EXHIBIT 4.1
Execution Copy
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POOLING AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
NAVISTAR FINANCIAL 2003-A OWNER TRUST
ISSUER
DATED AS OF JUNE 5, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................................1
SECTION 1.01 Definitions...................................................................1
ARTICLE II CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF CERTIFICATES......................................1
SECTION 2.01 Conveyance of Initial Receivables.............................................1
SECTION 2.02 Conveyance of Subsequent Receivables..........................................3
SECTION 2.03 Custody of Receivable Files...................................................5
SECTION 2.04 Acceptance by Issuer; Limitation on Transfer of
International Purchase Obligations ...........................................6
SECTION 2.05 Representations and Warranties as to the Receivables..........................6
SECTION 2.06 Repurchase of Receivables Upon Breach of Warranty.............................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER.....................................................7
SECTION 3.01 Representations and Warranties of the Seller..................................7
SECTION 3.02 Liability of Seller...........................................................9
SECTION 3.03 Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Amendment of Certificate of
Incorporation.................................................................9
SECTION 3.04 Limitation on Liability of Seller and Others.................................10
SECTION 3.05 Seller May Own Securities....................................................10
ARTICLE IV TERMINATION......................................................................................10
SECTION 4.01 Optional Purchase of All Receivables.........................................10
SECTION 4.02 Termination..................................................................11
ARTICLE V MISCELLANEOUS PROVISIONS..........................................................................11
SECTION 5.01 Amendment....................................................................11
SECTION 5.02 Protection of Title to Owner Trust Estate....................................13
SECTION 5.03 Notices......................................................................14
SECTION 5.04 Governing Law................................................................14
SECTION 5.05 Severability of Provisions...................................................15
SECTION 5.06 Assignment...................................................................15
SECTION 5.07 Third-Party Beneficiaries....................................................15
SECTION 5.08 Separate Counterparts........................................................15
SECTION 5.09 Headings and Cross-References................................................15
SECTION 5.10 Assignment to Indenture Trustee..............................................15
SECTION 5.11 No Petition Covenants; Waiver of Claims......................................15
SECTION 5.12 Limitation of Liability of the Trustees......................................16
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EXHIBIT A Locations of Composite Schedule of Receivables
EXHIBIT B Form of Initial PSA Assignment
EXHIBIT C Form of Subsequent Transfer PSA Assignment
APPENDIX A Defined Terms and Rules of Construction
APPENDIX B Notice Addresses and Procedures
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POOLING AGREEMENT
THIS POOLING AGREEMENT is made as of June 5, 2003 by and between
Navistar Financial Retail Receivables Corporation, a Delaware corporation
("NFRRC" and, in its capacity as the Seller hereunder, the "Seller") and
Navistar Financial 2003-A Owner Trust, a Delaware statutory trust (the
"Issuer").
WHEREAS, NFC has sold the Initial Receivables, and has agreed to sell
Subsequent Receivables, to the Seller pursuant to the Purchase Agreement.
WHEREAS, the Seller desires to sell the Initial Receivables and
Subsequent Receivables (collectively, the "Receivables"), to the Issuer in
exchange for the Securities and the payment of funds withdrawn from the
Pre-Funding Account pursuant to the terms of this Agreement.
WHEREAS, the Seller and the Issuer wish to set forth the terms pursuant
to which the Receivables are to be sold by the Seller to the Issuer.
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 1.01 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
Agreement as it may be amended, supplemented (whether by Subsequent Transfer PSA
Assignment or otherwise) 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 2.01 Conveyance of Initial Receivables. In
consideration of the Issuer'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 the Issuer, without recourse (except as provided in
Section 2.06), pursuant to an assignment in the form attached hereto as Exhibit
B (the "Initial PSA Assignment"), all right, title and interest of the Seller
in, to and under:
(a) the Retail Notes identified on the Schedule of Retail
Notes to the Initial PSA Assignment delivered to the Issuer and the Related
Retail Note Assets with respect to those Retail Notes;
(b) the Series 2003-A Portfolio Interest, the Series 2003-A
Portfolio Certificate 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 PSA Assignment delivered to the Issuer and the Related Titling
Trust Assets with respect to those Retail Leases;
(c) the rights, but not the obligations, of NFC under the
Lease Purchase Agreement and the Initial LPA Assignment with respect to the
Retail Leases included in the Initial Receivables; and
(d) the rights, but not the obligations, of the Seller under
the Purchase Agreement and the Initial PA Assignment pursuant to Section 2.01 of
the Purchase Agreement with respect to the Initial Receivables.
In addition, on the Closing Date the Seller shall deposit the Reserve Account
Initial Deposit into the Reserve Account, the Pre-Funding Account Initial
Deposit into the Pre-Funding Account and the Negative Carry Account Initial
Deposit into the Negative Carry Account. It is the intention of the Seller that
the transfer and assignment contemplated by this Section 2.01 shall constitute a
sale of the Initial Receivables, the Series 2003-A Portfolio Interest and the
Series 2003-A Portfolio Certificate from the Seller to the Issuer 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 intends 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 Issuer 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 lease payments and principal and interest payments in respect of the Initial
Receivables included in the assets conveyed pursuant to this Section 2.01 and
all other monies payable under the Initial 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.
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SECTION 2.02 Conveyance of Subsequent Receivables. (a)
Subject to satisfaction of the conditions set forth in Section 2.02(b) below, in
consideration of the Issuer's delivery on the related Subsequent Transfer Date
to or upon the order of the Seller of the amount described in Section 8.11(a) of
the Indenture to be delivered to the Seller, the Seller does hereby agree to
sell, transfer, assign, set over and otherwise convey to the Issuer, without
recourse (except as provided in Section 2.06, pursuant to an assignment in
substantially the form of Exhibit C (a "Subsequent Transfer PSA Assignment"),
all right, title and interest of the Seller in, to and under:
(i) the Retail Notes identified on the Schedule of
Retail Notes to such Subsequent Transfer PSA Assignment
delivered to the Issuer and the Related Retail Note Assets with
respect to those Retail Notes;
(ii) the beneficial interest in the Series 2003-A
Portfolio Assets, including the Retail Leases identified on the
Schedule of Retail Leases to such Subsequent Transfer PSA
Assignment delivered to the Issuer and the Related Titling Trust
Assets with respect to those Retail Leases;
(iii) the rights, but not the obligations, of NFC
under the Lease Purchase Agreement and the Subsequent LPA
Assignment with respect to the Retail Leases included in those
Subsequent Receivables; and
(iv) the rights, but not the obligations, of the
Seller under the Purchase Agreement and the Subsequent Transfer
PA Assignment pursuant to Section 2.01 of the Purchase Agreement
with respect to those Subsequent Receivables.
It is the intention of the Seller that each transfer and assignment contemplated
by this Section 2.02 shall constitute a sale of the related Subsequent
Receivables from the Seller to the Issuer and the beneficial interest in and
title to the assets conveyed pursuant to the Subsequent Transfer PSA Assignment
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 each Subsequent Transfer 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 the related Subsequent
Transfer PSA Assignment received by the Seller pursuant to Section 5.07 of the
Purchase Agreement. The Seller intends to treat each 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 any
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 Issuer 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 the related Subsequent Transfer PSA Assignment, and
the Seller hereby grants such security interest and (ii) the assets conveyed
pursuant to such Subsequent Transfer PSA Assignment 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 such Subsequent Transfer PSA Assignment, including the immediate and
continuing right to claim for, collect, receive and give receipt for lease
payments and principal and interest payments in respect of the Subsequent
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Receivables included in the assets conveyed pursuant to such Subsequent Transfer
PSA Assignment and all other monies payable under the Subsequent Receivables
conveyed pursuant to such Subsequent Transfer PSA Assignment, 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 such Subsequent Transfer PSA Assignment. For purposes of
such grant, each such Subsequent Transfer PSA Assignment, together with this
Agreement, shall constitute a security agreement under the UCC.
(b) The Seller shall transfer to the Issuer Subsequent
Receivables and the other property and rights related thereto described in
Section 2.02(a) above only upon the satisfaction of each of the following
conditions precedent on or prior to the related Subsequent Transfer Date:
(i) the Funding Period shall not have terminated;
(ii) each of the representations and warranties made
by the Seller pursuant to Section 2.05 with respect to such Subsequent
Receivables shall be true and correct as of the related Subsequent
Transfer Date with the same effect as if then made, and the Seller shall
have performed all obligations to be performed by it hereunder on or
prior to such Subsequent Transfer Date;
(iii) the Seller shall have delivered to the Owner
Trustee, the Indenture Trustee and the Rating Agencies a duly executed
Subsequent Transfer PSA Assignment, including the Schedule of Retail
Notes and the Schedule of Retail Leases included in such Subsequent
Receivables (which schedules shall be deemed to supplement the existing
Composite Schedule of Receivables in effect at such time);
(iv) the applicable Reserve Account Subsequent
Transfer Deposit for such Subsequent Transfer Date shall have been
deposited in the Reserve Account pursuant to Section 8.10(a) of the
Indenture;
(v) the Seller shall, at its own expense, on or
prior to each Subsequent Transfer Date indicate in its computer files
that the Subsequent Receivables conveyed on such date have been sold to
the Issuer pursuant to this Agreement and the related Subsequent
Transfer PSA Assignment;
(vi) the Seller shall have taken any action required
to maintain the first priority perfected ownership interest of the
Issuer in the Owner Trust Estate and the first priority perfected
security interest of the Indenture Trustee in the Collateral;
(vii) The Receivables in the Trust (after giving
effect to the conveyance of the Subsequent Receivables to the Trust on
such Subsequent Transfer Date) shall meet the following criteria: (A)
the weighted average Annual Percentage Rate of the Receivables in the
Trust shall not be less than 7.25%, (B) the weighted average remaining
maturity of the Receivables in the Trust shall not be greater than 53
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months, (C) the aggregate Receivable Balance of all Receivables owing
from a single Obligor shall not be more than 2.00% of the aggregate
Receivable Balance of all Receivables in the Trust, and (D) the
Aggregate Starting Receivable Balance of all Retail Leases in the Trust
shall not exceed 10.00% of the Aggregate Starting Receivable Balance;
(viii) the Seller shall have delivered to the Indenture
Trustee and the Owner Trustee an Officers' Certificate confirming the
satisfaction of the conditions specified in this Section 2.02(b);
(ix) the Seller shall have delivered to the Trust,
the Indenture Trustee and the Rating Agencies an Opinion of Counsel with
respect to the transfer of such Subsequent Receivables substantially in
the form of the Opinion of Counsel delivered to the Rating Agencies on
the Closing Date;
(x) the Seller shall have delivered to the Owner
Trustee and the Indenture Trustee written confirmation from an
independent public accounting firm that, as of the applicable Subsequent
Cutoff Date, such Subsequent Receivables satisfied the eligibility
criteria described in Sections 3.01(a)(iv), (a)(v), (s), (t), (w), and
(x) of the Purchase Agreement; and
(xi) Each Retail Lease has been allocated to the
Series 2003-A Portfolio Interest in accordance with the terms of the
Titling Trust Documents.
(c) The Seller covenants to transfer to the Issuer pursuant
to Section 2.02(a) before the termination 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 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, the Seller
shall be obligated to pay to the Issuer on the Transfer Date immediately
preceding such Distribution Date an amount equal to the Noteholders' Prepayment
Premium with respect to each class of Notes or such lesser amount that the
Seller actually receives from NFC under Section 2.04 of the Purchase Agreement
in respect of NFC's breach thereof; provided, however, that the foregoing shall
be the sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee and
Financial Parties with respect to a failure of the Seller to comply with this
covenant.
SECTION 2.03 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 Servicing Agreement with NFC,
pursuant to which the Seller shall revocably appoint NFC as the Custodian, and
NFC 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 Trust, as of the Closing Date with respect to
each Initial Receivable, and as of the related Subsequent Transfer Date with
respect to each Subsequent Receivable:
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(a) the fully executed original of the Retail Note or Retail
Lease 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) if such Receivable is a Retail Note, 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;
(e) if such Receivable is a Retail Lease, the Certificate of
Title and such other documents that NFC is required to maintain pursuant to
Section 3.6 of the Titling Trust Servicing Agreement; and
(f) 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.
SECTION 2.04 Acceptance by Issuer; Limitation on Transfer of
International Purchase Obligations. The Issuer does hereby accept all
consideration conveyed by the Seller pursuant to Sections 2.01 and 2.02, and
declares that the Issuer 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 Issuer acknowledges and agrees that (a) the rights
pursuant to the International Purchase Obligations are personal to NFC and only
the proceeds of such rights have been assigned to the Issuer hereunder and, with
respect to the Retail Notes and Related Retail Note Assets, by NFC to NFRRC
under the Purchase Agreement and from NFRRC to the Issuer hereunder and with
respect to Retail Leases and Related Titling Trust Assets, by Harco Leasing to
NFC under the Lease Purchase Agreement, from NFC to NFRRC under the Purchase
Agreement and from NFRRC to the Issuer hereunder, (b) neither the Issuer nor the
Indenture Trustee is or is 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 Issuer or the
Indenture Trustee. The Issuer hereby agrees and accepts the appointment and
authorization of NFC as Servicer pursuant to the Servicing Agreement. The
parties agree that this Agreement (including each PSA Assignment), the Servicing
Agreement, the Indenture and the Trust Agreement constitute the Further Transfer
and Servicing Agreements.
SECTION 2.05 Representations and Warranties as to the
Receivables. Pursuant to Sections 2.01(d) and 2.02(a)(iv), the Seller assigns to
the Issuer 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 Issuer 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, in the
case of the Initial Receivables, and as of the
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related Subsequent Transfer Date, in the case of Subsequent Receivables. The
Seller further acknowledges that the Issuer is relying on the representations
and warranties of the Seller under this Agreement and of NFC under the Purchase
Agreement in accepting the Receivables, the Series 2003-A Portfolio Interest and
the Series 2003-A Portfolio Certificate in trust and executing and delivering
the Securities. The foregoing representation and warranty speaks as of the
Closing Date, in the case of the Initial Receivables, and as of the related
Subsequent Transfer Date, in the case of Subsequent Receivables, but shall
survive the sale, transfer and assignment of the Receivables, the Series 2003-A
Portfolio Interest and the Series 2003-A Portfolio Certificate to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
SECTION 2.06 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 Section 3.01(j) of the Purchase
Agreement, irrespective of any limitation regarding knowledge of NFC) or in
Section 2.05 or Section 3.01 of this Agreement that materially and adversely
affects the interests of the Financial Parties 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 or notice), 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 3.01, the Seller shall
repurchase such Receivable from the Issuer on the related Distribution Date.
Neither the Owner Trustee nor the Issuer 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 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 3.01 Representations and Warranties of the Seller.
The Seller makes the following representations and warranties as to itself on
which the Issuer is relying in acquiring the Receivables, the Series 2003-A
Portfolio Interest and the Series 2003-A Portfolio Certificate hereunder and
issuing the Securities under the other Further Transfer and Servicing
Agreements. The following representations and warranties speak as of the Closing
Date in the case of the Initial Receivables and as of the applicable Subsequent
Transfer Date in the case of the Subsequent Receivables, but in each case shall
survive the sale, transfer and assignment of such Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with
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power and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted, and had
at all relevant times, and now has, power, authority and legal right to acquire
and own the Receivables;
(b) Due Qualification. The Seller 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. The Seller 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 3.01, the "applicable Further
Transfer and Servicing Agreements") and to carry out the respective terms of
such agreements and has the power and authority to sell and assign the property
to be sold and assigned to and deposited with the Issuer as part of the Owner
Trust Estate and has duly authorized such sale and assignment to the Issuer by
all necessary corporate action; and the execution, delivery and performance by
the Seller of the applicable Further Transfer and Servicing Agreements have been
duly authorized by the Seller by all necessary corporate action;
(d) Binding Obligations. The applicable Further Transfer and
Servicing Agreements, when duly executed and delivered, shall constitute a
legal, valid and binding obligation of the Seller enforceable against the Seller
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 by the Seller of the
transactions contemplated by the applicable Further Transfer and Servicing
Agreements and the fulfillment of the terms of such agreements by the Seller
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 the Seller, or any indenture,
agreement or other instrument to which the Seller 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 the Seller's knowledge, any order, rule or regulation
applicable to the Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties;
(f) No Proceedings. There are no proceedings or, to the
Seller's knowledge, investigations pending or, to the Seller's knowledge,
threatened before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the Seller or
its properties (i) asserting the invalidity of the applicable Further Transfer
and Servicing Agreements, any Securities issued pursuant thereto and the
Administration Agreement, (ii) seeking to prevent the issuance of such
Securities or the
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consummation of any of the transactions contemplated by the applicable Further
Transfer and Servicing Agreements or the Administration Agreement, or (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the validity or
enforceability of, such Securities, the applicable Further Transfer and
Servicing Agreements or the Administration Agreement;
(g) Good Title. On the date hereof, the Seller 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 PSA
Assignment by the Seller, 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, the Issuer, 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 the Seller to the Issuer
has been perfected. On the date hereof, the Seller has good title to each Retail
Note free and clear of all Liens (other than Permitted Liens and Liens that will
be released as of such transfer). On the date hereof, good and valid title to
each such Retail Note will be validly and effectively conveyed to, and vested
in, the Issuer, free and clear of all Liens, other than Permitted Liens, and the
transfer of such Retail Note by the Seller to the Issuer has been perfected
under the UCC;
(h) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Issuer 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
(i) Valid Sale. This Agreement and the Initial PSA
Assignment constitute, and each Subsequent Transfer PSA Assignment when duly
executed and delivered shall constitute, a valid sale, transfer and assignment
of the Purchased Property transferred thereby, enforceable against creditors of
and purchasers from the Seller.
SECTION 3.02 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 3.03 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 3.03 to the Rating
Agencies.
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(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 a majority of the Outstanding Amount of the Controlling Class
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 3.04 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 3.05 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 IV
TERMINATION
SECTION 4.01 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 Aggregate Starting 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 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 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
- 10 -
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 4.02 Termination.
(a) 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).
(b) 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 V
MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment.
(a) This Agreement may be amended by the Seller and the
Issuer with the consent of the Indenture Trustee, but without the consent of any
of the Financial Parties, (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 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 Financial
Parties.
(b) This Agreement may also be amended from time to time by
the Seller and the Issuer 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 Controlling Class as of the
- 11 -
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 5.01 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 Financial Parties; 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 5.06) 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
Controlling Class 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 Financial Parties 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 Financial
Parties pursuant to Section 5.01(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 Financial Parties provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Financial Parties 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 Section 5.02(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.
- 12 -
SECTION 5.02 Protection of Title to Owner Trust Estate.
(a) The Seller 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 the Issuer under this
Agreement in the Receivables, the Series 2003-A Portfolio Interest and the
Series 2003-A Portfolio Certificate and the Indenture Trustee's security
interest in the Receivables, the Series 2003-A Portfolio Interest and the
Portfolio Certificate under the Indenture and hereby authorizes the Issuer to
file such financing statements or continuation statements relating to all or any
part thereof; provided, however, that, with respect to a Retail Lease, the
Seller shall not be obligated to transfer the titles to any Financed Vehicle.
The Seller 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) The Seller 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 in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-506 of the UCC, unless it
shall have given each Trustee at least 60 days prior written notice thereof.
(c) The Seller shall give each Trustee 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 the Issuer's security interest in the Designated Receivables and
the Related Security. The Seller shall at all times maintain its jurisdiction of
formation within the United States of America.
(d) The Seller will cause the Servicer to 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 in respect of such Receivable.
(e) The Seller will cause the Servicer to maintain its
computer systems so that, from and after the time of sale under this Agreement
of the Receivables to the Issuer, 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 Issuer and has been pledged by the Issuer to
the Indenture Trustee. Indication of the Issuer's ownership of a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Receivable shall have been paid in full, repurchased by the
Seller, purchased by the Servicer or become a Liquidating Receivable.
(f) If at any time the Seller proposes to sell, grant a
security interest in, or otherwise transfer any interest in truck, truck
chassis, bus and trailer receivables to any prospective purchaser, lender or
other transferee, the Seller shall give to such prospective
- 13 -
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 Issuer and has been pledged by the Issuer to the
Indenture Trustee unless such Receivable has been paid in full, repurchased by
the Seller or purchased by the Servicer.
(g) The Seller will cause the Servicer to 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 Seller will cause the Servicer to 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
Composite 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
Composite Schedule of Receivables for examination by interested parties during
normal business hours at their respective offices located at the addresses set
forth in Section 5.03.
(i) The Seller will 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 the Issuer and
the Indenture Trustee in the Receivables, the Series 2003-A Portfolio Interest
and the Series 2003-A Portfolio Certificate 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 5.03 Notices. All demands, notices and communications
upon or to the Seller either Trustee or the Rating Agencies under this Agreement
shall be delivered as specified in Appendix B hereto.
SECTION 5.04 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 shall be governed by the
laws of the State of New York.
- 14 -
SECTION 5.05 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 5.06 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 Controlling Class 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 5.07 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 this Article V, no other Person shall
have any right or obligation hereunder.
SECTION 5.08 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 5.09 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 5.10 Assignment to Indenture Trustee. The Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer 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
Issuer in, to and under the Owner Trust Estate and/or the assignment of any or
all of the Issuer's rights and obligations hereunder to the Indenture Trustee.
SECTION 5.11 No Petition Covenants; Waiver of Claims.
(a) Notwithstanding any prior termination of this Agreement
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 Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer 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 Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
- 15 -
(b) Notwithstanding any prior termination of the Series
2003-A Portfolio Supplement, the Issuer 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.
(c) Except as otherwise provided in the Titling Trust
Agreement, as may be amended, restated and supplemented from time to time, the
Issuer 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 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 whether then or thereafter created.
SECTION 5.12 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 Issuer 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 Issuer.
(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 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 Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer 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 Issuer. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder, or in the performance of any duties or obligations of the Issuer
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.
* * * * *
- 16 -
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.
NAVISTAR FINANCIAL 2003-A OWNER TRUST
By: 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
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION, as Seller
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: 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
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
EXHIBIT A
LOCATIONS OF COMPOSITE SCHEDULE OF RECEIVABLES
The Composite 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
A-1
EXHIBIT B
FORM OF INITIAL PSA ASSIGNMENT
For value received, in accordance with the Pooling Agreement, dated as
of June 5, 2003 (the "Pooling Agreement"), between Navistar Financial Retail
Receivables Corporation, a Delaware corporation (the "Seller") and Navistar
Financial 2003-A Owner Trust (the "Issuer"), the Seller does hereby sell,
assign, transfer and otherwise convey unto the Issuer, without recourse, all
right, title and interest of the Seller in, to and under (a) the Retail Notes
identified on the Schedule of Retail Notes attached hereto having an aggregate
Starting Receivable Balance of $______ and the Related Retail Note Assets with
respect to those Retail Notes; (b) the Series 2003-A Portfolio Interest, the
Series 2003-A Portfolio Certificate 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 $______ and the Related Titling Trust Assets with respect to those Retail
Leases; (c) the rights, but not the obligations, of NFC under the Lease Purchase
Agreement with respect to the Retail Leases included in the Initial Receivables;
and (d) the Seller's rights, but not its obligations, under the Purchase
Agreement and the Initial PA Assignment pursuant to Section 2.01 of the Purchase
Agreement with respect to the Initial Receivables.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of the undersigned to the
Obligors, Dealers, insurers or any other Person in connection with the Initial
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This Initial PSA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Pooling Agreement and is to be governed by the Pooling
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling Agreement.
* * * * *
B-1
IN WITNESS WHEREOF, the undersigned has caused this Initial PSA
Assignment to be duly executed as of June 5, 2003.
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
By:
---------------------------------------------
Name:
Title:
B-2
EXHIBIT C
FORM OF SUBSEQUENT TRANSFER PSA ASSIGNMENT
For value received, in accordance with the Pooling Agreement, dated as
of June 5, 2003 (the "Pooling Agreement"), between Navistar Financial Retail
Receivables Corporation, a Delaware corporation (the "Seller"), and Navistar
Financial 2003-A Owner Trust (the "Issuer"), the Seller does hereby sell,
assign, transfer and otherwise convey unto the Issuer, without recourse, all
right, title and interest of the Seller in, to and under (a) the Retail Notes
identified on the Schedule of Retail Notes attached hereto (which shall
supplement the Composite Schedule of Receivables) having an aggregate Starting
Receivable Balance of $______ and the Related Retail Note Assets with respect to
those Retail Notes; (b) the beneficial interest in the Series 2003-A Portfolio
Assets, including the Retail Leases identified on the Schedule of Retail Leases
attached hereto (which shall supplement the Composite Schedule of Receivables)
having an aggregate Starting Receivable Balance of $______ and the Related
Titling Trust Assets with respect to those Retail Leases; (c) the rights, but
not the obligations, of NFC under the Lease Purchase Agreement with respect to
the Retail Leases included in those Subsequent Receivables; and (d) the Seller's
rights, but not its obligations, under the Purchase Agreement and the Subsequent
Transfer PA Assignment pursuant to Section 2.01 of the Purchase Agreement with
respect to those Subsequent Receivables.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Issuer of any obligation of the undersigned to the
Obligors, Dealers, insurers or any other Person in connection with the
Subsequent Receivables assigned hereby, the agreements with Dealers, any
Insurance Policies or any agreement or instrument relating to any of them.
This Subsequent Transfer PSA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Pooling Agreement and is to be governed by the Pooling
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling Agreement.
* * * * *
C-1
IN WITNESS WHEREOF, the undersigned has caused this Subsequent
Transfer PSA Assignment to be duly executed as of __________________, 200_.
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
C-2
APPENDIX A
PART I - DEFINITIONS
All terms used in this Appendix shall have the defined meanings set forth in
this Part I when used in the Basic Documents, unless otherwise defined therein.
Accountants' Report: As defined in Section 3.02 of the 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 Trust, all
payments received by the Servicer from or for the account of the Obligor on or
after the applicable Cutoff Date) except for any Overdue Payments or
Supplemental Servicing Fees.
Administration Agreement: That certain Administration Agreement, dated
as of the Closing Date among NFC, as Administrator, the Trust and the Indenture
Trustee, as amended, modified 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)
that is a Retail Note, 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, (ii) the amount of any reimbursements made pursuant
to the last sentence of Section 2.14 of the Servicing Agreement with respect to
such Administrative Receivable, (iii) all past due Scheduled Payments with
respect to which a Monthly Advance has not been made minus (iv) the Rebate minus
(v) any Liquidation Proceeds with respect to such Administrative Receivable to
the extent applied on or prior to the Accounting Date that are not reflected in
items (i) through (iii) and (b) that is a Retail Lease, 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, including the amount of
any TRAC Payment or the Obligor's purchase option, (ii) the amount of any
reimbursements made pursuant to the last sentence of Section 2.14 of the
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
minus (iv) any Unearned Income minus (v) any Liquidation Proceeds with respect
to such Administrative Receivable to the extent applied on or prior to the
Accounting Date that are not reflected in items (i) through (iii).
App.A-1
Administrative Receivable: As defined in Section 2.08 of the 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 Issuer maintained pursuant to Section
3.2 of the Indenture.
Aggregate Losses: With respect to any calendar month, the sum of (i) the
aggregate of the Receivable Balances of all Receivables newly designated during
such calendar month 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
calendar month 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
Receivables Balances of all outstanding Receivables (other than Liquidating
Receivables).
Aggregate Starting Receivables Balance: As of any date of determination,
the aggregate of the Starting Receivable Balances of the Initial Receivables as
of the Initial Cutoff Date, which is $326,316,883.05 plus the aggregate of the
Starting Receivable Balances (as of the related Subsequent Cutoff Date) for all
Subsequent Receivables sold to the Issuer on or prior to such date of
determination.
Annual Percentage Rate or APR: In the case of Retail Notes other than a
Temporary Interest Free Receivable, the annual percentage rate specified in the
Contract related to such Retail Note and, in the case of Retail Leases or
Temporary Interest Free Receivables, the implicit interest rate in the Contract
related to such Retail Lease or Retail Note calculated as an annual percentage
rate on a constant yield to maturity basis.
App.A-2
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.
Assignment: Any LPA Assignment, PA Assignment or PSA Assignment.
Authenticating Agent. JPMorgan Chase Bank or any successor appointed by
the Owner Trustee.
Authorized Officer: With respect to the Issuer, any officer of the Owner
Trustee who is authorized to act for the Owner Trustee in matters relating to
the Issuer 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 Issuer 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)
and with respect to any other Person, a Vice President or more senior officer of
such Person who is authorized to act for such Person with respect to such
matters.
Available Purchase Amount: As of any Subsequent Transfer Date, the
excess, if any, of $500,000,000.00 over the Aggregate Starting Receivables
Balance on (and before giving effect to any transfers of Receivables on) such
Subsequent Transfer Date.
Backup Servicer: As defined in Section 6.06(a) of the Servicing
Agreement.
Backup Servicer Account: As defined in Section 6.06(b) of the Servicing
Agreement.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
Purchase Agreement, each PA Assignment, the Pooling Agreement, each PSA
Assignment, the Administration Agreement, the Note Depository Agreement, the
Indenture (including any supplements thereto), the Servicing Agreement, the
Lease Purchase Agreement, each LPA Assignment, the Titling Trust Documents, each
Schedule of Retail Notes and Schedule of Retail Loans and the other documents
and certificates delivered in connection with each of the foregoing from time to
time.
Basic Servicing Fee: As defined in Section 2.09 of the Servicing
Agreement.
Basic Servicing Fee Rate: As defined in Section 2.09 of the Servicing
Agreement.
Benefit Plan: Any one of (a) an employee benefit plan (as described in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity.
App.A-3
Book-Entry Note: Notes in which ownership and transfers 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 are
authorized or required by law to close.
Certificate: Any one of the certificates executed by the Issuer 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 of Title: With respect to a Financed Vehicle, the
certificate of title or other evidence of ownership of such Financed Vehicle
issued by a registrar of titles in the jurisdiction in which such Financed
Vehicle is registered.
Certificate of Trust: The certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement filed for the
Trust pursuant to Section 3810(a) of the Statutory Trust Statute.
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: Shall have, as of any date, 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.
Claim: As defined in the Titling 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 on such
Distribution Date and a fraction, the numerator
App.A-4
of which is the actual number of days 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 Notes on the preceding
Distribution Date after giving effect to all payments of principal in respect of
such class of 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 Notes and a fraction,
the numerator of which is 30 (or, in the case of the first Distribution Date,
the number of days from the Closing Date to but excluding June 15, 2003), 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 1.25% Asset Backed Notes in the aggregate
principal amount of $85,000,000 issued pursuant to the Indenture.
Class A-2 Notes: The Class A-2 1.31% Asset Backed Notes in the aggregate
principal amount of $175,000,000 issued pursuant to the Indenture.
Class A-3 Notes: The Class A-3 1.73% Asset Backed Notes in the aggregate
principal amount of $113,000,000 issued pursuant to the Indenture.
Class A-4 Notes: The Class A-4 2.24% Asset Backed Notes in the aggregate
principal amount of $108,250,000 issued pursuant to the Indenture.
Class B Notes: The Class B 3.08% Asset Backed Notes in the aggregate
principal amount of $18,750,000 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
App.A-5
Distribution Date, the number of days from the Closing Date to but excluding
June 15, 2003) and the denominator of which is 360.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Clearing Agency shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the New York
UCC.
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: As defined in Section 2.03 of the Purchase Agreement.
Closing Date: June 5, 2003.
Code: The Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
Code Collateral: Any property a security interest in which may be
perfected by filing under the applicable UCC.
Collateral: As defined in the granting clause of the Indenture.
Collateral Account: As defined in the Titling Trust Agreement.
Collateral Agency Agreement: As defined in the Titling Trust Agreement.
Collateral Agent: As defined in the Titling Trust Agreement.
Collateral Supplement: A supplement to the Collateral Agency Agreement
related to the Series 2003-A Portfolio Interest executed in accordance
therewith.
Collected Amount: With respect to any Distribution Date, the sum of the
following amounts with respect to the related Monthly Period: (i) all
Collections received by the Servicer during such Monthly Period (other than less
than Full Prepayments with respect to Retail Leases, which amounts will be held
in the Collection Account and applied in the Monthly Period related to the
prepaid Scheduled Payment), (ii) all Monthly Advances made by the Servicer
pursuant to Section 2.14 of the Servicing Agreement, and (iii) all Warranty
Payments and Administrative Purchase Payments or the Optional Purchase Proceeds;
less an amount equal to the aggregate of the amounts representing reimbursement
for Outstanding Monthly Advances and Liquidation Expenses pursuant to Section
8.2(b)(i) of the Indenture.
Collection Account: The account designated as such, established and
maintained pursuant to Section 2.02(a)(i) of the Servicing Agreement.
App.A-6
Collections: All amounts received from Obligors or otherwise in respect
of Receivables during the related Monthly Period, whether constituting principal
or interest, lease payments, payments in respect of Residual Value, prepayments,
proceeds of sales of Financed Vehicles, Insurance Proceeds, Liquidation Proceeds
or otherwise, except for Supplemental Servicing Fees received on the Receivables
and the Related Security.
Composite Schedule of Receivables: As defined in Section 3.04 of the
Servicing Agreement.
Contract: With respect to a Retail Note or Retail Lease, the related
contract(s) or other agreement(s) with the related Obligor which set forth the
terms of such Retail Note or Retail Lease as the case may be.
Contractual Obligation: As to any Person, any provision of any security
issued by such Person or any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
Controlling Class: (a) So long as any Class A Notes are outstanding, the
Class A Notes, (b) if the Class A Notes are no longer outstanding but the Class
B Notes are outstanding, the Class B Notes, and (c) if the Notes are no longer
outstanding, the Certificates.
Corporate Trust Office: With respect to the Indenture Trustee, the Owner
Trustee, the General Interest Trustee or the Portfolio Interest Trustee, the
principal office at which at any particular time the corporate trust business of
that Person shall be administered, which office at the Closing Date is located
at The Bank of New York, 000 Xxxxxxx Xxxxxx with respect to the Indenture
Trustee, at Chase Manhattan Bank USA, National Association, x/x XXXxxxxx Xxxxx,
000 Xxxxxxx Xxxxxxxxxx Road, OPS4/3rd Floor, Newark, Delaware 19713, Attn:
Institutional Trust Services with respect to the Owner Trustee, at 1 Bank Xxx
Xxxxx, Xxxx Xxxx XX0-0000, Xxxxxxx, XX 00000-0000 Attention: Global Corporate
Trust Services Division, with respect to the Portfolio Trustee, and at 1 Bank
Xxx Xxxxx, Xxxx Xxxx XX0-0000, Xxxxxxx, XX 00000-0000 Attention: Global
Corporate Trust Services Division, with respect to the General Interest Trustee.
Custodian: NFC, as Servicer, or another custodian named from time to
time in the Servicing Agreement.
Cutoff Date: With respect to an Initial Receivable, the Initial Cutoff
Date, and with respect to a Subsequent Receivable, the related Subsequent Cutoff
Date.
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, truck chassis, bus or
trailer floor plan financing terms, (iii) a truck, bus, or trailer equipment
manufacturer with whom International has a valid agreement to sell International
Vehicles.
Dealer Liability: With respect to any Receivable, all rights, claims and
actions of Navistar Financial against the Dealer which sold the Financed
Vehicle(s) which gave rise to such
App.A-7
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 Notes: The Notes specified in Section 2.12 of the Indenture.
Delaware Trustee: As defined in the Series 2003-A Portfolio Supplement.
Delinquency Percentage: With respect to a calendar month, an amount
equal to the aggregate Remaining Gross Balance of all outstanding Receivables
which are 61 days or more past due as of the last day of such calendar month, as
determined in accordance with the Servicer's normal practices, expressed as a
percentage of the aggregate Remaining Gross Balance of all outstanding
Receivables on the last day of such calendar month.
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: Collectively, the Collection Account, the Reserve
Account, the Note Distribution Account, the Negative Carry Account and the
Pre-Funding Account.
Designated Collateral: As defined in the Titling Trust Agreement.
Designated Receivables: As defined in Section 2.01 of the Purchase
Agreement.
Designated Retail Leases: As defined in Section 2.03 of the Lease
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 June 16, 2003.
Dollars or $: Lawful currency of the United States of America.
Electing Holder: As defined in the Titling Trust Agreement.
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 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 which signifies investment grade
for long-term unsecured debt.
App.A-8
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 "AA" from S&P and "Aa2" from
Xxxxx'x 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, (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
App.A-9
investment category for short-term unsecured debt obligations, the
collateral for which is held by a custodial bank for the benefit of the
Issuer 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.
Equal Payment Fully Amortizing Receivable: A Retail Note that provides
for equal monthly payments that fully amortize the amount financed over the
original term to maturity.
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, the Treasurer, Assistant
Secretary or Assistant 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: The Federal Deposit Insurance Corporation or any successor entity
thereto.
Final Scheduled Distribution Date: With respect to a class of
Securities, the Distribution Date in the month set forth below opposite such
Securities:
Class A-1 Notes: June 2004
Class A-2 Notes: March 2006
Class A-3 Notes: February 2007
Class A-4 Notes: November 2009
Class B Notes: November 2009
Finance Lease: A Retail Lease that is not a TRAC Lease and which is
required by GAAP to be capitalized on the balance sheet of the related Obligor
and which gives the Obligor the right to purchase the Financed Vehicle at lease
expiration for $1,000 or less.
App.A-10
Financed Vehicle: A new or used medium or heavy duty truck, truck
chassis bus or trailer, together with any accessions thereto which were financed
with the proceeds of the related Receivable, in the case of a Retail Note,
securing an Obligor's indebtedness under a Receivable and, in the case of a
Retail Lease, the new or used medium or heavy duty truck, truck chassis, bus or
trailer subject to the lease. A Receivable may be secured by one or more
Financed Vehicles.
Financial Asset: 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.
Financial Parties: The Noteholders and the Certificateholders.
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
Retail Note, is sufficient to prepay such Receivable in full (after application
of the Scheduled Payment), (ii) a Retail Note secured by multiple Financed
Vehicles, equals the unpaid principal amount of the Retail Note relating to any
Financed Vehicle, as determined by the Servicer in accordance with its customary
servicing procedures or, (iii) a Retail Lease, is sufficient to pay in full the
Outstanding Capitalized Cost on the Financed Vehicle related thereto.
Funding Percentage: With respect to any Distribution Date, the
percentage derived from the fraction the numerator of which is the Pre-Funded
Amount and the denominator of which is the sum of the Aggregate Receivables
Balance and the Pre-Funded Amount, in each case, as of the last day of the
related Monthly Period.
Funding Period: The period beginning on and including the Closing Date
and ending on the first to occur of (a) the Distribution Date on which the
amount on deposit in the Pre-Funding Account (after giving effect to any
transfers therefrom in connection with the transfer of Subsequent Receivables to
the Issuer on such Distribution Date) is not greater than $100,000, (b) the date
on which an Event of Default or a Servicer Default occurs, (c) the date on which
an Insolvency Event occurs with respect to the Seller or NFC or (d) the close of
business on the December 2003 Distribution Date.
Further Transfer and Servicing Agreements: The Pooling Agreement,
including each PSA Assignment, the Servicing Agreement, the Trust Agreement and
the Indenture.
GAAP: Generally accepted accounting principles in the United States of
America in effect from time to time.
General Collection Account: As defined in the Titling Trust Agreement.
General Interest: As defined in the Titling Trust Agreement.
General Interest Trustee: As defined in the Titling Trust Agreement.
App.A-11
General Titling Trust Assets: Shall have the meaning given to the term
"General Trust Assets" in the Titling Trust Agreement.
GI Holder: A holder of a certificate representing a divided beneficial
interest in the General Interest.
Governmental Authority: Any nation or government, any state, province or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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 lease
payments and 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.
Grantor: As defined in the Titling Trust Agreement.
Gross Balance: As of any date of determination, (i) with respect to a
Retail Note, the unpaid principal balance of such Retail Note as of such date
plus, with respect to a Retail Note classified as a "finance charge-included
contract", the finance charges included in the payments due with respect to such
Retail Note on or after such date, and (ii) with respect to a Retail Lease, the
aggregate remaining periodic rental payments plus the TRAC Payment or purchase
option price set forth in such Retail Lease (which, for such purposes, shall be
assumed to be made on the last day of the lease term).
Guaranty: With respect to any Receivable, a personal or commercial
guaranty of an Obligor's performance with respect to such Receivable.
Harco Leasing: Harco Leasing Company, Inc., a Delaware corporation and
its successors and assigns.
Holder: The Person in whose name a Note is registered on the Note
Register.
Indemnified Parties: The Persons specified in Section 6.9 of the Trust
Agreement.
Indenture: The Indenture, between the Issuer and the Indenture Trustee,
dated as of the Closing Date, as the same may from time to time be amended,
modified or otherwise supplemented.
App.A-12
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 indenture trustee under the Indenture.
Independent: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Issuer, 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 Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, 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"
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 Starting Receivables Balance: $326,316,883.05.
Initial Beneficiary: As defined in the Titling Trust Agreement.
Initial Capitalized Cost: With respect to a Retail Lease, the aggregate
amount of financing provided for the related Financed Vehicle or Vehicles,
including insurance premiums, service and warranty contracts, federal excise
taxes, sales taxes, and other items customarily financed as part of Retail
Leases and related costs.
Initial Cutoff Date: May 1, 2003.
Initial LPA Assignment: As defined in Section 2.01 of the Lease Purchase
Agreement.
Initial PA Assignment: As defined in Section 2.01 of the Purchase
Agreement.
Initial PSA Assignment: As defined in Section 2.01 of the Pooling
Agreement.
Initial Receivables: Receivables transferred to the Trust on the Closing
Date as set forth on the Schedule of Retail Notes and the Schedule of Retail
Leases attached to the Initial PSA Assignment.
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,
App.A-13
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.
Insolvency Laws: The Bankruptcy Code and any other applicable federal or
state bankruptcy, insolvency or other similar law.
Insurance Policy: With respect to any 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: Proceeds of any Insurance Policy with respect to
such Receivable.
Interest Rate: With respect to the Class A-1 Notes, 1.25% per annum,
with respect to the Class A-2 Notes, 1.31% per annum, with respect to the Class
A-3 Notes, 1.73% per annum, with respect to the Class A-4 Notes, 2.24% per
annum, and with respect to the Class B Notes, 3.08% per annum.
Interested Parties: The Issuer 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 Financial
Party with respect to the Purchased Property.
International: International Truck and Engine Corporation, a Delaware
corporation, and its successors and assigns.
International Purchase Obligations: Certain obligations of
International, subject to limitations, to purchase Financed Vehicles securing
Liquidating Receivables pursuant to Article VI and other provisions of the
Master Intercompany Agreement by and between Navistar Financial and
International dated as of April 26, 1993, as such Master Intercompany Agreement
may be amended, supplemented, restated or otherwise modified.
International Vehicle: Any truck, truck chassis, bus or trailer produced
by or for International or its Subsidiaries or sold by International or its
Subsidiaries to Dealers, including any body parts or accessions attached
thereto.
Investment Company Act: The Investment Company Act of 1940, as amended.
Investment Earnings: Investment earnings on funds deposited in the
Designated Accounts, net of losses and investment expenses, during the
applicable Monthly Period.
App.A-14
Issuer: The party named as such in the Pooling Agreement and the
Indenture until a successor replaces it and, thereafter, means the successor
and, for all purposes of any provision contained therein and required by the
TIA, each other obligor on the Notes.
Issuer Documents: As defined in the Recitals of the Administration
Agreement.
Issuer Order and Issuer Request: A written order or request signed in
the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
Lease Purchase Agreement: The Lease Purchase Agreement, dated as of the
Closing Date, by and between Harco Leasing and Navistar Financial.
Lease Purchase Closing: As defined in Section 2.03 of the Lease Purchase
Agreement.
Lease Purchase Date: As defined in Section 2.02 of the Lease Purchase
Agreement.
Lease Purchase Price: As defined in Section 2.03 of the Lease Purchase
Agreement.
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 Receivable, including the 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.
London Business Day: Any day on which dealings in deposits in United
States Dollars are transacted in the London bank market.
Low APR Receivable: A Receivable that has an APR that is less than the
Required Rate, other than a Temporary Interest Free Receivable.
App.A-15
LPA Assignment: The Initial LPA Assignment and any subsequent Transfer
LPA Assignment.
Material Adverse Effect: With respect to a Person, a material adverse
effect on (a) the ability of such Person to perform its obligations under any of
the Basic Documents or (b) the validity or enforceability of any of the Basic
Documents or the rights or remedies of any other Person thereunder.
Maximum Negative Carry Amount: With respect to the Closing Date and any
Distribution Date, the product of (i) the excess of (a) the weighted average of
the Interest Rates on the Notes, as of such date over (b) 0.75%, multiplied by
(ii) the amount on deposit in the Pre-Funding Account on such date multiplied by
(iii) the fraction of a year represented by the number of days from such date
until the end of the Funding Period (calculated on the basis of a 360-day year
of twelve 30-day months).
Monthly Advance: As defined in Section 2.14 of the Servicing Agreement.
Monthly Period: With respect to a Determination Date and a Record 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.
With respect to a Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs except that the Monthly Period relating to
the first Distribution Date shall be the period from the Initial Cutoff Date to
the last day of the calendar month immediately preceding the first Distribution
Date.
Monthly Remittance Conditions: As defined in Section 2.12 of the
Servicing Agreement.
Moody's: Xxxxx'x Investors Service or its successor. Navistar Financial
or NFC: Navistar Financial Corporation, a Delaware corporation, and its
successors and assigns.
Negative Carry Account: The account designated as such, established and
maintained pursuant to Section 2.02(a)(vi) of the Servicing Agreement.
Negative Carry Account Initial Deposit: Cash or Eligible Investments
having a value of $836,398.07.
Negative Carry Account Property: As defined in the Granting Clause of
the Indenture.
Negative Carry Amount: With respect to any Distribution Date, the excess
(if any) of (i) the product of (a) the sum of the Aggregate Class A Noteholders'
Interest Distributable Amount and the Class B Noteholders' Interest
Distributable Amount for such Distribution Date multiplied by (b) the Funding
Percentage for such Distribution Date over (ii) the Investment Earnings on
amounts in the Pre-Funding Account during the related Monthly Period.
New York UCC: The UCC as in effect in the State of New York.
App.A-16
NFRRC: Navistar Financial Retail Receivables Corporation, a Delaware
corporation, and its successors and assigns.
NIC: Navistar International Corporation, a Delaware corporation, and its
successors and assigns.
Note Depository: The depositary from time to time selected by the
Indenture Trustee on behalf of the Issuer 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 Issuer, 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 2.02(a)(ii) of the 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, other than the Noteholders' Prepayment
Premium.
Note Register: With respect to any class of Notes, the register of such
Notes maintained pursuant to Section 2.4(a) of the Indenture.
Note Registrar: The registrar at any time of the Note Register,
appointed pursuant to Section 2.4 of the Indenture.
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' Prepayment Premium: With respect to (i) the Class A-1
Notes, an amount equal to the excess, if any, discounted as described below, of
(a) the amount of interest that would have accrued on the portion of the
remaining Pre-Funded Amount to be paid to the Noteholders of the Class A-1 Notes
pursuant to Section 8.2(e) of the Indenture (the "Class X-0
Xxx.X-00
Note Prepayment Amount") at the Interest Rate of such class during the period
commencing on and including the Distribution Date on which such Class A-1 Note
Prepayment Amount is required to be paid to but excluding August 15, 2003, over
(b) the amount of interest that would have accrued on such Class A-1 Note
Prepayment Amount over the same period at a per annum rate of interest equal to
the bond equivalent yield to maturity on the Determination Date preceding such
Distribution Date on the United States Treasury Xxxx due August 21, 2003 (such
excess to be discounted on a monthly basis to present value to such Distribution
Date at the yield described in clause (i)(b) above), (ii) the Class A-2 Notes,
an amount equal to the excess, if any, discounted as described below, of (a) the
amount of interest that would have accrued on the portion of the remaining
Pre-Funded Amount to be paid to the Noteholders of the Class A-2 Notes pursuant
to Section 8.2(e) of the Indenture (the "Class A-2 Note Prepayment Amount") at
the Interest Rate of such class during the period commencing on and including
the Distribution Date on which such Class A-2 Note Prepayment Amount is required
to be paid to but excluding May 15, 2004, over (b) the amount of interest that
would have accrued on such Class A-2 Note Prepayment Amount over the same period
at a per annum rate of interest equal to the bond equivalent yield to maturity
on the Determination Date preceding such Distribution Date on the 5-1/4% United
States Treasury Note due May 15, 2004 (such excess to be discounted on a monthly
basis to present value to such Distribution Date at the yield described in
clause (ii)(b) above), (iii) the Class A-3 Notes, an amount equal to the excess,
if any, discounted as described below, of (a) the amount of interest that would
have accrued on the portion of the remaining Pre-Funded Amount to be paid to the
Noteholders of the Class A-3 Notes pursuant to Section 8.2(e) of the Indenture
(the "Class A-3 Note Prepayment Amount") at the Interest Rate of such class
during the period commencing on and including the Distribution Date on which
such Class A-3 Note Prepayment Amount is required to be paid to but excluding
May 15, 2005 over (b) the amount of interest that would have accrued on such
Class A-3 Note Prepayment Amount over the same period at a per annum rate of
interest equal to the bond equivalent yield to maturity on the Determination
Date preceding such Distribution Date on the 6-1/2% United States Treasury Note
due May 15, 2005 (such excess to be discounted on a monthly basis to present
value to such Distribution Date at the yield described in clause (iii)(b)
above), (iv) the Class A-4 Notes, an amount equal to the excess, if any,
discounted as described below, of (a) the amount of interest that would have
accrued on the portion of the remaining Pre-Funded Amount to be paid to the
Noteholders of the Class A-4 Notes pursuant to Section 8.2(e) of the Indenture
(the "Class A-4 Note Prepayment Amount") at the Interest Rate of such class
during the period commencing on and including the Distribution Date on which
such Class A-4 Note Prepayment Amount is required to be paid to but excluding
May 15, 2006, over (b) the amount of interest that would have accrued on such
Class A-4 Note Prepayment Amount over the same period at a per annum rate of
interest equal to the bond equivalent yield to maturity on the Determination
Date preceding such Distribution Date on the 4-5/8% United States Treasury Note
due May 15, 2006 (such excess to be discounted on a monthly basis to present
value to such Distribution Date at the yield described in clause (iv)(b) above)
and (v) the Class B Notes, an amount equal to the excess, if any, discounted as
described below, of (a) the amount of interest that would have accrued on the
portion of the remaining Pre-Funded Amount to be paid to the Noteholders of the
Class B Notes pursuant to Section 8.2(e) of the Indenture (the "Class B Note
Prepayment Amount") at the Interest Rate of such class during the period
commencing on and including the Distribution Date on which such Class B Note
Prepayment Amount is required to be paid to but excluding
App.A-18
June 15, 2005, over (b) the amount of interest that would have accrued on such
Class B Note Prepayment Amount over the same period at a per annum rate of
interest equal to the bond equivalent yield to maturity on the Determination
Date preceding such Distribution Date on the 6-1/2% United States Treasury Note
due May 15, 2005 (such excess to be discounted on a monthly basis to present
value to such Distribution Date at the yield described in clause (v)(b) above).
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.
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.
Notice of Default: As defined in Section 5.1(d) of the Indenture.
Obligor: (i) with respect to any Retail Note, the purchaser or any
co-purchaser of the related Financed Vehicle or Financed Vehicles or any other
Person, other than the maker of a Guaranty, who owes payments under such
Receivable and (ii) with respect to any Retail Lease, the lessee or any
co-lessee of the related Financed Vehicle or Financed Vehicles or any other
Person, other than the maker of a Guaranty, who owes payments under such
Receivable.
Officer's Certificate: A certificate signed by any Authorized Officer of
the Issuer, 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 Issuer. Where an Officer's Certificate is required
to be delivered by any other Person, a certificate signed by any Authorized
Officer of such Person.
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 4.01 of the Pooling Agreement.
App.A-19
Other Titling Trust Parties: The Titling Trust, the Titling Trustees,
the Collateral Agent, and Harco Leasing.
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 Controlling Class have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any Basic
Document, Notes owned by the Issuer, 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
Issuer, 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. Payment
of Noteholders' Prepayment Premium to Holders of Outstanding Notes will not
reduce the Outstanding Amount of the Notes.
Outstanding Capitalized Cost: With respect to a Retail Lease, the amount
to which the Initial Capitalized Cost of the related Financed Vehicle has been
amortized at the APR by the periodic lease payments on such Financed Vehicle and
any purchase payments or, in the case of a TRAC Lease, the TRAC Payment made
upon expiration of such TRAC Lease.
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 2.14 of the Servicing Agreement
as reducing Outstanding Monthly Advances with respect to such Receivable.
App.A-20
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 Pooling Agreement and
the 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 Issuer; 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 2.08 of the Servicing Agreement, any other provision of the Further
Transfer and Servicing Agreements or otherwise.
Owner Trust Estate: All right, title and interest of the Issuer in and
to the property and rights assigned to the Issuer pursuant to Article II of the
Pooling Agreement, all funds on deposit from time to time in the Collection
Account, the Pre-Funding Account, the Negative Carry Account, the Reserve
Account and the Certificate Distribution Account and all other property of the
Issuer from time to time, including any rights of the Issuer pursuant to the
Pooling Agreement, the Servicing Agreement and the Administration Agreement.
Owner Trustee: Chase Manhattan Bank USA, National Association, 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.
Paying Agent: (i) 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
Issuer 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 Issuer and (ii) 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 JPMorgan Chase
Bank.
Permitted Financing: As defined in the Titling Trust Agreement.
Permitted Liens:
(A) with respect to any Collateral, the interests of the
parties under the Basic Documents; and
App.A-21
(B) with respect to any Financed Vehicle subject to a Retail
Lease or any Financed Vehicle which has been repossessed by the Servicer:
(1) any liens on the Financed Vehicle for taxes,
assessments, levies, fees and other government and similar charges not
yet due and payable or the amount or validity of which is being
contested;
(2) any liens of mechanics, suppliers, vendors, materialmen,
laborers, employees, repairmen and other like liens arising in the
ordinary course of Harco Leasing's or the Titling Trust's (or if a
Retail Lease is then in effect, any Obligor's) business on the Financed
Vehicle related thereto securing obligations which are not due and
payable or the amount or validity of which is being contested;
(3) liens on the Financed Vehicle related thereto arising
out of any judgment or award or by operation of law, in any such case as
a result of an act or omission by the related Obligor;
(4) liens which may exist in accessions to the Financed
Vehicles not financed by the Receivables and
(5) any lien of the Collateral Agent noted on the
certificate of title of a Financed Vehicle.
Person: Any legal person, including any individual, corporation,
partnership, limited liability company, association, joint-stock company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
Physical Property: Bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-102(a)(47) of the UCC and are susceptible of
physical delivery.
Plan: With respect to a Person, at a particular time, any employee
benefit plan which is covered by ERISA and in respect of which such Person or a
Commonly Controlled Entity with respect to such Person is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
Pooling Agreement: The Pooling Agreement, dated as of the Closing Date,
between NFRRC and the Issuer, as amended, modified and supplemented from time to
time.
Portfolio Assets: As defined in the Titling Trust Agreement.
Portfolio Interest: As defined in the Titling Trust Agreement.
Portfolio Interest Certificate: As defined in the Titling Trust
Agreement.
Portfolio Interest Trustee: As defined in Preamble of the Servicing
Agreement.
App.A-22
Portfolio Servicing Agreement Supplement: As defined in Section 1.02 of
the Servicing Agreement.
Portfolio Supplement: As defined in the Titling Trust Agreement.
Portfolio Trustee: As defined in the Titling Trust Agreement.
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.
Pre-Funded Amount: With respect to any Distribution Date, the amount on
deposit in the Pre-Funding Account.
Pre-Funded Percentage: With respect to a class of Notes, the quotient
(expressed as a percentage) of (i) the initial principal balance of such class
of Notes as of the Closing Date and (ii) the sum of the initial principal
balances of each class of Notes as of the Closing Date.
Pre-Funding Account: The account designated as such, established and
maintained pursuant to Section 2.02(a)(v) of the Servicing Agreement.
Pre-Funding Account Initial Deposit: Cash or Eligible Investments having
a value of $173,683,116.95.
Pre-Funding Account Property: As defined in the Granting Clause of the
Indenture.
Prepayment: With respect to a Distribution Date and to a Receivable, the
portion of an Actual Payment in excess of the Scheduled Payment.
Principal Distributable Amount: With respect to any Distribution Date,
the sum of the following items: (i) the principal portion of all Scheduled
Payments due with respect to the related Monthly Period on Receivables held by
the Trust (other than Liquidating Receivables) excluding Scheduled Payments that
were prepaid in any prior Monthly Period and included in the Principal
Distributable Amount on a prior Distribution Date, (ii) the principal portion of
all Prepayments (or, in the case of the Retail Leases, all Full Prepayments
received during the related Monthly Period (except to the extent included in (i)
above)), (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)
and (iv) the Receivable Balance of each Retail Lease that terminated or expired
during the related Monthly Period (except to the extent included in (i), (ii) or
(iii) 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 excess, if any, of 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.
App.A-23
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Program: As defined in Section 3.02 of the Servicing Agreement.
PSA Assignment: The Initial PSA Assignment and any Subsequent Transfer
PSA Assignment.
Purchase Agreement: The Purchase Agreement, dated as of the Closing
Date, between NFC and NFRRC, as amended and supplemented from time to time.
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 Agency: Each of 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
Issuer 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) As used in the Basic Documents (other than the Purchase
Agreement) in the context of a transfer of a Receivable or the ownership of a
Receivable, a Retail Note or the beneficial interest in a Retail Lease the
record owner of which is the Titling Trust that is transferred to the Issuer
pursuant to the Pooling Agreement and (b) as used in the Basic Documents in all
other contexts, a Retail Lease or a Retail Note that is transferred to the
Issuer pursuant to the Pooling Agreement.
Receivable Balance: As of an Accounting Date, (a) with respect to any
Retail Note, the Starting 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,
App.A-24
proceeds from any Insurance Policies, Liquidation Proceeds, proceeds from any
Dealer Liability, proceeds from any International Purchase Obligations and
proceeds from any Guaranties and (b) with respect to a Retail Lease, the
remaining Scheduled Payments or purchase option price set forth in the Retail
Lease minus, without duplication, the sum of (i) Unearned Income, (ii) all
payments received by the Servicer from or for the account of the Obligor which
are not late fees, prepayment charges or certain other similar fees or charges,
(iii) any Warranty Payment or Administrative Purchase Payment with respect to
such Retail Lease, (iv) any Prepayments applied to such Retail Lease, and (v)
proceeds received by the Servicer from any Insurance Policies with respect to
such Retail Lease.
Receivables File: As defined in Section 4.01 of the Servicing Agreement.
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 as such by the Servicer
or the Issuer as described in Sections 10.1 and 10.2 of the Indenture.
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 Retail Note Assets: With respect to a Retail Note, the right,
title and interest of the Seller in and to the following assets:
(a) all amounts due on and under such Retail Note on
and after the applicable Cutoff Date;
(b) the security interests in the Financed Vehicles
granted by Obligors pursuant to such Retail Note
and, to the extent permitted by law, in any
accessions thereto which are financed by such
Retail Note;
(c) any proceeds from any Insurance Policies with
respect to such Retail Note;
(d) any proceeds from Dealer Liability with respect
to such Retail Note, proceeds from any
International Purchase Obligations with respect
to such Retail Note (subject to the limitation
set forth in Section 5.08 of the Purchase
Agreement and Section 2.04 of the Pooling
Agreement, as applicable) and proceeds from any
Guaranties of such Retail Note;
App.A-25
(e) the benefit of any lease assignments with
respect to the Financed Vehicles; and
(f) any proceeds of the property described in
clauses (a) through (d) above.
Related Security: With respect to a Retail Note or Retail Lease, the
Related Retail Note Assets or the Related Titling Trust Assets, as applicable.
Related Titling Trust Assets: With respect to a Retail Lease, the
following assets:
(i) each Financed Vehicle subject to such Retail Lease;
(ii) the Certificate of Title of each such Financed Vehicle;
(iii) the rights (but not the obligations) with respect to any
such Retail Lease or Financed Vehicle, including the
right to proceeds arising from all International
Purchase Obligations, if any, or any other repurchase
obligation with respect to such Retail Lease or Financed
Vehicle;
(iv) all of the Transferor's or Navistar Financial's Dealer
Agreement Rights (as such term is defined in the Titling
Trust Agreement);
(v) any proceeds of any Insurance Policy with respect to
such Retail Lease or Financed Vehicle;
(vi) any rights of the lessor with respect to any security
deposit relating to such Retail Lease in accordance with
the terms of such Retail Lease;
(vii) the rights with respect to such Retail Lease or Financed
Vehicle under the Titling Trust Servicing Agreement;
(viii) all amounts due on and under such Retail Lease on and
after the applicable Cutoff Date;
(ix) all proceeds of the foregoing, including all Collections
and all Liquidation Proceeds and all Disposition
Proceeds (as such term is defined in the Titling Trust
Agreement) with respect to such Financed Vehicles; and
(x) all other Titling Trust Assets relating to such Retail
Lease.
Remaining Gross Balance: With respect to any Receivable (other than a
Liquidating Receivable) and as of an Accounting Date, the Starting 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 Starting Gross Receivable Balance of any such
Receivable and (iv) proceeds from any Insurance Policies with respect to such
Receivable, plus
App.A-26
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 Moody's 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.
Required Global Secured Parties: As defined in the Titling Trust
Agreement.
Requisite GI Holder: As defined in the Titling Trust Agreement.
Required Negative Carry Account Balance: As of any Determination Date,
an amount equal to the lesser of (a) the Negative Carry Account Initial Deposit
minus all previous withdrawals from the Negative Carry Account (other than
Investment Earnings, if any, withdrawn to pay the Certificateholders pursuant to
Section 2.02 of the Servicing Agreement) and (b) the Maximum Negative Carry
Amount as of such date.
Required Rate: 2.90%.
Requirement of Law: As to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
Reserve Account: An account designated as such, established and
maintained pursuant to Section 2.02(a)(iv) of the Servicing Agreement.
Reserve Account Initial Deposit: Cash or Eligible Investments having a
value of $12,755,101.71, which is equal to the sum of (1) 4.00% of the Initial
Aggregate Starting Receivables Balance and (2) the aggregate Yield Supplemental
Required Deposit Amounts for the Initial Receivables, shall be deposited into
the Reserve Account on the Closing Date pursuant to Section 2.01 of the Pooling
Agreement.
Reserve Account Subsequent Transfer Deposit: With respect to any
Subsequent Transfer Date, cash or Eligible Investments in an amount equal to the
sum of (1) 4.00% of the aggregate Starting Receivable Balance of the transferred
Subsequent Receivables and (2) the aggregate Yield Supplement Required Deposit
Amounts for the transferred Subsequent Receivables, which shall be deposited
into the Reserve Account on such Subsequent Transfer Date, pursuant to Section
8.11(a) of the Indenture.
App.A-27
Reserve Account Property: As defined in the Granting Clause of the
Indenture.
Residual Value: With respect to a TRAC Lease, an amount specified at
lease inception in the TRAC Lease, and with respect to a Finance Lease, the
amount of the Obligor's purchase option under that Finance Lease.
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 Lease: A lease by an Obligor of one or more Financed Vehicles,
originated or acquired by Navistar Financial or one or more of its Affiliates.
Retail Note: A retail loan evidenced by a note and secured by one or
more Financed Vehicles, originated or acquired by Navistar Financial or one or
more of its Affiliates.
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.
Schedule of Retail Leases: Each schedule attached to a PA Assignment or
a PSA Assignment specifying the Retail Leases then being transferred to the
Issuer.
Schedule of Retail Notes: Each schedule attached to a PA Assignment or a
PSA Assignment specifying the Retail Notes then being transferred to the Issuer.
Scheduled Payment: With respect to any Receivable, a payment which (i)
is in the amount required under the terms of such Receivable in effect as of its
applicable 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, including, in the case of a TRAC Lease, the TRAC Payment, and (ii) is
payable by the Obligor of such Receivable. When Scheduled Payment is used with
reference to a Distribution Date after the date such Receivable is transferred
to the Issuer, 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 its applicable Cutoff Date.
Secretary of State: The Secretary of State of the State of Delaware.
App.A-28
Securities: The Notes and the Certificates.
Securities Act: The United States Securities Act of 1933, as amended
from time to time.
Securities Intermediary: As defined in Section 2.02(b) of the Servicing
Agreement.
Security Certificate: As defined in Section 8-102(a)(16) of the New York
UCC.
Security Document: As defined in Section 11.1 of the Collateral
Supplement.
Security Entitlement: As defined in Section 8-102(a)(17) of the New York
UCC.
Securityholder: Any of the Noteholders or Certificateholders.
Seller: As defined in the Recitals to the Pooling Agreement.
Servicer: The Person executing the Servicing Agreement as the Servicer,
or its successor in interest pursuant to Section 7.02 of the Servicing
Agreement.
Servicer Default: Any of the events specified in Section 7.01 of the
Servicing Agreement; provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been satisfied.
Servicer's Certificate: A certificate, completed by and executed on
behalf of the Servicer, in accordance with Section 2.17 of the Servicing
Agreement.
Servicing Agreement: The Servicing Agreement, dated as of the Closing
Date by and among Navistar Leasing Company, Harco Leasing Company, Inc., NFRRC,
the Issuer, the Servicer, the Collateral Agent and the Portfolio Trustee, as
amended, modified and supplemented from time to time.
Series 2003-A Portfolio Assets: As of any date, all of the Retail Leases
identified on any Schedule of Retail Leases attached to a Initial LPA Assignment
or any Subsequent Transfer LPA Assignment on or before such date, and the
Related Titling Trust Assets with respect to such Retail Leases, other than any
such Retail Leases which are (i) Warranty Receivables which have been
repurchased by NFC, (ii) Administrative Receivables which have been repurchased
by the Servicer, or (iii) which have otherwise been terminated, on or before
such date (and the Related Titling Trust Assets).
Series 2003-A Portfolio Certificate: The Portfolio Interest Certificate
representing the Series 2003-A Portfolio Interest.
Series 2003-A Portfolio Interest: The portfolio interest created
pursuant to the Series 2003-A Portfolio Supplement.
Series 2003-A Portfolio Interest Certificate: The Portfolio Interest
Certificate representing the Series 2003-A Portfolio Interest.
App.A-29
Series 2003-A Portfolio Interest Collateral: As defined in Section 11.2
of the Collateral Supplement.
Series 2003-A Portfolio Interest Obligor: As defined in the Recitals of
the Collateral Supplement.
Series 2003-A Portfolio Supplement: The Series 2003-A Portfolio
Supplement to the Titling Trust Agreement dated as of the Closing Date among
Harco Leasing, as Grantor and Initial Beneficiary, the General Interest Trustee,
the Series 2003-A Portfolio Trustee and the Delaware Trustee.
Series 2003-A Portfolio Trustee: As defined in the Series 2003-A
Portfolio Supplement.
Series 2003-A Secured Party: As defined in the Recitals of the
Collateral Supplement.
Sold Retail Lease Property: As defined in Section 2.04 of the Lease
Purchase Agreement.
S&P: Standard & Poor's Ratings Services, or its successor.
Special Purpose Entity: As defined in the Titling Trust 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:
(1) the sum of (a) 5.50% of the sum of the Aggregate Receivables
Balance as of the close of business on the last day of the related
Monthly Period and the aggregate of the Starting Receivable Balances of
all Subsequent Receivables acquired by the Issuer after the last day of
the related Monthly Period but on or prior to such Distribution Date
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 calendar months which are the fifth, fourth and third
calendar months preceding the calendar month immediately preceding such
Distribution Date, minus the sum of the Liquidation Proceeds for the
Monthly Periods which are the first, second and third calendar months
preceding the calendar month immediately preceding such Distribution
Date, 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 calendar months preceding the calendar month
immediately preceding such Distribution Date, exceeds 1.5% or (ii) the
average of the Delinquency Percentages for the preceding three calendar
months exceeds 2.0%, then the percentage of the Aggregate Receivables
Balance and of the aggregate of the Starting Receivable Balances of
Subsequent Receivables referred to in this clause (a) above, shall be
equal to 10.0%, and
(b) the Specified Yield Supplement Amount for such
Distribution Date; and
App.A-30
(2) 2.0% of the Aggregate Starting Receivables
Balance.
Specified Yield Supplement Amount: for any Distribution Date, an amount
equal to the sum of
(i) for each Temporary Interest Free
Receivable transferred to the Trust prior to the opening of
business on the first day of the Monthly Period in which such
Distribution Date occurs, the aggregate, for each Monthly Period
or part of a Monthly Period beginning with the Monthly Period in
which such Distribution Date occurs during which such Temporary
Interest Free Receivable is not accruing interest, of the
product of (1) the scheduled balance of such Temporary Interest
Free Receivable as of the opening of business on the first day
of such Monthly Period assuming all payments are made as
scheduled and no prepayments are made and (2) the result of (A)
the Required Rate divided by (B) twelve,
(ii) the greater of (1) for each Low APR
Receivable transferred to the Trust prior to the opening of
business on the first day of the Monthly Period in which such
Distribution Date occurs, the aggregate, for each Monthly Period
beginning with the Monthly Period in which such Distribution
Date occurs through and including the Monthly Period during
which the stated maturity date for such Low APR Receivable
occurs, of the product of (A) the scheduled balance of such Low
APR Receivable as of the opening of business on the first day of
such Monthly Period assuming all payments are made as scheduled
and no prepayments are made and (B) the result of (i) the
Required Rate minus the APR of such Low APR Receivable divided
by (ii) twelve, and (2) the lesser of (i) the aggregate of the
portions of the Yield Supplement Required Deposit Amounts
attributable to Low APR Receivables deposited into the Reserve
Account on or prior to the last day of the related Monthly
Period, and (ii) $50,000, and
(iii) the aggregate Yield Supplement Required
Deposit Amounts for any Subsequent Receivable transferred to the
Trust after the last day of the related Monthly Period but on or
prior to such Distribution Date.
Starting Gross Receivable Balance: With respect to any Receivable as of
the applicable Cutoff Date, the Starting 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.
Starting Receivable Balance: (a) With respect to a Receivable that is a
Retail Note, 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 and (b) with respect to a Receivable that is a Retail Lease, the
remaining Scheduled Payments or purchase option price set forth in the Retail
Lease minus, without duplication, the sum of (i) Unearned
App.A-31
Income and (ii) payments received from the Obligor prior to the Cutoff Date with
respect to such Receivable allocable to the principal portion of the lease
payments.
State: Any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or the
District of Columbia.
Statutory Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as the same may be amended from time to time.
Subsequent Cutoff Date: Any date designated by the Seller within the
period beginning on the first day of the Monthly Period preceding the Monthly
Period in which the related Subsequent Transfer Date occurs and ending on the
Subsequent Transfer Date.
Subsequent LPA Assignment: As defined in Section 2.02 of the Lease
Purchase Agreement.
Subsequent Receivables: The Receivables transferred from the Seller to
the Issuer pursuant to Section 2.02 of the Pooling Agreement, which shall be
listed on the schedules to the related Subsequent Transfer PSA Assignment.
Subsequent Transfer Date: Any date during the Funding Period on which
Subsequent Receivables are to be transferred to the Issuer and a related
Subsequent Transfer PSA Assignment is executed and delivered to the Issuer and
the Indenture Trustee pursuant to Section 2.02 of the Pooling Agreement.
Subsequent Transfer PA Assignment: As defined in Section 2.01 of the
Purchase Agreement.
Subsequent Transfer PSA Assignment: With respect to Subsequent
Receivables transferred to the Issuer pursuant to Section 2.02 of the Pooling
Agreement, has the meaning assigned thereto in Section 2.02(a) of the Pooling
Agreement.
Subsequent Transferee: As defined in the Recitals to the Purchase
Agreement.
Subsidiary: As to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Supplemental Servicing Fee: As defined in Section 2.09 of the Servicing
Agreement.
Tax Opinion: With respect to any action, an Opinion of Counsel to the
effect that, for U.S. federal income tax purposes (a) such action will not cause
a taxable event with respect to any Noteholders or (b) in the case of Section
2.14 of the Indenture, the Notes of the new Series will be characterized as
debt.
App.A-32
Temporary Interest Free Receivable: A Receivable that has an initial
period during which no interest accrues on such Receivable and all Scheduled
Payments are applied to the reduction of the principal amount thereof.
Temporary Notes: The Notes specified in Section 2.3 of the Indenture.
Titling Trust: Navistar Leasing Company, a Delaware statutory business
trust formed pursuant to the Titling Trust Agreement.
Titling Trust Agreement: The Trust Agreement, dated as of April 15,
1999, among Harco Leasing, Bank One, National Association (formerly known as the
First National Bank of Chicago), and Bank One Delaware, Inc. (formerly known as
First Chicago Delaware, Inc.), as amended, modified or supplemented from time to
time.
Titling Trust Assets: "Trust Assets" as defined in the Titling Trust
Agreement.
Titling Trust Documents: The Series 2003-A Portfolio Certificate,
Titling Trust Agreement, the Titling Trust Servicing Agreement, the Collateral
Agency Agreement, the Series 2003-A Portfolio Supplement, and the Collateral
Supplement.
Titling Trust Estate: "Trust Estate" as defined in the Titling Trust
Agreement.
Titling Trust Interest Holder: "Holder" as defined in the Titling Trust
Agreement.
Titling Trust Servicing Agreement: "Origination and Servicing Agreement"
as defined in the Titling Trust Agreement.
Titling Trust Servicer Funding Advances: "Servicer Funding Advances" as
defined in the Titling Trust Agreement.
Titling Trustees: Each of the General Interest Trustee, the Delaware
Trustee and each Portfolio Trustee.
Total Available Amount: With respect to a Distribution Date, the sum of
the Collected Amount, all amounts deposited to the Collection Account pursuant
to Sections 8.2(b)(ii) and 8.2(b)(iii) of the Indenture for such Distribution
Date and the amount of all cash and other immediately available funds in the
Reserve Account immediately prior to such date.
Total Servicing Fee: As defined in Section 2.09 of the Servicing
Agreement.
TRAC Lease: A Retail Lease that provides for a TRAC Payment by the
lessee at the expiration of the lease term pursuant to a provision in the lease
that provides in substance that, at the end of the term of the lease, after the
application of the proceeds of the sale of the Financed Vehicle (whether such
sale is to the lessee, an Affiliate of the lessor or another Person) the lessee
will be obligated to pay the lessor the excess of the TRAC Payment over the sale
proceeds or the lessor will be obligated to pay the lessee the excess of the
sale proceeds over the TRAC Payment.
App.A-33
TRAC Payment: With respect to a TRAC Lease, a fixed amount specified in
the lease documents for such TRAC Lease.
Transfer Date: With respect to any Distribution Date, the Business Day
immediately preceding such Distribution Date.
Transfer and Servicing Agreements: The Lease Purchase Agreement, the
Purchase Agreement, the Pooling Agreement, the Servicing Agreement, the Titling
Trust Agreement, the Titling Trust Servicing Agreement, the Collateral Agency
Agreement, the Series 2003-A Portfolio Supplement and the Collateral Supplement.
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 2003-A Owner Trust, a Delaware statutory
trust, created pursuant to the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of the Closing Date,
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 May 14, 2003 between the Seller and
the Owner Trustee.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939, as amended.
Trustees: The Owner Trustee and the Indenture Trustee.
UCC: The Uniform Commercial Code, as in effect in the relevant
jurisdiction.
UCC Collateral: Any property a security interest in which may be
perfected by filing under the UCC.
Uncertificated Security: As defined under the applicable UCC as in
effect on such date.
Underwriting Agreement: The Underwriting Agreement, dated May 20, 2003,
among Banc One Capital Markets, Inc., as representative of the several
underwriters party thereto, the Servicer and the Seller with respect to the sale
of the Notes.
Unearned Income: With respect to any Receivable, as of any date of
determination, the portion of the Gross Balance thereof identified as unearned
income by the Servicer, in accordance with its customary applicable accounting
procedures.
Warranty Payment: With respect to a Distribution Date and to a Warranty
Receivable repurchased as of the related Accounting Date (a) that is a Retail
Note, (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,
App.A-34
(iii) the amount of any reimbursements made pursuant to the last sentence of
Section 2.14 of the Servicing Agreement with respect to such Warranty Receivable
and (iv) all Outstanding Monthly Advances made on such Warranty Receivable minus
(v) the Rebate minus (vi) any Liquidation Proceeds with respect to such Warranty
Receivable to the extent applied prior to the Accounting Date that are not
reflected in items (i) through (iv) and (b) that is a Retail Lease, the sum of
(i) the sum of the Scheduled Payments on the Warranty Receivable due after the
Accounting Date, including the amount of any TRAC Payment or the Obligor's
purchase option, (ii) any reimbursement made pursuant to the last sentence of
Section 2.14 of the Servicing Agreement with respect to such Warranty
Receivable, (iii) all past due Scheduled Payments with respect to which a
Monthly Advance has not been made, and (iv) all Outstanding Monthly Advances
made on the Warranty Receivable minus (v) any Unearned Income minus (vi) any
Liquidation Proceeds with respect to such Warranty Receivable to the extent
applied to the Warranty Receivable on or prior to that Accounting Date that are
not reflected in items (i) through (iv).
Warranty Purchaser: Either (i) the Seller pursuant to Section 2.06 of
the Pooling 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 Agreement
or Section 5.04 of the Purchase Agreement.
Yield Supplement Required Deposit Amount: means,
(i) for any Temporary Interest Free
Receivable, an amount equal to the aggregate, for each calendar
month or part of a calendar month after the Cutoff Date for that
Temporary Interest Free Receivable in which that Temporary
Temporary Interest Free Receivable is not accruing interest, of
the product of
1. the scheduled balance of that Temporary
Interest Free Receivable as of the opening of business
on the first day of that calendar month assuming all
Scheduled Payments are made as scheduled and no
prepayments are made and
2. the result of (A) the Required Rate
divided by (B) twelve and
(ii) for any Low APR Receivable, an amount
equal to the aggregate, for each calendar month after the Cutoff
Date for that Low APR Receivable through and including the
calendar month during which the stated maturity date for that
Low APR Receivable occurs, of the product of
1. the scheduled balance of that Low APR
Receivable as of the opening of business on the first
day of that calendar month assuming all Scheduled
Payments are made as scheduled and no prepayments are
made and
2. the result of (A) the Required Rate
minus the APR of that Low APR Receivable divided by (B)
twelve.
App.A-35
APPENDIX A
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) Use of "related" as used in this Appendix and the Basic
Documents, with respect to any Distribution Date, the "related Determination
Date," the "related Monthly Period," and the "related Record Date" will mean the
Determination Date, the Monthly Period, and the Record Date, respectively,
immediately preceding such Distribution Date. With respect to any Purchase Date,
the "related Cutoff Date" will mean the Cutoff Date established for the closing
of the purchase of receivables on that Purchase Date.
(D) Use of "outstanding" etc. Whenever the term "outstanding
Notes," "outstanding principal amount" and words of similar import are used in
this Appendix or any Basic Document for purposes of determining whether the
Noteholders of the requisite outstanding principal amount of the Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or under any Basic Document, Notes owned by the Issuer, any other
obligor upon the Notes, the Seller or any Affiliate of any of the foregoing
Persons (it being understood that the Owner Trustee in its individual capacity
shall not be considered an Affiliate of any of the foregoing) 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 Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons.
(E) 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
App.A-36
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.
(F) 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.
(G) UCC References. References to sections or provisions of
Article 9 of the UCC in any of the Basic Documents shall be deemed to be
automatically updated to reflect the successor, replacement or functionally
equivalent sections or provisions of Revised Article 9, Secured Transactions
(2000) at any time in any jurisdiction which has made such revised article
effective.
(H) References to a Class of Notes. Unless otherwise
specified, references to a class of Notes, includes all the tranches included in
such class of Notes.
App.A-37
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 Indenture Trustee, the Issuer, 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, overnight mail or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given upon receipt:
1. in the case of the Seller, at the following address:
Navistar Financial Retail Receivables Corporation
c/o Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
in the case of the Servicer, at the following address:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
2. in the case of the Indenture Trustee, at its Corporate
Trust Office,
3. in the case of the Issuer, to the Corporate Trust Office
of the Owner Trustee, with copies to:
Navistar Financial Retail Receivables Corporation
c/o Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
App.B-1
with a copy to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
4. in the case of Harco Leasing, at the following address,
Harco Leasing Company, Inc.
c/o Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
5. in the case of the Collateral Agent, at the following
address,
The Bank of New York
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Indenture Trust Administration
Telecopy: (000) 000-0000
6. in the case of the Titling Trust, to the General
Interest Trustee at its Corporate Trust Office (as such term is used in the
Titling Trust Agreement), with a copy to Harco Leasing and Navistar Financial.
The Issuer 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 Issuer.
7. in the case of the Owner Trustee, at its Corporate Trust
Office, with a copy to the Administrator at:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
App.B-2
8. 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
9. in the case of Standard & Poor's Ratings Services, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Asset Backed Surveillance Department
or at such other address as shall be designated by such Person in a written
notice to the other parties to the Basic Documents to which they are party.
Where any Basic Document provides for notice to Noteholders 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 or by overnight mail to each Noteholder affected by
such condition or event, at such Person's address as it appears on the Note
Register, 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 Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholders shall affect the
sufficiency of such notice with respect to other Noteholders, 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.
App.B-3