EXHIBIT 99.1
Execution Copy
================================================================================
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF JUNE 5, 2003
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS..............................................................................1
SECTION 1.01 Definitions...................................................................1
ARTICLE II PURCHASE AND SALE OF RECEIVABLES........................................................1
SECTION 2.01 Purchase and Sale of Receivables..............................................1
SECTION 2.02 Purchase Price................................................................2
SECTION 2.03 The Closings..................................................................2
SECTION 2.04 Covenant Regarding Subsequent Receivables.....................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES.........................................................3
SECTION 3.01 Representations and Warranties as to Receivables..............................3
SECTION 3.02 Additional Representations and Warranties of NFC..............................8
SECTION 3.03 Representations and Warranties of NFRRC......................................10
SECTION 3.04 Representations and Warranties Regarding Titling Trust.......................11
ARTICLE IV CONDITIONS.............................................................................13
SECTION 4.01 Conditions to Obligation of NFRRC............................................13
SECTION 4.02 Conditions To Obligation of NFC..............................................14
ARTICLE V ADDITIONAL AGREEMENTS...................................................................14
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements.....................14
SECTION 5.02 Protection of Title..........................................................15
SECTION 5.03 Other Liens or Interests.....................................................15
SECTION 5.04 Repurchase Events............................................................15
SECTION 5.05 Indemnification..............................................................16
SECTION 5.06 Further Assignments..........................................................16
SECTION 5.07 Pre-Closing Collections......................................................16
SECTION 5.08 Limitation on Transfer of International Purchase Obligations.................17
SECTION 5.09 Sale Treatment...............................................................17
SECTION 5.10 No Petition; Waiver of Claims................................................17
ARTICLE VI MISCELLANEOUS PROVISIONS...............................................................17
SECTION 6.01 Amendment....................................................................17
SECTION 6.02 Survival.....................................................................17
SECTION 6.03 Notices......................................................................18
SECTION 6.04 Governing Law................................................................18
SECTION 6.05 Waivers......................................................................18
SECTION 6.06 Costs and Expenses...........................................................18
SECTION 6.07 Confidential Information.....................................................18
SECTION 6.08 Headings.....................................................................18
SECTION 6.09 Counterparts.................................................................18
SECTION 6.10 Severability of Provisions...................................................18
-i-
SECTION 6.11 Further Assurances...........................................................18
SECTION 6.12 No Third-Party Beneficiaries.................................................19
SECTION 6.13 Merger and Integration.......................................................19
SECTION 6.14 No Petition Covenants........................................................19
EXHIBITS
Exhibit A - Form of Initial PA Assignment
Exhibit B - Form of Subsequent Transfer PA Assignment
APPENDICES
Appendix A - Additional Representations and Warranties
-ii-
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of June 5, 2003, between NAVISTAR FINANCIAL
RETAIL RECEIVABLES CORPORATION, a Delaware corporation ("NFRRC"), and NAVISTAR
FINANCIAL CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase on the date hereof and from time to
time during the Funding Period certain Retail Notes and Retail Leases
(collectively, the "Receivables") and the Related Security with respect thereto;
WHEREAS, NFC is willing to sell the Receivables and the Related Security
with respect thereto to NFRRC;
WHEREAS, NFRRC may wish to sell or otherwise transfer the Receivables
and the Related Security with respect thereto, or interests therein, to a trust,
corporation, partnership or other entity (any such transferee being the
"Subsequent Transferee"); and
WHEREAS, the Subsequent Transferee may issue debentures, notes,
participations, certificates of beneficial interest, partnership interests or
other interests or securities (collectively, any such issued interests or
securities being "Securities") to fund its acquisition of the Receivables and
the Related Security with respect thereto.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Capitalized terms used but not
otherwise defined in this Agreement shall have the respective meanings assigned
them in Part I of Appendix A to the Pooling Agreement of even date herewith by
and between Navistar Financial 2003-A Owner Trust and NFRRC, as it may be
amended, supplemented or modified from time to time. All references herein to
"the Agreement" or "this Agreement" are to this Purchase 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
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables. Subject to the
satisfaction of the conditions specified in Article IV, NFC agrees to sell,
transfer, assign and otherwise convey
to NFRRC, without recourse (except as provided in Section 5.04), and NFRRC
agrees to purchase (i) on the Closing Date pursuant to a written assignment
substantially in the form of Exhibit A (the "Initial PA Assignment"), and (ii)
on each Subsequent Transfer Date (each, together with the Closing Date, a
"Purchase Date"), pursuant to an assignment substantially in the form of Exhibit
B (each, a "Subsequent Transfer PA Assignment" and, together with the Initial PA
Assignment, each a "PA Assignment") up to the Available Purchase Amount, all
right, title and interest of NFC in, to and under:
(a) the Retail Notes identified on the Schedule of Retail
Notes to the PA Assignment delivered to NFRRC on such Purchase Date (the
"Designated Retail Notes") and the Related Retail Note Assets associated with
the Designated Retail Notes;
(b) the Series 2003-A Portfolio Interest and the beneficial
interest in the Series 2003-A Portfolio Assets, including the Retail Leases
identified on the Schedule of Retail Leases to the Initial PA Assignment
delivered to NFRRC on the Closing Date and the Retail Leases identified on the
Schedule of Retail Leases to the PA Assignment delivered to NFRRC on any
subsequent Purchase Date (the "Designated Retail Leases" and together with the
Designated Retail Notes, the "Designated Receivables") and the Related Titling
Trust Assets associated with the Designated Retail Leases and, with respect to
the sale on the Closing Date, the Series 2003-A Portfolio Certificate; and
(c) the rights, but not the obligations, of NFC under the
Lease Purchase Agreement, the Initial LPA Assignment and any Subsequent Transfer
LPA Assignment with respect to the Designated Retail Leases.
SECTION 2.02 Purchase Price. In consideration for the
purchase of any Designated Receivables and Related Security, NFRRC shall, on the
related Purchase Date, pay to NFC an amount equal to the aggregate Starting
Receivables Balance for such Designated Receivables (the "Purchase Price") and
NFC shall execute and deliver to NFRRC a PA Assignment with respect to such
Designated Receivables. On the Closing Date, a portion of the $326,316,883.05
Purchase Price payable on such date equal to $311,702,261.52 shall be paid to
NFC in immediately available funds, and the balance of the Purchase Price
($14,614,621.53) shall be recorded as an advance from NFC to NFRRC. On each
Subsequent Transfer Date, a portion of the Purchase Price payable on such date
equal to the amount received by NFRRC pursuant to Section 8.11(a) of the
Indenture shall be paid to NFC in immediately available funds, and the balance
of the Purchase Price payable on such date shall be recorded as an advance from
NFC to NFRRC.
SECTION 2.03 The Closings. Each sale and purchase of the
Designated Receivables (each, a "Closing"), shall take place at such a place, on
a date and at a time mutually agreeable to NFC and NFRRC, and may occur
simultaneously with the closing of any related transactions contemplated by the
Further Transfer and Servicing Agreements.
SECTION 2.04 Covenant Regarding Subsequent Receivables. NFC
covenants to deliver and sell to NFRRC pursuant to Section 2.01 on or prior to
the end of the Funding Period Subsequent Receivables with an aggregate Starting
Receivable Balance equal to the amount of the Pre-Funding Account Initial
Deposit. If on the Distribution Date on which the Funding
-2-
Period ends (or, if the Funding Period does not end on a Distribution Date, the
first Distribution Date following the end of the Funding Period), the Pre-Funded
Amount is equal to or greater than $100,000, NFC shall be obligated to pay to
NFRRC an amount equal to the Noteholders' Prepayment Premium with respect to
each class of Notes on the Transfer Date immediately preceding the Distribution
Date on which the Funding Period ends (or, if the Funding Period does not end on
a Distribution Date, on the first Distribution Date following the end of the
Funding Period); provided, however, that the foregoing shall be the sole remedy
of NFRRC, the Issuer, the Indenture Trustee or the Noteholders with respect to a
failure of NFC to comply with this covenant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties as to
Receivables. NFC makes the following representations and warranties and the
additional representations and warranties set forth in Appendix A hereto as to
the Designated Receivables on which NFRRC relies in accepting the Designated
Receivables. Such representations and warranties (other than Section 3.01(n),
which speaks only as of the Closing Date) speak as of the Purchase Date for such
Designated Receivables, and as of the date of the related transfer of such
Designated Receivables under the Further Transfer and Servicing Agreements, and
shall survive the sale, transfer and assignment of such Designated Receivables
to NFRRC and the subsequent assignment and transfer thereof pursuant to the
Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each Designated
Receivable:
(i) (A) in the case of a Retail Note, was originated
by NFC to finance a retail purchase by a retail customer or a
refinancing (for reasons other than credit reasons) of a Financed
Vehicle or Financed Vehicles by a retail customer and (B) in the case of
a Retail Lease, was originated by Harco Leasing, the Titling Trust or
one or more of their Affiliates for the retail lease of one or more
Financed Vehicles (other than a release for credit reasons), and in each
case, (A) and (B), was fully and properly executed by the parties
thereto;
(ii) in the case of a Retail Note, has created or
shall create a valid, binding and enforceable first priority security
interest in favor of NFC in each Financed Vehicle related thereto, which
security interest will be validly assigned by NFC to NFRRC and will be
assignable by NFRRC to a subsequent purchaser;
(iii) contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for realization against the collateral of the benefits of the security;
(iv) in the case of a Retail Lease, is a Finance
Lease or a TRAC Lease and (A) in the case of a Finance Lease, provides
for payments (including purchase option payments) that fully amortize
the Initial Capitalized Cost over its original term to maturity and
yields implicit interest at a fixed annual percentage rate, with a
purchase option price that does not exceed $1,000 and (B) in the case of
a TRAC
-3-
Lease, provides for payments that fully amortize the Initial Capitalized
Cost to an amount equal to the TRAC Payment, and, in the event of a
termination of the TRAC Lease, the amount payable thereunder by the
Obligor is at least equal to the excess of the Outstanding Capitalized
Cost of the related Financed Vehicle over the proceeds from the sale of
such Financed Vehicle;
(v) in the case of a Retail Note, shall yield
interest at the Annual Percentage Rate and comes from one of the
following categories, which differ in their provisions for the payment
of principal and interest: Equal Payment Fully Amortizing Receivables,
Equal Payment Skip Receivables, Equal Payment Balloon Receivables, Level
Principal Fully Amortizing Receivables, Level Principal Skip
Receivables, Level Principal Balloon Receivables, or Other Receivables.
"Equal Payment Fully Amortizing Receivables" are Receivables that
provide for equal monthly payments that fully amortize the amount
financed over its original term to maturity. "Equal Payment Skip
Receivables" are Receivables that provide for equal monthly payments in
eleven or fewer months of each twelve-month period that fully amortize
the amount financed over its original term to maturity. "Equal Payment
Balloon Receivables" are Receivables that provide for equal monthly
payments except that a larger payment becomes due on the final maturity
date for such Receivables. "Level Principal Fully Amortizing
Receivables" are Receivables that provide for monthly payments
consisting of level principal amounts together with accrued and unpaid
interest on the unpaid Receivables Balances. "Level Principal Skip
Receivables" are Receivables that provide for monthly payments in eleven
or fewer months of each twelve-month period consisting of level
principal amounts together with accrued and unpaid interest on the
unpaid Receivables Balances. "Level Principal Balloon Receivables" are
Receivables that provide for monthly payments consisting of level
principal amounts together with accrued and unpaid interest on the
unpaid Receivables Balances, except that a larger principal payment
becomes due on the final maturity date for such Receivables. "Other
Receivables" are Receivables not described above, including Receivables
that provide for level monthly payments in eleven or fewer months of
each twelve-month period that amortize a portion of the amount financed
over its original term to maturity with a larger payment that becomes
due on the final maturity date for such Receivables;
(vi) in the case of a Retail Note, immediately prior
to the transfer and assignment thereof to NFRRC by NFC pursuant to this
Agreement, NFC had good title to it, free of any Lien (except for
Permitted Liens and Liens that will be released as of such transfer),
and all right, title and interest in it has been validly sold by NFC to
NFRRC pursuant to this Agreement, and NFRRC has good title to it, free
of any Lien (except for Permitted Liens), and the transfer of the Retail
Note to NFRRC has been perfected under the UCC;
(vii) in the case of a Retail Lease, (A) such Retail
Lease is owned of record by the Titling Trust, (B) immediately prior to
the allocation of such Retail Lease to the Series 2003-A Portfolio
Interest, Harco Leasing was the beneficial owner of such Retail Lease
free of any Lien (except for Permitted Liens and Liens that will be
released as of such transfer), (C) all of Harco Leasing's right, title
and interest in
-4-
such Retail Lease has been validly sold by Harco Leasing to NFC pursuant
to the Lease Purchase Agreement, (D) upon execution and delivery of this
Agreement and the related PA Assignment by NFC and satisfaction of the
conditions set forth in Section 4.02 hereof relating to such Retail
Lease, all right, title and interest in such Retail Lease (other than
the interest therein of the Titling Trust) shall have been validly sold
by NFC to NFRRC pursuant to this Agreement and NFRRC shall be the owner
of all right, title and interest in such Retail Lease (other than the
interest of the Titling Trust) free of any Lien (except for Permitted
Liens) and its transfer to NFRRC has been perfected under the UCC;
(viii) in the case of a Retail Lease, each Financed
Vehicle related thereto is owned by the Titling Trust (or its nominee)
as record owner and upon issuance of the Series 2003-A Portfolio
Certificate, NFRRC will be the beneficial owner through its ownership of
the Series 2003-A Portfolio Interest of such Financed Vehicle and any
certificate of title or other evidence of ownership of such Financed
Vehicle issued by a registrar of titles in the respective jurisdiction
in which such Financed Vehicle is registered, relating to each such
vehicle is registered in the name of the Titling Trust (or its nominee)
(or a properly completed application for such title has been or will be
submitted to the appropriate titling authority) with a notation of Lien
thereon in favor of the Collateral Agent;
(ix) in the case of a Retail Lease, as of the related
Purchase Date, such Retail Lease has been allocated to the 2003-A
Portfolio Interest; and
(x) such Designated Receivable was originated in the
ordinary course of business in accordance with NFC's underwriting
standards.
(b) Schedules of Retail Leases and Retail Notes. The
information set forth in the Schedule of Retail Leases and the Schedule of
Retail Notes relating to such Designated Receivables is true and correct in all
material respects.
(c) Compliance With Law. All requirements of applicable
federal, state and local laws, and regulations thereunder, including the Equal
Credit Opportunity Act, the Federal Reserve Board's Regulation "B", the
Soldiers' and Sailors' Civil Relief Act of 1940, and any applicable bulk sales
or bulk transfer law and other equal credit opportunity and disclosure laws, in
respect of any of the Designated Receivables, have been complied with in all
material respects, and each such Designated Receivable and the sale or lease of
the Financed Vehicle or Financed Vehicles evidenced thereby complied at the time
it was originated or made and now complies in all material respects with all
legal requirements of the jurisdiction in which it was originated or made.
(d) Binding Obligation. Each Designated Receivable
represents the genuine, legal, valid and binding payment obligation in writing
of the Obligor thereon, enforceable against the Obligor by the holder thereof in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors' rights in general and by equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
-5-
(e) Security Interest in Financed Vehicle. In the case of a
Retail Note, immediately prior to the sale, transfer and assignment thereof
pursuant hereto, each Designated Retail Note was secured by a validly perfected
first priority security interest in the related Financed Vehicle or, in the
event any such Receivable was secured by more than one Financed Vehicle, in each
related Financed Vehicle, each in favor of NFC as secured party, or all
necessary and appropriate action had been commenced that will result, within 100
days following the applicable Cutoff Date, in the valid perfection of a first
priority security interest in each related Financed Vehicle in favor of NFC as
secured party in each case (except for first priority security interests which
may exist in any accessions not financed by NFC) and, in the case of a Retail
Lease, the Collateral Agent (or its nominee) has a first priority perfected
security interest in such Retail Lease and has or upon completion of the titling
process with the appropriate titling authority will have a first priority
perfected security interest in the related Financed Vehicle which will be
validly assigned by NFC to NFRRC and is further assignable by NFRRC pursuant to
the Further Transfer and Servicing Agreements.
(f) Receivables In Force. No Designated Receivable has been
satisfied, subordinated or rescinded, and, in the case of the Designated Retail
Notes, no Financed Vehicle securing any Designated Receivable has been released
from the Lien of the related Receivable in whole or in part.
(g) No Waiver. Since the applicable Cutoff Date, no
provision of any Designated Receivable has been waived, altered or modified in
any respect.
(h) No Amendments. Since the applicable Cutoff Date, no
Designated Receivable has been amended or otherwise modified such that the total
number of the Obligor's Scheduled Payments is increased or the Starting
Receivable Balance thereof is increased, and prior to the applicable Cutoff
Date, no Designated Receivable has been amended or restructured for credit
reasons.
(i) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with respect to any
Designated Receivable.
(j) No Liens. There are, to NFC's knowledge, no Liens or
claims that have been filed for work, labor or materials affecting any Financed
Vehicle relating to any Designated Receivable that are or may be prior to, or
equal or coordinate with, the security interest in each Financed Vehicle granted
by the Designated Receivable or the Collateral Agreement (except for Permitted
Liens).
(k) No Default. There has been no default, breach, violation
or event permitting acceleration under the terms of any Designated Receivable,
and no event has occurred and is continuing that with notice or the lapse of
time would constitute a default, breach, violation or event permitting
acceleration under the terms of any Designated Receivable, and NFC or Harco
Leasing, as the case may be, has not waived any of the foregoing, in each case
except for payments on any Designated Receivables which are not more than 60
days past due (measured from the date of any Scheduled Payment) as of the
applicable Cutoff Date.
-6-
(l) Insurance. Each Obligor on a Designated Receivable is
required to maintain a physical damage insurance policy for each Financed
Vehicle of the type that NFC requires in accordance with its customary
underwriting standards for the purchase or lease of truck, bus and trailer
receivables, unless NFC has in accordance with its customary procedures
permitted an Obligor to self-insure such Financed Vehicle.
(m) Maintenance. In the case of a Retail Lease, such Obligor
is required to maintain the related Financed Vehicle in good repair and is
obligated to pay the cost of all necessary repairs, maintenance and replacements
with respect to such Financed Vehicle and all costs, expenses, fees and charges
incurred in the use and operation of such Financed Vehicle and all taxes on or
relating to such Financed Vehicle.
(n) Good Title. On the date hereof, NFC has good title to
the Series 2003-A Portfolio Interest and the Series 2003-A Portfolio
Certificate, free and clear of all Liens, (other than Permitted Liens). On the
date hereof, upon execution and delivery of this Agreement and the related PA
Assignment by NFC and the satisfaction of the conditions set forth in Section
4.02 hereof, good and valid title to the Series 2003-A Portfolio Interest and
the Series 2003-A Portfolio Certificate will be validly and effectively conveyed
to, and vested in, NFRRC, free and clear of all Liens, other than Permitted
Liens, and the transfer of the Series 2003-A Portfolio Interest and the Series
2003-A Portfolio Certificate by NFC to NFRRC has been perfected.
(o) Lawful Assignment. No Designated Receivable was
originated in, or is subject to the laws of, any jurisdiction the laws of which
would make unlawful the sale, transfer and assignment of such Designated
Receivable under the Lease Purchase Agreement, this Agreement or any Further
Transfer and Servicing Agreements.
(p) All Filings Made. All filings necessary under the UCC in
any jurisdiction to give NFRRC a first priority perfected security or ownership
interest in the Designated Receivables and the Related Security (to the extent
it constitutes Code Collateral) shall have been made, and the Designated
Receivables constitute Code Collateral.
(q) One Original. There is only one original executed copy
of each Designated Receivable.
(r) No Documents or Instruments. No Designated Receivable,
or constituent part thereof, constitutes a "negotiable instrument" or
"negotiable document of title" (as such terms are used in the UCC).
(s) Maturity of Receivables. Each Designated Receivable has
an original term to maturity of not less than 6 months and not greater than 84
months and, as of the related Cutoff Date, had a remaining term to maturity of
not less than 6 months and not greater than 72 months.
(t) Scheduled Payments; Delinquency. As of the Initial
Cutoff Date, each Designated Receivable being purchased on the Closing Date had
a first scheduled payment that was due on or before June 30, 2003; as of the
applicable Cutoff Date, each Designated Receivable being purchased during the
Funding Period had or will have a first scheduled payment that was due on or
before the last day of the Monthly Period next following the
-7-
Monthly Period in which such Cutoff Date occurs; as of the applicable Cutoff
Date, no Designated Receivable had or will have a payment that was more than 60
days past due; and as of the related Purchase Date, no Designated Receivable had
or will have a final scheduled payment that is due later than October 31, 2009.
(u) Vehicles. Each Financed Vehicle to which a Designated
Receivable relates was a new or used medium or heavy duty truck, truck chassis,
bus or trailer at the time the related Obligor executed the Retail Note or
Retail Lease.
(v) Origin. Each Designated Receivable was originated in the
United States and is payable in U.S. Dollars.
(w) Starting Receivable Balance. The Starting Receivable
Balance of each Designated Receivable as of its applicable Cutoff Date shall be
$1,000 or more.
(x) Concentration. After giving effect to the transfer of
such Designated Receivables to the Trust under the Further Transfer and
Servicing Agreements, (i) the aggregate Receivable Balance of all Receivables
from a single Obligor shall not be more than 2.00% of the aggregate Receivable
Balance of all Receivables in the Trust, (ii) the weighted average Annual
Percentage Rate of the Receivables in the Trust shall not be less than 7.25%,
(iii) the weighted average remaining maturity of the Receivables in the Trust
shall not be greater than 53 months and (iv) the aggregate Starting Receivable
Balance of the Retail Leases in the Trust will not exceed 10.0% of the Aggregate
Starting Receivables Balance.
(y) Selection Criteria. The Designated Receivables were
selected on a random basis from all Receivables satisfying the selection
criteria described herein, and no selection procedures believed to be adverse to
NFRRC or to holders of the Securities issued under the Further Transfer and
Servicing Agreements were utilized in selecting the Designated Receivables from
those Receivables of NFC, Truck Retail Instalment Paper Corp., and Harco Leasing
Company, Inc., its wholly owned subsidiaries, which meet the selection criteria
under this Agreement.
(z) Temporary Interest Free Receivables. Each Designated
Receivable that is a Temporary Interest Free Receivable is an Equal Payment
Fully Amortizing Receivable and has an interest free period ranging up to 12
months after its applicable Cutoff Date.
(aa) No Government Contracts. No Obligor under any of the
Designated Receivables is a governmental authority of the United States or any
state or political subdivision thereof.
SECTION 3.02 Additional Representations and Warranties of
NFC. NFC hereby represents and warrants to NFRRC as of each Purchase Date and as
of the related Closing Date under the Further Transfer and Servicing Agreements,
in its capacity as the seller of the Receivables hereunder, that:
(a) Organization and Good Standing. NFC has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are
-8-
presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Receivables.
(b) Due Qualification. NFC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires or shall require such
qualification.
(c) Power and Authority. NFC has the power and authority to
execute and deliver this Agreement and to carry out its terms; NFC has full
power and authority to sell and assign the Designated Receivables and the
Related Security to NFRRC, has duly authorized such sale and assignment to NFRRC
by all necessary corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by NFC by all necessary corporate
action.
(d) Valid Sale; Binding Obligation. This Agreement, together
with the applicable PA Assignment, when duly executed and delivered, shall (upon
satisfaction of the conditions set forth in Section 4.02(b) hereof relating to
the related Designated Receivables) constitute a valid sale, transfer and
assignment of such Designated Receivables and Related Security, enforceable
against creditors of and purchasers from NFC; and this Agreement, together with
the applicable PA Assignment, when duly executed and delivered, shall (upon
satisfaction of the conditions set forth in Section 4.02(b) hereof relating to
such Designated Receivables) constitute a legal, valid and binding obligation of
NFC enforceable against NFC in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and any PA Assignment, and the fulfillment of the
terms of this Agreement and any PA Assignment shall not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
by-laws of NFC, or any indenture, agreement, mortgage, deed of trust or other
instrument to which NFC is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument (other than this Agreement, any PA Assignment or any Further Transfer
and Servicing Agreement), or violate any law or, to NFC's knowledge, any order,
rule or regulation applicable to NFC of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over NFC or any of its properties.
(f) No Proceedings. There are no proceedings or, to NFC's
knowledge, investigations pending or, to NFC's knowledge, threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over NFC or its properties (i) asserting the
invalidity of this Agreement or any PA Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any PA
Assignment, or (iii) seeking any determination or ruling that might materially
and
-9-
adversely affect the performance by NFC of its obligations under, or the
validity or enforceability of, this Agreement or any PA Assignment.
(g) No Consent. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by NFC of
this Agreement or any PA Assignment or the consummation by NFC of the
transactions contemplated hereby or thereby except as expressly contemplated
herein or therein.
(h) ERISA. No notice of a Lien arising under Title I or
Title IV of ERISA has been filed under Section 6323 (a) of the Code (or any
successor provision) against, or otherwise affecting the assets NFC.
(i) Solvency. NFC is, and after giving effect to the
transactions contemplated to occur on such date will be, solvent.
(j) Investment Company Act. NFC is not, and is not
controlled by, an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the Investment Company
Act.
SECTION 3.03 Representations and Warranties of NFRRC. NFRRC
hereby represents and warrants to NFC as of each Purchase Date:
(a) Organization and Good Standing. NFRRC has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Designated Receivables.
(b) Due Qualification. NFRRC is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualification.
(c) Power and Authority. NFRRC has the power and authority
to execute and deliver this Agreement and to carry out its terms and the
execution, delivery and performance of this Agreement have been duly authorized
by NFRRC by all necessary corporate action.
(d) No Violation. The consummation by NFRRC of the
transactions contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of NFRRC, or any
indenture, agreement, mortgage, deed of trust or other instrument to which NFRRC
is a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement, any PA Assignment or
any Further Transfer and Servicing Agreement), or violate any law or, to NFRRC's
knowledge, any order, rule or regulation applicable to NFRRC of any court or of
any federal or state regulatory body,
-10-
administrative agency or other governmental instrumentality having jurisdiction
over NFRRC or any of its properties.
(e) No Proceedings. There are no proceedings or, to NFRRC's
knowledge, investigations pending or, to NFRRC's knowledge, threatened, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over NFRRC or its properties
(i) asserting the invalidity of this Agreement or any PA Assignment, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by NFRRC of its obligations
under, or the validity or enforceability of, this Agreement or any PA
Assignment.
(f) Binding Obligation. This Agreement shall constitute a
legal, valid and binding obligation of NFRRC enforceable against NFRRC in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(g) No Consent. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by NFRRC
of this Agreement, or the consummation by NFRRC of the transactions contemplated
hereby except as expressly contemplated herein.
SECTION 3.04 Representations and Warranties Regarding
Titling Trust. NFC makes the following representations and warranties as to the
Titling Trust on which NFRRC relies in accepting the Designated Receivables.
Such representations and warranties speak as of the Purchase Date for such
Designated Receivables, and as of the date of the related transfer of such
Designated Receivables under the Further Transfer and Servicing Agreements, and
shall survive the sale, transfer and assignment of such Designated Receivables
to NFRRC and the subsequent assignment and transfer thereof pursuant to the
Further Transfer and Servicing Agreements:
(a) Organization and Good Standing. The Titling Trust is a
statutory business trust duly formed, validly existing and in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Retail Leases.
(b) Due Qualification. The Titling Trust is duly qualified
to do business as a foreign business trust and in good standing under the laws
of each jurisdiction where the character of its property, the nature of its
business or the performance of its obligations make such qualification necessary
and has all powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and for purposes of
the transactions contemplated by the Basic Documents, except to the extent that
the failure to have any such governmental licenses, authorizations, consents or
approvals would not, in the aggregate, have a Material Adverse Effect with
respect to the Titling Trust.
-11-
(c) Power and Authority. The Titling Trust has the power and
authority to execute and deliver the Basic Documents to which it is a party and
to perform its obligations hereunder and the execution, delivery and performance
of the Basic Documents to which it is a party have been duly authorized by the
Titling Trust.
(d) Valid and Binding. Each of the Basic Documents to which
the Titling Trust is a party has been duly executed and delivered by or on
behalf of the Titling Trust and constitutes a legal, valid and binding
obligation of the Titling Trust enforceable against the Titling Trust 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.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement, and the other Basic Documents, and the
fulfillment of the terms thereof 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 Titling Trust Agreement, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Titling
Trust is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement or any other Basic Document), or violate any law or, to
NFC's knowledge, any order, rule or regulation applicable to the Titling Trust
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Titling Trust
or any of its properties.
(f) No Proceedings. There are no proceedings or, to NFC's
knowledge, investigations pending or, to NFC's knowledge, threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Titling Trust or its properties (i)
asserting the invalidity of any Basic Document to which the Titling Trust is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any Basic Document to which the Titling Trust is a party, or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Titling Trust of its obligations under, or the
validity or enforceability of, this Agreement, any PA Assignment or any Basic
Document to which the Titling Trust is a party.
(g) No Consent. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Titling Trust of any Basic Document to which the Titling Trust is a party, or
the consummation by the Titling Trust of the transactions contemplated thereby
except as expressly contemplated herein or therein.
(h) Taxes. The Titling Trust has filed or caused to be filed
all tax returns which are required to be filed by the Titling Trust (with
respect to itself) and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property by any
Governmental Authority (other than any amount the validity of which is being
contested in good faith by appropriate proceedings and with respect to which
reserves in accordance with GAAP have been provided on the books of the Titling
Trust). No notice of any
-12-
Lien in respect of unpaid taxes or assessments (other than a Permitted Lien) has
been filed by any taxing authority against, or otherwise affecting the assets
of, the Titling Trust and remains in effect. The Titling Trust has paid all fees
and expenses required to be paid by it in connection with the conduct of its
business, the maintenance of its existence and its qualification as a foreign
business trust.
(i) ERISA. No notice of a Lien arising under Title I or IV
of ERISA has been filed under Section 6323 (a) of the Code (or any successor
provision) against, or otherwise affecting the assets of the Titling Trust.
(j) Investment Company Act. The Titling Trust is not, and is
not controlled by, an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the Investment Company
Act.
(k) Series 2003-A Portfolio Certificate. The Series 2003-A
Portfolio Certificate has been duly executed and delivered by the General
Interest Trustee in accordance with the Titling Trust Agreement, has been duly
issued in accordance with the Titling Trust Agreement and is entitled to the
benefits afforded by the Titling Trust Agreement.
ARTICLE IV
CONDITIONS
SECTION 4.01 Conditions to Obligation of NFRRC. The
obligation of NFRRC to purchase Designated Receivables and the Related Security
hereunder on any Purchase Date is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations
and warranties of NFC in Section 3.01 regarding such Designated Receivables and
the Related Security being transferred on such Purchase Date, and the
representations and warranties of NFC in Sections 3.02 and 3.04, shall be true
and correct as of such Purchase Date (or if specified as applying to some other
date, as of such date), with the same effect as if then made, and NFC shall have
performed all obligations to be performed by it hereunder on or prior to such
Purchase Date.
(b) No Repurchase Event. No Repurchase Event (as defined in
Section 5.04 below) shall have occurred on or prior to such Purchase Date with
respect to any of such Designated Receivables.
(c) Computer Files Marked. NFC shall, at its own expense, on
or prior to such Purchase Date, (i) indicate in its computer files created in
connection with such Designated Receivables that such Designated Receivables
have been sold to NFRRC pursuant to this Agreement and the related PA Assignment
by NFC and (ii) deliver to NFRRC the Composite Schedule of Receivables certified
by an officer of NFC to be true, correct and complete (as supplemented by the
schedules to the related Subsequent Transfer PA Assignment).
(d) Documents to be Delivered By NFC.
-13-
(i) The PA Assignment. On such Purchase Date, NFC shall
execute and deliver to NFRRC the PA Assignment of the Designated
Receivables and the Related Security.
(ii) Portfolio Certificate. On the Closing Date, NFC shall
deliver the Series 2003-A Portfolio Certificate to or at the direction
of NFRRC.
(iii) Evidence of UCC Filing. On or prior to such Purchase
Date, NFC shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
naming NFC as seller or debtor, naming NFRRC as purchaser or secured
party, naming such Designated Receivables and Related Security as
collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect under the UCC
the sale, transfer, assignment and conveyance of such Designated
Receivables and the Related Security (to the extent it constitutes Code
Collateral) to NFRRC. NFC shall deliver a file-stamped copy, or other
evidence satisfactory to NFRRC of such filing, to NFRRC on or prior to
such Purchase Date.
(iv) Other Documents. On such Purchase Date, NFC shall
provide such other documents as NFRRC may reasonably request.
(e) Funding Period. The Funding Period shall not have
terminated.
(f) Other Transactions. The related transactions
contemplated by the Further Transfer and Servicing Agreements shall be
consummated on or prior to the related Purchase Date (and all conditions
precedent thereto shall be satisfied) to the extent that such transactions are
intended to be substantially contemporaneous with the transactions hereunder.
SECTION 4.02 Conditions To Obligation of NFC. The obligation
of NFC to sell the Designated Receivables to NFRRC hereunder on any Purchase
Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of NFRRC hereunder shall be true and correct as of such Purchase
Date, with the same effect as if then made, and NFRRC shall have performed all
obligations to be performed by it hereunder on or prior to such Purchase Date.
(b) Purchase Price. On each Purchase Date, NFRRC shall pay
to NFC the Purchase Price, payable on such date as provided in Section 2.02 of
this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
NFC agrees with NFRRC as follows:
SECTION 5.01 Conflicts With Further Transfer and Servicing
Agreements. To the extent that any provision of Sections 5.02 through 5.04 of
this Agreement conflicts with any
-14-
provision of the Further Transfer and Servicing Agreements, the Further Transfer
and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title.
(a) Filings. NFC shall prepare and file such financing
statements and cause to be prepared and filed such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of NFRRC under this
Agreement in the Designated Receivables and the Related Security, the Series
2003-A Portfolio Interest and the Series 2003-A Portfolio Certificate and in the
proceeds thereof and hereby authorizes NFRRC to file any such financing
statements or continuation statements relating to all or any part thereof;
provided, however, that, with respect to a Retail Lease, NFC shall not be
obligated to transfer the title to any Financed Vehicle. NFC shall deliver (or
cause to be delivered) to NFRRC file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) Name Change. NFC shall not change its name, identity or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed by NFC in accordance with Section
5.02(a) seriously misleading within the meaning of Section 9-506 of the UCC,
unless it shall have given NFRRC at least 60 days prior written notice thereof
and shall file such financing statements or amendments as may be necessary to
continue the perfection of NFRRC's security interest in the Designated
Receivables and the Related Security.
(c) Jurisdiction of Formation; Maintenance of Offices. NFC
shall give NFRRC at least 60 days prior written notice of any change in its
jurisdiction of formation and shall file such financing statements or amendments
as may be necessary to continue the perfection of NFRRC's security interest in
the Designated Receivables and the Related Security. NFC shall at all times
maintain each office from which it services Designated Receivables and its
jurisdiction of formation within the United States of America.
SECTION 5.03 Other Liens or Interests. Except for the
conveyances hereunder and as contemplated by the Further Transfer and Servicing
Agreements, NFC shall not sell, pledge, assign or transfer the Designated
Receivables and the Related Security, the Series 2003-A Portfolio Interest or
the Series 2003-A Portfolio Certificate to any other Person, or grant, create,
incur, assume or suffer to exist any Lien (except any Permitted Lien) on any
interest therein, and NFC shall defend the right, title and interest of NFRRC
in, to and under the Designated Receivables and Related Security, the Series
2003-A Portfolio Interest and the Series 2003-A Portfolio Certificate against
all claims of third parties claiming through or under NFC.
SECTION 5.04 Repurchase Events. By its execution of the
Further Transfer and Servicing Agreements to which it is a party, NFC shall be
deemed to acknowledge the assignment by NFRRC of such of its right, title and
interest in, to and under this Agreement to the Subsequent Transferee as shall
be provided in the Further Transfer and Servicing Agreements. NFC hereby
covenants and agrees with NFRRC for the benefit of NFRRC and the Interested
Parties, that in the event of (i) a breach of any of NFC's representations and
warranties contained in Section 3.01 hereof with respect to any Designated
Receivable or (ii) a breach by
-15-
NFC of Section 5.03 hereof with respect to any Designated Receivable, the Series
2003-A Portfolio Interest or the Series 2003-A Portfolio Certificate which
breach has a material adverse effect on NFRRC's interest in such Designated
Receivable, the Series 2003-A Portfolio Interest or the Series 2003-A Portfolio
Certificate unless, in either case, such breach shall have been cured in all
material respects (each a "Repurchase Event") as of the second Accounting Date
following NFC's discovery or its receipt of notice of breach (or, at NFC's
election, the first Accounting Date following such discovery), NFC will
repurchase the Designated Receivable (or in the case of the Series 2003-A
Portfolio Interest or Series 2003-A Portfolio Certificate, such Designated
Retail Leases which are then included in the Series 2003-A Portfolio Interest or
Series 2003-A Portfolio Certificate) from the Subsequent Transferee (if the
Subsequent Transferee is then the Owner of such Designated Receivable) on the
related Distribution Date for an amount equal to the Warranty Payment, without
further notice from NFRRC hereunder. Upon the occurrence of a Repurchase Event
with respect to a Designated Receivable for which NFRRC is the Owner, NFC agrees
to repurchase such Designated Receivable from NFRRC for an amount and upon the
same terms as NFC would be obligated to repurchase such Designated Receivable
from the Subsequent Transferee if the Subsequent Transferee was then the Owner
thereof, and upon payment of such amount, NFC shall have such rights with
respect to such Designated Receivable as if NFC had purchased such Designated
Receivable from the Subsequent Transferee as the Owner thereof. It is understood
and agreed that the obligation of NFC to repurchase any Designated Receivable as
to which a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against NFC for such breach available to
NFRRC or any Interested Party.
SECTION 5.05 Indemnification. NFC shall indemnify NFRRC for
any liability as a result of the failure of a Designated Receivable to be
originated in compliance with all requirements of law and for any breach of any
of its representations and warranties contained herein. This indemnity
obligation shall be in addition to any obligation that NFC may otherwise have.
SECTION 5.06 Further Assignments. NFC acknowledges that NFRRC
shall, pursuant to the Further Transfer and Servicing Agreements, sell the
Series 2003-A Portfolio Interest, the Series 2003-A Portfolio Certificate, the
Designated Receivables and the Related Security to the Subsequent Transferee and
assign its rights hereunder to the Subsequent Transferee, subject to the terms
and conditions of the Further Transfer and Servicing Agreements, and that the
Subsequent Transferee may in turn further pledge, assign or transfer its rights
in the Series 2003-A Portfolio Interest, the Series 2003-A Portfolio
Certificate, the Designated Receivables and the Related Security and this
Agreement. NFC further acknowledges that NFRRC may assign its rights under the
Servicing Agreement to the Subsequent Transferee.
SECTION 5.07 Pre-Closing Collections. Within two Business
Days after each Purchase Date, NFC shall transfer to the account or accounts
designated by NFRRC (or by the Subsequent Transferee under the Further Transfer
and Servicing Agreements) all collections (from whatever source) on or with
respect to the Designated Receivables and the Related Security conveyed by NFC
to NFRRC on such Purchase Date pursuant to Section 2.01.
-16-
SECTION 5.08 Limitation on Transfer of International Purchase
Obligations. NFRRC acknowledges and agrees that the rights pursuant to the
International Purchase Obligations are personal to NFC, and only the proceeds of
such rights have been assigned to NFRRC. NFRRC is not and is not intended to be
a third-party beneficiary of such rights and, accordingly, such rights will not
be exercisable by, enforceable by or for the benefit of, or preserved for the
benefit of, NFRRC, the Issuer, the Owner Trustee or the Indenture Trustee.
SECTION 5.09 Sale Treatment. NFC intends to treat each
transfer and assignment described herein as a sale for accounting and tax
purposes.
SECTION 5.10 No Petition; Waiver of Claims.
(a) Notwithstanding any prior termination of the Series
2003-A Portfolio Supplement, NFRRC covenants and agrees that it shall not, prior
to the date which is one year and a day after which all obligations under each
Permitted Financing have been paid in full, acquiesce, petition or otherwise
invoke, or join any other Person in acquiescing, petitioning or otherwise
invoking, against the Titling Trust or any Special Purpose Entity, any
proceeding in court or with any governmental authority for the purpose of (i)
commencing or sustaining a case against the Titling Trust or such Special
Purpose Entity under any federal or state bankruptcy, insolvency or similar law,
or (ii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of all or any substantial part of the
respective property of the Titling Trust or such Special Purpose Entity, or
(iii) ordering the winding up or liquidation of the affairs of the Titling Trust
or such Special Purpose Entity.
(b) Except as otherwise provided in the Titling Trust
Agreement, NFRRC hereby releases all Claims to the Titling Trust Assets
allocated to the General Interest and to each Portfolio Interest other than the
Series 2003-A Portfolio Interest (other than Claims to other Portfolio Interests
obtained under other purchase agreements) whether then or thereafter created
and, in the event that such release is not given effect, to fully subordinate
all Claims it may be deemed to have against the Titling Trust Assets allocated
to the General Interest and each Portfolio Interest other than the Series 2003-A
Portfolio Interest (other than Claims to other Portfolio Interests obtained
under other purchase agreements) whether then or thereafter created.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01 Amendment. This Agreement may be amended from
time to time (subject to any expressly applicable amendment provision of the
Further Transfer and Servicing Agreements) by a written amendment duly executed
and delivered by NFC and NFRRC; provided, however, that this Agreement may not
be amended unless such amendment is in accordance with the provisions of Section
5.01 of the Pooling Agreement as if such Section 5.01 were contained herein and
were applicable to this Agreement. Prior to the execution of any such amendment,
NFC shall furnish written notification of the substance of such amendment to
each of the Rating Agencies.
SECTION 6.02 Survival. The representations, warranties and
covenants of NFC set forth in Article III and Article V of this Agreement shall
remain in full force and effect and
-17-
shall survive each Purchase Date and each Closing under the Further Transfer and
Servicing Agreements.
SECTION 6.03 Notices. All demands, notices and communications
under this Agreement shall be delivered as specified in Appendix B to the
Pooling Agreement.
SECTION 6.04 Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement and each PA
Assignment shall be governed by and construed and enforced in accordance with
the internal laws of the State of Illinois, without giving effect to any choice
of law or conflict provision or rule (whether of the State of Illinois or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
SECTION 6.05 Waivers. No failure or delay on the part of
NFRRC in exercising any power, right or remedy under this Agreement or any PA
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.06 Costs and Expenses. NFC agrees to pay all
reasonable out-of-pocket costs and expenses of NFRRC, including fees and
expenses of counsel, in connection with the perfection as against third parties
of NFRRC's right, title and interest in, to and under the Designated
Receivables, Related Security, the Series 2003-A Portfolio Interest and the
Series 2003-A Portfolio Certificate and the enforcement of any obligation of NFC
hereunder.
SECTION 6.07 Confidential Information. NFRRC agrees that it
shall neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of NFRRC's rights hereunder,
under the Designated Receivables, under the Further Transfer and Servicing
Agreements or as required by law.
SECTION 6.08 Headings. The various headings in this Agreement
are for purposes of reference only and shall not affect the meaning or
interpretation of any provision of this Agreement.
SECTION 6.09 Counterparts. This Agreement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 6.10 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent permitted,
and if not so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Owner.
SECTION 6.11 Further Assurances. NFC and NFRRC agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other more fully to
effect the purposes of this Agreement, including
-18-
the preparation of any financing statements or continuation statements relating
to the Designated Receivables, Related Security, the Series 2003-A Portfolio
Interest and the Series 2003-A Portfolio Certificate for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 6.12 No Third-Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, the Owners
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 6.13 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 6.14 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, NFC 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 any Person to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against NFRRC under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of NFRRC or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of NFRRC.
* * * * *
-19-
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
EXHIBIT A
FORM OF INITIAL PA ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as
of June 5, 2003 (the "Purchase Agreement"), between Navistar Financial
Corporation, a Delaware corporation ("NFC"), and Navistar Financial Retail
Receivables Corporation, a Delaware corporation ("NFRRC"), NFC does hereby sell,
assign, transfer and otherwise convey unto NFRRC, without recourse, all right,
title and interest of NFC in, to and under
(a) the Retail Notes identified on the Schedule of Retail Notes
attached hereto having an aggregate Starting Receivable Balance of
$313,289,382.92 (the "Designated Retail Notes") and the Related Retail Note
Assets associated with the Designated Retail Notes;
(b) the Series 2003-A Portfolio Interest and the beneficial interest
in the Series 2003-A Portfolio Assets, including the Retail Leases identified on
the Schedule of Retail Leases attached hereto having an aggregate Starting
Receivable Balance of $13,027,500.13 (the "Designated Retail Leases" and
together with the Designated Retail Notes, the "Designated Receivables") and the
Related Titling Trust Assets associated with the Designated Retail Leases and
the Series 2003-A Portfolio Certificate; and
(c) the rights, but not the obligations, of NFC under the Lease
Purchase Agreement with respect to the Designated Retail Leases.
The foregoing sale does not constitute and is not intended to result in
any assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This PA Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
* * * * *
A-1
IN WITNESS WHEREOF, the undersigned has caused this PA
Assignment to be duly executed as of June 5, 2003.
NAVISTAR FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
EXHIBIT B
FORM OF SUBSEQUENT TRANSFER PA ASSIGNMENT
For value received, in accordance with the Purchase Agreement,
dated as of __________ __, 200_ (the "Purchase Agreement"), between Navistar
Financial Corporation, a Delaware corporation ("NFC"), and Navistar Financial
Retail Receivables Corporation, a Delaware corporation ("NFRRC"), NFC does
hereby sell, assign, transfer and otherwise convey unto NFRRC, without recourse,
all right, title and interest of NFC in, to and under
(a) the Retail Notes identified on the Schedule of Retail Notes
attached hereto having an aggregate Starting Receivable Balance of
$_______________ (the "Designated Retail Notes") and the Related Retail Note
Assets associated with the Designated Retail Notes;
(b) the beneficial interest the Retail Leases identified on the
Schedule of Retail Leases attached hereto having an aggregate Starting
Receivable Balance of $_______________ (the "Designated Retail Leases" and
together with the Designated Retail Notes, the "Designated Receivables") and the
Related Titling Trust Assets associated with the Designated Retail Leases; and
(c) the rights, but not the obligations, of NFC under the Lease
Purchase Agreement with respect to the Designated Retail Leases.
The foregoing sale does not constitute and is not intended to result in
any assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This Subsequent Transfer PA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
* * * * *
B-1
IN WITNESS WHEREOF, the undersigned has caused this Subsequent
Transfer PA Assignment to be duly executed as of _____________ __, 200_.
NAVISTAR FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
APPENDIX A
Additional Representations and Warranties
1. This Agreement, the Pooling Agreement and the Indenture create a valid
and continuing security interest (as defined in the applicable UCC) in
the Designated Receivables in favor of NFRRC, the Issuer and the
Indenture Trustee, respectively, which security interest is prior to all
other Liens, and is enforceable as such as against creditors of and
purchasers from NFC, NFRRC and the Issuer, respectively.
2. With respect to Retail Notes, NFC has taken all steps necessary to
perfect its security interest against each Obligor in the property
securing the Designated Receivables.
3. The Designated Receivables constitute "tangible chattel paper" within
the meaning of the applicable UCC.
4. On the Closing Date and on the applicable Subsequent Transfer Date, NFC
owns and has good and marketable title to the related Designated Retail
Notes free and clear of any Lien, claim or encumbrance of any Person,
other than Permitted Liens. Upon execution and delivery to NFC of the
Lease Purchase Agreement and the Series 2003-A Portfolio Certificate. On
the Closing Date and on the applicable Subsequent Transfer Date, NFC
shall own and will have good and marketable title to the related
Designated Retail Leases free and clear of any Lien, claim or
encumbrance of any Person, other than Permitted Liens.
5. NFC has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Designated Receivables granted to NFRRC
hereunder, the Issuer under the Pooling Agreement and the Indenture
Trustee under the Indenture.
6. Other than the security interests granted pursuant to the Basic
Documents, none of NFC, NFRRC or the Issuer has pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Designated Receivables. To NFC's knowledge, none of NFC, NFRRC or the
Issuer has authorized the filing of, and NFC is not aware of, any
financing statements against NFC, NFRRC or the Issuer that include a
description of collateral covering the Designated Receivables other than
any financing statements relating to the security interests granted
under the Basic Documents or that has been terminated. NFC is not aware
of any judgment or tax lien filings against NFC, NFRRC or the Issuer.
7. NFC, as Servicer has in its possession all original copies of the
documents that constitute or evidence the Designated Receivables. The
documents that constitute or evidence the Designated Receivables do not
have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than NFRRC. All
financing statements filed or to be filed against NFC, NFRRC or the
Issuer in favor of NFRRC, the Issuer or the Indenture Trustee,
respectively in connection herewith
App.-1
describing the Designated Receivables contain a statement other than as
described in the Basic Documents, to the following effect: "A purchase
of or security interest in any collateral described in this financing
statement will violate the rights of the Noteholders."
App.-2
