seller or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes that the Indenture Trustee knows to be so owned shall be
so disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgor's right so to act with respect to such Notes
and that the pledgee is not the Owner Trust Estate, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons.
Outstanding Amount: As of any date, the aggregate principal amount of
all Notes, or a class of Notes, as applicable, Outstanding at such date.
Outstanding Monthly Advances: As of an Accounting Date with respect to
a Receivable, the sum of all Monthly Advances made as of or prior to such
Accounting Date minus all payments or collections as of or prior to such
Accounting Date which are specified in Section 5.06 of the Pooling and
Servicing Agreement as reducing Outstanding Monthly Advances with respect to
such Receivable.
Overdue Payment: With respect to a Distribution 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.
Owner: For purposes of the Purchase Agreement, the Custodian Agreement
and the Pooling and Servicing Agreement, the "Owner" of a Receivable means
(i) NFRRC until the execution and delivery of the Further Transfer and
Servicing Agreements and (ii) thereafter, the Owner Trustee, on behalf of the
Trust; provided, that NFC or NFRRC, as applicable, shall be the "Owner" of
any Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to Section 5.04 of the Purchase Agreement,
Section 3.08 of the Pooling and Servicing Agreement, any other provision of
the Further Transfer and Servicing Agreements or otherwise.
Owner Trust Estate: All right, title and interest of the Owner
Trustee, on behalf of the Trust in and to the property and rights assigned to
the Owner Trustee, on behalf of the Trust pursuant to Article II of the
Pooling and Servicing Agreement, all funds on deposit from time to time in
the Collection Account and the Certificate Distribution Account and all other
property of the Owner Trustee, on behalf of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the
Pooling and Servicing Agreement and the Administration Agreement.
Owner Trustee: Chase Manhattan Bank USA, National Association, a
national bank, not in its individual capacity but solely as owner trustee
under the Trust Agreement, or any successor trustee under the Trust Agreement.
PA Assignment: As defined in Section 2.01 of the Purchase Agreement.
Partial Prepayment: With respect to a Distribution 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 procedures.
Party: A Party as defined in Section 6.01 of the Pooling and Servicing
Agreement.
Paying Agent: With respect to the Indenture, the Indenture Trustee or
any other Person that meets the eligibility standards for the Indenture
Trustee specified in Section 6.11 of the Indenture and is authorized by the
Owner Trustee to make the payments to and distributions from the Collection
Account and the Note Distribution Account, including payment of principal of
or interest on the Notes on behalf of the Owner Trustee. With respect to the
Trust Agreement, any paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement that meets the eligibility standards for
the Owner Trustee specified in Section 6.13 of the Trust Agreement, and
initially The Chase Manhattan Bank.
Person: Any legal person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
Physical Property: Means bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and are
susceptible of physical delivery.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of November 1, 2000, among NFC, the Seller and Chase Manhattan Bank
USA, National Association, as Owner Trustee, as amended and supplemented from
time to time.
Predecessor Note: With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
Prepayment: With respect to a Distribution Date and to a Receivable,
the portion of an Actual Payment in excess of the Scheduled Payment.
Prepayment Surplus: With respect to any Distribution 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 Distributable Amount: With respect to any Distribution 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).
Principal Payment Amount: With respect to any Distribution Date, an
amount equal to the lesser of (a) the Principal Distributable Amount for such
Distribution Date and (b) the Total Available Amount over the sum of the
Total Servicing Fee and accrued and unpaid interest on the Notes due and
payable on such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program: As defined in subsection 4.02(a) of the Pooling and Servicing
Agreement.
PSA Assignment: The Assignment described in Section 2.01 of the
Pooling and Servicing Agreement.
Purchase Agreement: The Purchase Agreement, dated as of November 1,
2000, between NFC and the Seller, as amended and supplemented from time to
time.
Purchase Date: "Purchase Date" as defined in Section 2.01 of the
Purchase Agreement.
Purchase Price: As defined in Section 2.02 of the Purchase Agreement.
Purchased Property: As of any date, means all of the Designated
Receivables and the Related Security transferred by NFC to NFRRC pursuant to
Section 2.01 of the Purchase Agreement as of such date.
Rating Agencies: As of any date, the nationally recognized statistical
rating organizations requested by the Seller to provide ratings on the Notes
which are rating the Notes on such date.
Rating Agency Condition: With respect to any action, the condition
that each Rating Agency shall have been given at least 10 days (or such
shorter period as is acceptable to each Rating Agency) prior notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Owner Trustee in writing that such action shall not result
in a downgrade or withdrawal of the then current rating of the Notes.
Rebate: 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.
Receivable: A Retail Note secured by one or more Financed Vehicles
that is transferred to the Owner Trustee pursuant to the Pooling and
Servicing Agreement and all rights and obligations thereunder.
Receivable Balance: 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, proceeds from any International Purchase Obligations and proceeds
from any Guaranties.
Receivable File: The documents listed in Section 2.03 of the Pooling
and Servicing Agreement pertaining to a particular Receivable.
Record Date: (i) with respect to the Notes and with respect to any
Distribution Date, the close of business on the day immediately preceding
such Distribution Date, or if Definitive Notes are issued, the last day of
the preceding Monthly Period; and (ii) with respect to the Certificates and
with respect to any Distribution Date, the last day of the preceding monthly
period.
Redemption Date: The Distribution Date specified by the Servicer or
the Owner Trustee pursuant to Section 10.1(a) or (b) of the Indenture, as
applicable.
Redemption Price: An amount equal to the aggregate of the Outstanding
Amount of such Notes, together with all accrued and unpaid interest thereon
as of the Redemption Date.
Registered Holder: The Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
Related Security: The "Related Security" as defined in Section 2.01 of
the Purchase Agreement.
Remaining Gross Balance: 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.
Repurchase Event: A Repurchase Event described in Section 5.04 of the
Purchase Agreement.
Required Deposit Rating: A rating on short-term unsecured debt
obligations of P-1 by Xxxxx'x Investors Service, Inc. and A-1+ by S& P. Any
requirement that short-term unsecured debt obligations have the "Required
Deposit Rating" means that such short-term unsecured debt obligations have
the foregoing required ratings from each of such rating agencies.
Reserve Account: The account designated as such, established and
maintained pursuant to Section 4.07(a) of the Pooling and Servicing Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of at least $36,323,729.63, which shall be deposited into the Reserve
Account on the Closing Date, pursuant to Section 4.07(a) of the Pooling and
Servicing Agreement.
Reserve Account Property: As defined in the Granting Clause of the
Indenture.
Responsible Officer: With respect to the Indenture Trustee or the
Owner Trustee, any officer within the Corporate Trust Office of such trustee,
including any Vice President, Assistant Vice President, Assistant Secretary,
Assistant Treasurer, Trust Officer or any other officer of such Trustee who
customarily performs functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of the Indenture or the Trust, as
applicable, and, with respect to the Servicer, the President, any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any
other officer or assistant officer of such Person customarily performing
functions similar to those performed by any of the above designated officers,
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
Retail Note: A retail loan evidenced by a note and secured by, one
or more new or used medium or heavy duty trucks, buses or trailers.
Revised Article 8: Revised Article 8 (1994 Version) (and corresponding
amendments to Article 9) as promulgated in 1994 by the National Conference of
Commissioners on Uniform State Laws, in the form in which it has been adopted
in the State of New York.
S& P : Standard & Poor's Ratings Services and any successor thereto.
Schedule of Receivables: The schedule of all Receivables transferred
to the Owner Trustee, annexed to the Pooling and Servicing Agreement and on
file at the locations listed on Exhibit B to the Pooling and Servicing
Agreement, as it may be amended from time to time in accordance the Pooling
and Servicing Agreement.
Scheduled Payment: 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, including
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
Distribution Date, it means the payment which is due in the related Monthly
Period; provided, however, that in the case of the first Distribution Date,
the Scheduled Payment shall include all such payments due from the Obligor on
or after the Cutoff Date.
Secretary of State: The Secretary of State of the State of Delaware.
Securities: The Notes and the Certificates.
Securities Act: The Securities Act of 1933, as amended.
Security Certificate: Has the meaning given such term in Section
8-102(a)(16) of the New York UCC.
Security Entitlement: Has the meaning given such term in Section
8-102(a)(17) of the New York UCC.
Securityholder: Any of the Noteholders or Certificateholders.
Seller: The Person executing the Pooling and Servicing Agreement as
the Seller, or its successor in interest pursuant to Section 6.03 of the
Pooling and Servicing Agreement.
Servicer: The Person executing the Pooling and Servicing Agreement as
the Servicer, or its successor in interest pursuant to Section 7.02 of the
Pooling and Servicing Agreement.
Servicer Default: An event described in Section 8.01 of the Pooling
and Servicing Agreement.
Servicer's Certificate: A certificate, completed by and executed on
behalf of the Servicer, in accordance with Section 3.10 of the Pooling and
Servicing Agreement.
Specified Reserve Account Balance: With respect to any Distribution
Date, the lesser of (i) the Note Principal Balance for all classes of Notes
as of such Distribution Date, and (ii) the greater of:
(a) 5.5% of the Aggregate Receivables Balance as of the close
of business on the last day of the related Monthly Period, except that
if on any Distribution 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 Distribution 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 Distribution 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
Distribution 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 in
this clause (a), shall be equal to 10.0%; and
(b) 2.0% of the Initial Aggregate Receivables Balance.
State: Any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or the
District of Columbia.
Supplemental Servicing Fee: All late fees, prepayment charges and
other administrative fees and expenses or similar charges allowed by
applicable law with respect to Receivables, collected (from whatever source)
on the Receivables during the applicable Monthly Period.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Total Available Amount: With respect to a Distribution Date, the sum
of the Available Amount and the amount of all cash and other immediately
available funds in the Reserve Account immediately prior to such date.
Total Servicing Fee: The sum of the Basic Servicing Fee and any unpaid
Basic Servicing Fees from all prior Distribution Dates.
Transfer and Servicing Agreements: The Purchase Agreement, the PA
Assignment, the Pooling and Servicing Agreement, the PSA Assignment, the
Trust Agreement, the Indenture, the Administration Agreement and the
Custodian Agreement.
Transfer Date: With respect to any Distribution Date, the Business Day
immediately preceding such Distribution Date.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: Navistar Financial 2000-B Owner Trust, a Delaware common law
trust created by the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of November 1, 2000,
between the Seller and the Owner Trustee, as amended and supplemented from
time to time; such agreement being the Amended and Restated Trust Agreement
contemplated by the Trust Agreement dated October 18, 2000 between the Seller
and the Owner Trustee.
Trust Estate: All money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of
the Indenture for the benefit of the Noteholders (including all property and
interests Granted to the Indenture Trustee), including all proceeds thereof,
and the Reserve Account and the Reserve Account Property pledged to the
Indenture Trustee pursuant to the Indenture.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
Trustees: The Owner Trustee and the Indenture Trustee.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
Uncertificated Security: As of any date, has the meaning given to such
term under the applicable UCC as in effect on such date.
Underwriting Agreement: The Underwriting Agreement, dated October 19,
2000, among Banc of America Securities LLC, as representative of the several
underwriters party thereto, the Servicer and the Seller with respect to the
sale of the Notes.
Voting Notes: Whenever any request, demand, authorization, direction,
notice, consent, waiver or other act of a specified percentage in Outstanding
Amount of the Notes is required to be obtained from, given by or furnished to
or filed with the Indenture Trustee, the Owner Trustee or the Rating
Agencies, such requirement shall be satisfied as to the "Voting Notes" if the
specified percentage of the Outstanding Amount of each of the following two
voting classes acts in such fashion: (a) first, the Class A Notes and the
Class B Notes voting together as a single class and (b) second, the Class A
Notes voting as a single class.
Warranty Payment: With respect to a Distribution 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 5.06 of the Pooling and
Servicing 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 with respect to such Warranty Receivable.
Warranty Purchaser: Either (i) the Seller pursuant to Section 2.06 of
the Pooling and Servicing Agreement or (ii) NFC pursuant to Section 5.04 of
the Purchase Agreement.
Warranty Receivable: A Receivable which the Warranty Purchaser has
become obligated to repurchase pursuant to Section 2.06 of the Pooling and
Servicing Agreement or Section 5.04 of the Purchase Agreement.
PART II - RULES OF CONSTRUCTION
(a) Accounting Terms. As used in this Appendix or the Basic
Documents, accounting terms which are not defined, and accounting terms
partly defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Appendix or the Basic Documents are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Appendix or the
Basic Documents will control.
(b) "Hereof," etc. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and Section,
Schedule and Exhibit references contained in this Appendix or any Basic
Document are references to Sections, Schedules and Exhibits in or to this
Appendix or such Basic Document unless otherwise specified. The word "or" is
not exclusive.
(c) Reference to Distribution Dates. With respect to any
Distribution Date, the "related Monthly Period," and the "related Record
Date," will mean the Monthly Period and Record Date, respectively,
immediately preceding such Distribution Date, and the relationships among
Monthly Periods and Record Dates will be correlative to the foregoing
relationships.
(d) Number and Gender. Each defined term used in this Appendix or
the Basic Documents has a comparable meaning when used in its plural or
singular form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine, feminine or
gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that
term is followed by the phrase "but not limited to" or "without limitation"
or words of similar effect) is used in this Appendix or the Basic Documents
in connection with a listing of items within a particular classification,
that listing will be interpreted to be illustrative only and will not be
interpreted as a limitation on, or exclusive listing of, the items within
that classification.
--------------------------------------------------------------------------------
APPENDIX B
Notice Addresses and Procedures
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic
Document to be made upon, given or furnished to or filed with the Seller, the
Servicer, the Administrator, the Indenture Trustee, the Owner Trustee or the
Rating Agencies shall be in writing, personally delivered, sent by facsimile
with a copy to follow via first class mail or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given upon receipt:
(a) in the case of the Seller, at the following address:
Navistar Financial Retail Receivables Corporation
c/o Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Navistar Financial Retail Receivables Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(b) in the case of the Servicer, the Custodian or the
Administrator, at the following address:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
with a copy to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(c) in the case of the Indenture Trustee, at its Corporate
Trust Office
(d) in the case of the Owner Trustee, to the Owner Trustee at
its Corporate Trust Office, with copies to:
Navistar Financial Retail Receivables Corporation
c/o Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
and:
Navistar Financial Retail Receivables Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
The Owner Trustee shall promptly transmit any notice received by
it from the Noteholders to the Indenture Trustee and the
Indenture Trustee shall likewise promptly transmit any notice
received by it from the Noteholders to the Owner Trustee.
(e) in the case of Xxxxx'x Investors Service, Inc., to
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 and
(f) in the case of Standard & Poor's Ratings Services, to
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
or at such other address as shall be designated by such party in a written
notice to the other parties to this Agreement.
--------------------------------------------------------------------------------
Where any Basic Document provides for notice to Securityholders
of any condition or event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if it is in writing and mailed,
first-class, postage prepaid to each Securityholder affected by such
condition or event, at such Person's address as it appears on the Note
Register or Certificate Register, as applicable, not later than the latest
date, and not earlier than the earliest date, prescribed in such Basic
Document for the giving of such notice. If notice to Securityholders is
given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Securityholder shall affect the
sufficiency of such notice with respect to other Securityholders, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given regardless of whether such notice is in fact
actually received.
