Exhibit 99.1
EXECUTION COPY
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PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 19, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..............................................................1
SECTION 1.01 Definitions......................................................1
ARTICLE II PURCHASE AND SALE OF RECEIVABLES........................................1
SECTION 2.01 Purchase and Sale of Receivables.................................1
SECTION 2.02 Purchase Price...................................................2
SECTION 2.03 The Closings.....................................................2
SECTION 2.04 Covenant Regarding Subsequent Receivables........................2
ARTICLE III REPRESENTATIONS AND WARRANTIES.........................................3
SECTION 3.01 Representations and Warranties as to Receivables.................3
SECTION 3.02 Additional Representations and Warranties of NFC.................8
SECTION 3.03 Representations and Warranties of NFRRC.........................10
SECTION 3.04 Representations and Warranties Regarding Titling Trust..........11
ARTICLE IV CONDITIONS.............................................................13
SECTION 4.01 Conditions to Obligation of NFRRC...............................13
SECTION 4.02 Conditions To Obligation of NFC.................................14
ARTICLE V ADDITIONAL AGREEMENTS...................................................14
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements........14
SECTION 5.02 Protection of Title.............................................15
SECTION 5.03 Other Liens or Interests........................................15
SECTION 5.04 Repurchase Events...............................................15
SECTION 5.05 Indemnification.................................................16
SECTION 5.06 Further Assignments.............................................16
SECTION 5.07 Pre-Closing Collections.........................................16
SECTION 5.08 Limitation on Transfer of International Purchase Obligations....17
SECTION 5.09 Sale Treatment..................................................17
SECTION 5.10 No Petition; Waiver of Claims...................................17
ARTICLE VI MISCELLANEOUS PROVISIONS...............................................17
SECTION 6.01 Amendment.......................................................17
SECTION 6.02 Survival........................................................18
SECTION 6.03 Notices.........................................................18
SECTION 6.04 Governing Law...................................................18
SECTION 6.05 Waivers.........................................................18
SECTION 6.06 Costs and Expenses..............................................18
SECTION 6.07 Confidential Information........................................18
SECTION 6.08 Headings........................................................18
SECTION 6.09 Counterparts....................................................18
SECTION 6.10 Severability of Provisions......................................18
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SECTION 6.11 Further Assurances..............................................19
SECTION 6.12 No Third-Party Beneficiaries....................................19
SECTION 6.13 Merger and Integration..........................................19
SECTION 6.14 No Petition Covenants...........................................19
EXHIBITS
Exhibit A - Form of Initial PA Assignment
Exhibit B - Form of Subsequent Transfer PA Assignment
APPENDICES
Appendix A - Additional Representations and Warranties
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 19, 2002, between NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION, a Delaware corporation ("NFRRC"), and
NAVISTAR FINANCIAL CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase on the date hereof and from time to time
during the Funding Period certain Retail Notes and Retail Leases (collectively,
the "Receivables") and the Related Security with respect thereto;
WHEREAS, NFC is willing to sell the Receivables and the Related Security
with respect thereto to NFRRC;
WHEREAS, NFRRC may wish to sell or otherwise transfer the Receivables and
the Related Security with respect thereto, or interests therein, to a trust,
corporation, partnership or other entity (any such transferee being the
"Subsequent Transferee"); and
WHEREAS, the Subsequent Transferee may issue debentures, notes,
participations, certificates of beneficial interest, partnership interests or
other interests or securities (collectively, any such issued interests or
securities being "Securities") to fund its acquisition of the Receivables and
the Related Security with respect thereto.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Capitalized terms used but not otherwise defined
in this Agreement shall have the respective meanings assigned them in Part I of
Appendix A to the Pooling Agreement of even date herewith by and between
Navistar Financial 2002-B Owner Trust and NFRRC, as it may be amended,
supplemented or modified from time to time. All references herein to "the
Agreement" or "this Agreement" are to this Purchase Agreement as it may be
amended, supplemented or modified from time to time, the exhibits hereto and the
capitalized terms used herein which are defined in such Appendix A, and all
references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of such Appendix A shall be applicable to
this Agreement.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables. Subject to the satisfaction
of the conditions specified in Article IV, NFC agrees to sell, transfer, assign
and otherwise convey
to NFRRC, without recourse (except as provided in Section 5.04), and NFRRC
agrees to purchase (i) on the Closing Date pursuant to a written assignment
substantially in the form of Exhibit A (the "Initial PA Assignment"), and (ii)
on each Subsequent Transfer Date (each, together with the Closing Date, a
"Purchase Date"), pursuant to an assignment substantially in the form of Exhibit
B (each, a "Subsequent Transfer PA Assignment" and, together with the Initial PA
Assignment, each a "PA Assignment") up to the Available Purchase Amount, all
right, title and interest of NFC in, to and under:
(a) the Retail Notes identified on the Schedule of Retail Notes to the
PA Assignment delivered to NFRRC on such Purchase Date (the "Designated Retail
Notes") and the Related Retail Note Assets associated with the Designated Retail
Notes;
(b) the Series 2002-B Portfolio Interest and the beneficial interest
in the Series 2002-B Portfolio Assets, including the Retail Leases identified on
the Schedule of Retail Leases to the Initial PA Assignment delivered to NFRRC on
the Closing Date and the Retail Leases identified on the Schedule of Retail
Leases to the PA Assignment delivered to NFRRC on any subsequent Purchase Date
(the "Designated Retail Leases" and together with the Designated Retail Notes,
the "Designated Receivables") and the Related Titling Trust Assets associated
with the Designated Retail Leases and, with respect to the sale on the Closing
Date, the Series 2002-B Portfolio Certificate; and
(c) the rights, but not the obligations, of NFC under the Lease
Purchase Agreement, the Initial LPA Assignment and any Subsequent Transfer LPA
Assignment with respect to the Designated Retail Leases.
SECTION 2.02 Purchase Price. In consideration for the purchase of any
Designated Receivables and Related Security, NFRRC shall, on the related
Purchase Date, pay to NFC an amount equal to the aggregate Starting Receivables
Balance for such Designated Receivables (the "Purchase Price") and NFC shall
execute and deliver to NFRRC a PA Assignment with respect to such Designated
Receivables. On the Closing Date, a portion of the $476,822,132.57 Purchase
Price payable on such date equal to $453,062,081.93 shall be paid to NFC in
immediately available funds, and the balance of the Purchase Price
($23,760,050.64) shall be recorded as an advance from NFC to NFRRC. On each
Subsequent Transfer Date, a portion of the Purchase Price payable on such date
equal to the amount received by NFRRC pursuant to Section 8.11(a) of the
Indenture shall be paid to NFC in immediately available funds, and the balance
of the Purchase Price payable on such date shall be recorded as an advance from
NFC to NFRRC.
SECTION 2.03 The Closings. Each sale and purchase of the Designated
Receivables (each, a "Closing"), shall take place at such a place, on a date and
at a time mutually agreeable to NFC and NFRRC, and may occur simultaneously with
the closing of any related transactions contemplated by the Further Transfer and
Servicing Agreements.
SECTION 2.04 Covenant Regarding Subsequent Receivables. NFC covenants to
deliver and sell to NFRRC pursuant to Section 2.01 on or prior to the end of the
Funding Period Subsequent Receivables with an aggregate Starting Receivable
Balance equal to the amount of the Pre-Funding Account Initial Deposit. If on
the Distribution Date on which the Funding
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Period ends (or, if the Funding Period does not end on a Distribution Date, the
first Distribution Date following the end of the Funding Period), the Pre-Funded
Amount is equal to or greater than $100,000, NFC shall be obligated to pay to
NFRRC an amount equal to the Noteholders' Prepayment Premium with respect to
each class of Notes other than the Class A-3a Notes on the Transfer Date
immediately preceding the Distribution Date on which the Funding Period ends
(or, if the Funding Period does not end on a Distribution Date, on the first
Distribution Date following the end of the Funding Period); provided, however,
that the foregoing shall be the sole remedy of NFRRC, the Issuer, the Indenture
Trustee or the Noteholders with respect to a failure of NFC to comply with this
covenant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties as to Receivables. NFC makes
the following representations and warranties and the additional representations
and warranties set forth in Appendix A hereto as to the Designated Receivables
on which NFRRC relies in accepting the Designated Receivables. Such
representations and warranties (other than Section 3.01(n), which speaks only as
of the Closing Date) speak as of the Purchase Date for such Designated
Receivables, and as of the date of the related transfer of such Designated
Receivables under the Further Transfer and Servicing Agreements, and shall
survive the sale, transfer and assignment of such Designated Receivables to
NFRRC and the subsequent assignment and transfer thereof pursuant to the Further
Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each Designated Receivable:
(i) (A) in the case of a Retail Note, was originated by NFC to
finance a retail purchase by a retail customer or a refinancing (for
reasons other than credit reasons) of a Financed Vehicle or Financed
Vehicles by a retail customer and (B) in the case of a Retail Lease, was
originated by Harco Leasing, the Titling Trust or one or more of their
Affiliates for the retail lease of one or more Financed Vehicles (other
than a release for credit reasons), and in each case, (A) and (B), was
fully and properly executed by the parties thereto;
(ii) in the case of a Retail Note, has created or shall create a
valid, binding and enforceable first priority security interest in favor of
NFC in each Financed Vehicle related thereto, which security interest will
be validly assigned by NFC to NFRRC and will be assignable by NFRRC to a
subsequent purchaser;
(iii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for
realization against the collateral of the benefits of the security;
(iv) in the case of a Retail Lease, is a Finance Lease or a TRAC
Lease and (A) in the case of a Finance Lease, provides for payments
(including purchase option payments) that fully amortize the Initial
Capitalized Cost over its original term to maturity and yields implicit
interest at a fixed annual percentage rate, with a purchase option price
that does not exceed $1,000 and (B) in the case of a TRAC
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Lease, provides for payments that fully amortize the Initial Capitalized
Cost to an amount equal to the TRAC Payment, and, in the event of a
termination of the TRAC Lease, the amount payable thereunder by the Obligor
is at least equal to the excess of the Outstanding Capitalized Cost of the
related Financed Vehicle over the proceeds from the sale of such Financed
Vehicle;
(v) in the case of a Retail Note, shall yield interest at the
Annual Percentage Rate and comes from one of the following categories,
which differ in their provisions for the payment of principal and interest:
Equal Payment Fully Amortizing Receivables, Equal Payment Skip Receivables,
Equal Payment Balloon Receivables, Level Principal Fully Amortizing
Receivables, Level Principal Skip Receivables, Level Principal Balloon
Receivables, or Other Receivables. "Equal Payment Fully Amortizing
Receivables" are Receivables that provide for equal monthly payments that
fully amortize the amount financed over its original term to maturity.
"Equal Payment Skip Receivables" are Receivables that provide for equal
monthly payments in eleven or fewer months of each twelve-month period that
fully amortize the amount financed over its original term to maturity.
"Equal Payment Balloon Receivables" are Receivables that provide for equal
monthly payments except that a larger payment becomes due on the final
maturity date for such Receivables. "Level Principal Fully Amortizing
Receivables" are Receivables that provide for monthly payments consisting
of level principal amounts together with accrued and unpaid interest on the
unpaid Receivables Balances. "Level Principal Skip Receivables" are
Receivables that provide for monthly payments in eleven or fewer months of
each twelve-month period consisting of level principal amounts together
with accrued and unpaid interest on the unpaid Receivables Balances. "Level
Principal Balloon Receivables" are Receivables that provide for monthly
payments consisting of level principal amounts together with accrued and
unpaid interest on the unpaid Receivables Balances, except that a larger
principal payment becomes due on the final maturity date for such
Receivables. "Other Receivables" are Receivables not described above,
including Receivables that provide for level monthly payments in eleven or
fewer months of each twelve-month period that amortize a portion of the
amount financed over its original term to maturity with a larger payment
that becomes due on the final maturity date for such Receivables;
(vi) in the case of a Retail Note, immediately prior to the
transfer and assignment thereof to NFRRC by NFC pursuant to this Agreement,
NFC had good title to it, free of any Lien (except for Permitted Liens and
Liens that will be released as of such transfer), and all right, title and
interest in it has been validly sold by NFC to NFRRC pursuant to this
Agreement, and NFRRC has good title to it, free of any Lien (except for
Permitted Liens), and the transfer of the Retail Note to NFRRC has been
perfected under the UCC;
(vii) in the case of a Retail Lease, (A) such Retail Lease is
owned of record by the Titling Trust, (B) immediately prior to the
allocation of such Retail Lease to the Series 2002-B Portfolio Interest,
Harco Leasing was the beneficial owner of such Retail Lease free of any
Lien (except for Permitted Liens and Liens that will be released as of such
transfer), (C) all of Harco Leasing's right, title and interest in
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such Retail Lease has been validly sold by Harco Leasing to NFC pursuant to
the Lease Purchase Agreement, (D) upon execution and delivery of this
Agreement and the related PA Assignment by NFC and satisfaction of the
conditions set forth in Section 4.02 hereof relating to such Retail Lease,
all right, title and interest in such Retail Lease (other than the interest
therein of the Titling Trust) shall have been validly sold by NFC to NFRRC
pursuant to this Agreement and NFRRC shall be the owner of all right, title
and interest in such Retail Lease (other than the interest of the Titling
Trust) free of any Lien (except for Permitted Liens) and its transfer to
NFRRC has been perfected under the UCC;
(viii) in the case of a Retail Lease, each Financed Vehicle
related thereto is owned by the Titling Trust (or its nominee) as record
owner and upon issuance of the Series 2002-B Portfolio Certificate, NFRRC
will be the beneficial owner through its ownership of the Series 2002-B
Portfolio Interest of such Financed Vehicle and any certificate of title or
other evidence of ownership of such Financed Vehicle issued by a registrar
of titles in the respective jurisdiction in which such Financed Vehicle is
registered, relating to each such vehicle is registered in the name of the
Titling Trust (or its nominee) (or a properly completed application for
such title has been or will be submitted to the appropriate titling
authority) with a notation of Lien thereon in favor of the Collateral
Agent;
(ix) in the case of a Retail Lease, as of the related Purchase
Date, such Retail Lease has been allocated to the 2002-B Portfolio
Interest; and
(x) such Designated Receivable was originated in the ordinary
course of business in accordance with NFC's underwriting standards.
(b) Schedules of Retail Leases and Retail Notes. The information set
forth in the Schedule of Retail Leases and the Schedule of Retail Notes relating
to such Designated Receivables is true and correct in all material respects.
(c) Compliance With Law. All requirements of applicable federal, state
and local laws, and regulations thereunder, including the Equal Credit
Opportunity Act, the Federal Reserve Board's Regulation "B", the Soldiers' and
Sailors' Civil Relief Act of 1940, and any applicable bulk sales or bulk
transfer law and other equal credit opportunity and disclosure laws, in respect
of any of the Designated Receivables, have been complied with in all material
respects, and each such Designated Receivable and the sale or lease of the
Financed Vehicle or Financed Vehicles evidenced thereby complied at the time it
was originated or made and now complies in all material respects with all legal
requirements of the jurisdiction in which it was originated or made.
(d) Binding Obligation. Each Designated Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the Obligor
thereon, enforceable against the Obligor by the holder thereof in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors' rights in general and by equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
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(e) Security Interest in Financed Vehicle. In the case of a Retail
Note, immediately prior to the sale, transfer and assignment thereof pursuant
hereto, each Designated Retail Note was secured by a validly perfected first
priority security interest in the related Financed Vehicle or, in the event any
such Receivable was secured by more than one Financed Vehicle, in each related
Financed Vehicle, each in favor of NFC as secured party, or all necessary and
appropriate action had been commenced that will result, within 100 days
following the applicable Cutoff Date, in the valid perfection of a first
priority security interest in each related Financed Vehicle in favor of NFC as
secured party in each case (except for first priority security interests which
may exist in any accessions not financed by NFC) and, in the case of a Retail
Lease, the Collateral Agent (or its nominee) has a first priority perfected
security interest in such Retail Lease and has or upon completion of the titling
process with the appropriate titling authority will have a first priority
perfected security interest in the related Financed Vehicle which will be
validly assigned by NFC to NFRRC and is further assignable by NFRRC pursuant to
the Further Transfer and Servicing Agreements.
(f) Receivables In Force. No Designated Receivable has been satisfied,
subordinated or rescinded, and, in the case of the Designated Retail Notes, no
Financed Vehicle securing any Designated Receivable has been released from the
Lien of the related Receivable in whole or in part.
(g) No Waiver. Since the applicable Cutoff Date, no provision of any
Designated Receivable has been waived, altered or modified in any respect.
(h) No Amendments. Since the applicable Cutoff Date, no Designated
Receivable has been amended or otherwise modified such that the total number of
the Obligor's Scheduled Payments is increased or the Starting Receivable Balance
thereof is increased, and prior to the applicable Cutoff Date, no Designated
Receivable has been amended or restructured for credit reasons.
(i) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Designated
Receivable.
(j) No Liens. There are, to NFC's knowledge, no Liens or claims that
have been filed for work, labor or materials affecting any Financed Vehicle
relating to any Designated Receivable that are or may be prior to, or equal or
coordinate with, the security interest in each Financed Vehicle granted by the
Designated Receivable or the Collateral Agreement (except for Permitted Liens).
(k) No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Designated Receivable, and no
event has occurred and is continuing that with notice or the lapse of time would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Designated Receivable, and NFC or Harco Leasing, as the case
may be, has not waived any of the foregoing, in each case except for payments on
any Designated Receivables which are not more than 60 days past due (measured
from the date of any Scheduled Payment) as of the applicable Cutoff Date.
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(l) Insurance. Each Obligor on a Designated Receivable is required to
maintain a physical damage insurance policy for each Financed Vehicle of the
type that NFC requires in accordance with its customary underwriting standards
for the purchase or lease of truck, bus and trailer receivables, unless NFC has
in accordance with its customary procedures permitted an Obligor to self-insure
such Financed Vehicle.
(m) Maintenance. In the case of a Retail Lease, such Obligor is
required to maintain the related Financed Vehicle in good repair and is
obligated to pay the cost of all necessary repairs, maintenance and replacements
with respect to such Financed Vehicle and all costs, expenses, fees and charges
incurred in the use and operation of such Financed Vehicle and all taxes on or
relating to such Financed Vehicle.
(n) Good Title. On the date hereof, NFC has good title to the Series
2002-B Portfolio Interest and the Series 2002-B Portfolio Certificate, free and
clear of all Liens, (other than Permitted Liens). On the date hereof, upon
execution and delivery of this Agreement and the related PA Assignment by NFC
and the satisfaction of the conditions set forth in Section 4.02 hereof, good
and valid title to the Series 2002-B Portfolio Interest and the Series 2002-B
Portfolio Certificate will be validly and effectively conveyed to, and vested
in, NFRRC, free and clear of all Liens, other than Permitted Liens, and the
transfer of the Series 2002-B Portfolio Interest and the Series 2002-B Portfolio
Certificate by NFC to NFRRC has been perfected.
(o) Lawful Assignment. No Designated Receivable was originated in, or
is subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such Designated Receivable under
the Lease Purchase Agreement, this Agreement or any Further Transfer and
Servicing Agreements.
(p) All Filings Made. All filings necessary under the UCC in any
jurisdiction to give NFRRC a first priority perfected security or ownership
interest in the Designated Receivables and the Related Security (to the extent
it constitutes Code Collateral) shall have been made, and the Designated
Receivables constitute Code Collateral.
(q) One Original. There is only one original executed copy of each
Designated Receivable.
(r) No Documents or Instruments. No Designated Receivable, or
constituent part thereof, constitutes a "negotiable instrument" or "negotiable
document of title" (as such terms are used in the UCC).
(s) Maturity of Receivables. Each Designated Receivable has an
original term to maturity of not less than 6 months and not greater than 84
months and, as of the related Cutoff Date, had a remaining term to maturity of
not less than 6 months and not greater than 72 months.
(t) Scheduled Payments; Delinquency. As of the Initial Cutoff Date,
each Designated Receivable being purchased on the Closing Date had a first
scheduled payment that was due on or before October 31, 2002; as of the
applicable Cutoff Date, each Designated Receivable being purchased during the
Funding Period had or will have a first scheduled payment that was due on or
before the last day of the Monthly Period next following the
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Monthly Period in which such Cutoff Date occurs; as of the applicable Cutoff
Date, no Designated Receivable had or will have a payment that was more than 60
days past due; and as of the related Purchase Date, no Designated Receivable had
or will have a final scheduled payment that is due later than September 30,
2009.
(u) Vehicles. Each Financed Vehicle to which a Designated Receivable
relates was a new or used medium or heavy duty truck, truck chassis, bus or
trailer at the time the related Obligor executed the Retail Note or Retail
Lease.
(v) Origin. Each Designated Receivable was originated in the United
States and is payable in U.S. Dollars.
(w) Starting Receivable Balance. The Starting Receivable Balance of
each Designated Receivable as of its applicable Cutoff Date shall be $1,000 or
more.
(x) Concentration. After giving effect to the transfer of such
Designated Receivables to the Trust under the Further Transfer and Servicing
Agreements, (i) the aggregate Receivable Balance of all Receivables from a
single Obligor shall not be more than 2.00% of the aggregate Receivable Balance
of all Receivables in the Trust, (ii) the weighted average Annual Percentage
Rate of the Receivables in the Trust shall not be less than 7.25%, (iii) the
weighted average remaining maturity of the Receivables in the Trust shall not be
greater than 53 months and (iv) the aggregate Starting Receivable Balance of the
Retail Leases in the Trust will not exceed 10.0% of the Aggregate Starting
Receivables Balance.
(y) Selection Criteria. The Designated Receivables were selected on a
random basis from all Receivables satisfying the selection criteria described
herein, and no selection procedures believed to be adverse to NFRRC or to
holders of the Securities issued under the Further Transfer and Servicing
Agreements were utilized in selecting the Designated Receivables from those
Receivables of NFC, Truck Retail Instalment Paper Corp. and Harco Leasing
Company, Inc., its wholly owned subsidiaries, which meet the selection criteria
under this Agreement.
(z) Temporary Interest Free Receivables. Each Designated Receivable
that is a Temporary Interest Free Receivable is an Equal Payment Fully
Amortizing Receivable and has an interest free period ranging up to 12 months
after its applicable Cutoff Date.
(aa) No Government Contracts. No Obligor under any of the Designated
Receivables is a governmental authority of the United States or any state or
political subdivision thereof.
SECTION 3.02 Additional Representations and Warranties of NFC. NFC hereby
represents and warrants to NFRRC as of each Purchase Date and as of the related
Closing Date under the Further Transfer and Servicing Agreements, in its
capacity as the seller of the Receivables hereunder, that:
(a) Organization and Good Standing. NFC has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are
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presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Receivables.
(b) Due Qualification. NFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires or shall require such qualification.
(c) Power and Authority. NFC has the power and authority to execute
and deliver this Agreement and to carry out its terms; NFC has full power and
authority to sell and assign the Designated Receivables and the Related Security
to NFRRC, has duly authorized such sale and assignment to NFRRC by all necessary
corporate action; and the execution, delivery and performance of this Agreement
have been duly authorized by NFC by all necessary corporate action.
(d) Valid Sale; Binding Obligation. This Agreement, together with the
applicable PA Assignment, when duly executed and delivered, shall (upon
satisfaction of the conditions set forth in Section 4.02(b) hereof relating to
the related Designated Receivables) constitute a valid sale, transfer and
assignment of such Designated Receivables and Related Security, enforceable
against creditors of and purchasers from NFC; and this Agreement, together with
the applicable PA Assignment, when duly executed and delivered, shall (upon
satisfaction of the conditions set forth in Section 4.02(b) hereof relating to
such Designated Receivables) constitute a legal, valid and binding obligation of
NFC enforceable against NFC in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and any PA Assignment, and the fulfillment of the terms of this
Agreement and any PA Assignment shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or by-laws of
NFC, or any indenture, agreement, mortgage, deed of trust or other instrument to
which NFC is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement, any PA Assignment or any Further Transfer and Servicing
Agreement), or violate any law or, to NFC's knowledge, any order, rule or
regulation applicable to NFC of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over NFC or any of its properties.
(f) No Proceedings. There are no proceedings or, to NFC's knowledge,
investigations pending or, to NFC's knowledge, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over NFC or its properties (i) asserting the
invalidity of this Agreement or any PA Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any PA
Assignment, or (iii) seeking any determination or ruling that might materially
and
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adversely affect the performance by NFC of its obligations under, or the
validity or enforceability of, this Agreement or any PA Assignment.
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by NFC of this Agreement
or any PA Assignment or the consummation by NFC of the transactions contemplated
hereby or thereby except as expressly contemplated herein or therein.
(h) ERISA. No notice of a Lien arising under Title I or Title IV of
ERISA has been filed under Section 6323 (a) of the Code (or any successor
provision) against, or otherwise affecting the assets NFC.
(i) Solvency. NFC is, and after giving effect to the transactions
contemplated to occur on such date will be, solvent.
(j) Investment Company Act. NFC is not, and is not controlled by, an
"investment company" within the meaning of, and is not required to register as
an "investment company" under, the Investment Company Act.
SECTION 3.03 Representations and Warranties of NFRRC. NFRRC hereby
represents and warrants to NFC as of each Purchase Date:
(a) Organization and Good Standing. NFRRC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Designated Receivables.
(b) Due Qualification. NFRRC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification.
(c) Power and Authority. NFRRC has the power and authority to execute
and deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement have been duly authorized by NFRRC by
all necessary corporate action.
(d) No Violation. The consummation by NFRRC of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement shall not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of NFRRC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which NFRRC is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement, any PA Assignment or
any Further Transfer and Servicing Agreement), or violate any law or, to NFRRC's
knowledge, any order, rule or regulation applicable to NFRRC of any court or of
any federal or state regulatory body,
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administrative agency or other governmental instrumentality having jurisdiction
over NFRRC or any of its properties.
(e) No Proceedings. There are no proceedings or, to NFRRC's knowledge,
investigations pending or, to NFRRC's knowledge, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over NFRRC or its properties (i) asserting
the invalidity of this Agreement or any PA Assignment, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by NFRRC of its obligations under, or the validity or
enforceability of, this Agreement or any PA Assignment.
(f) Binding Obligation. This Agreement shall constitute a legal, valid
and binding obligation of NFRRC enforceable against NFRRC in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by NFRRC of this
Agreement, or the consummation by NFRRC of the transactions contemplated hereby
except as expressly contemplated herein.
SECTION 3.04 Representations and Warranties Regarding Titling Trust. NFC
makes the following representations and warranties as to the Titling Trust on
which NFRRC relies in accepting the Designated Receivables. Such representations
and warranties speak as of the Purchase Date for such Designated Receivables,
and as of the date of the related transfer of such Designated Receivables under
the Further Transfer and Servicing Agreements, and shall survive the sale,
transfer and assignment of such Designated Receivables to NFRRC and the
subsequent assignment and transfer thereof pursuant to the Further Transfer and
Servicing Agreements:
(a) Organization and Good Standing. The Titling Trust is a statutory
business trust duly formed, validly existing and in good standing under the laws
of the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Retail Leases.
(b) Due Qualification. The Titling Trust is duly qualified to do
business as a foreign business trust and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business or
the performance of its obligations make such qualification necessary and has all
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and for purposes of the
transactions contemplated by the Basic Documents, except to the extent that the
failure to have any such governmental licenses, authorizations, consents or
approvals would not, in the aggregate, have a Material Adverse Effect with
respect to the Titling Trust.
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(c) Power and Authority. The Titling Trust has the power and authority
to execute and deliver the Basic Documents to which it is a party and to perform
its obligations hereunder and the execution, delivery and performance of the
Basic Documents to which it is a party have been duly authorized by the Titling
Trust. (d) Valid and Binding. Each of the Basic Documents to which the Titling
Trust is a party has been duly executed and delivered by or on behalf of the
Titling Trust and constitutes a legal, valid and binding obligation of the
Titling Trust enforceable against the Titling Trust in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement, and the other Basic Documents, and the fulfillment of the terms
thereof shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the Titling Trust Agreement, or any indenture, agreement, mortgage, deed
of trust or other instrument to which the Titling Trust is a party or by which
it is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument (other than this Agreement or any other Basic
Document), or violate any law or, to NFC's knowledge, any order, rule or
regulation applicable to the Titling Trust of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Titling Trust or any of its
properties.
(f) No Proceedings. There are no proceedings or, to NFC's knowledge,
investigations pending or, to NFC's knowledge, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Titling Trust or its properties (i)
asserting the invalidity of any Basic Document to which the Titling Trust is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any Basic Document to which the Titling Trust is a party, or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Titling Trust of its obligations under, or the
validity or enforceability of, this Agreement, any PA Assignment or any Basic
Document to which the Titling Trust is a party.
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by the Titling Trust of
any Basic Document to which the Titling Trust is a party, or the consummation by
the Titling Trust of the transactions contemplated thereby except as expressly
contemplated herein or therein.
(h) Taxes. The Titling Trust has filed or caused to be filed all tax
returns which are required to be filed by the Titling Trust (with respect to
itself) and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property by any Governmental
Authority (other than any amount the validity of which is being contested in
good faith by appropriate proceedings and with respect to which reserves in
accordance with GAAP have been provided on the books of the Titling Trust). No
notice of any
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Lien in respect of unpaid taxes or assessments (other than a Permitted Lien) has
been filed by any taxing authority against, or otherwise affecting the assets
of, the Titling Trust and remains in effect. The Titling Trust has paid all fees
and expenses required to be paid by it in connection with the conduct of its
business, the maintenance of its existence and its qualification as a foreign
business trust.
(i) ERISA. No notice of a Lien arising under Title I or IV of ERISA
has been filed under Section 6323 (a) of the Code (or any successor provision)
against, or otherwise affecting the assets of the Titling Trust.
(j) Investment Company Act. The Titling Trust is not, and is not
controlled by, an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the Investment Company
Act.
(k) Series 2002-B Portfolio Certificate. The Series 2002-B Portfolio
Certificate has been duly executed and delivered by the General Interest Trustee
in accordance with the Titling Trust Agreement, has been duly issued in
accordance with the Titling Trust Agreement and is entitled to the benefits
afforded by the Titling Trust Agreement.
ARTICLE IV
CONDITIONS
SECTION 4.01 Conditions to Obligation of NFRRC. The obligation of NFRRC to
purchase Designated Receivables and the Related Security hereunder on any
Purchase Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of NFC in Section 3.01 regarding such Designated Receivables and the
Related Security being transferred on such Purchase Date, and the
representations and warranties of NFC in Sections 3.02 and 3.04, shall be true
and correct as of such Purchase Date (or if specified as applying to some other
date, as of such date), with the same effect as if then made, and NFC shall have
performed all obligations to be performed by it hereunder on or prior to such
Purchase Date.
(b) No Repurchase Event. No Repurchase Event (as defined in Section
5.04 below) shall have occurred on or prior to such Purchase Date with respect
to any of such Designated Receivables.
(c) Computer Files Marked. NFC shall, at its own expense, on or prior
to such Purchase Date, (i) indicate in its computer files created in connection
with such Designated Receivables that such Designated Receivables have been sold
to NFRRC pursuant to this Agreement and the related PA Assignment by NFC and
(ii) deliver to NFRRC the Composite Schedule of Receivables certified by an
officer of NFC to be true, correct and complete (as supplemented by the
schedules to the related Subsequent Transfer PA Assignment).
(d) Documents to be Delivered By NFC.
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(i) The PA Assignment. On such Purchase Date, NFC shall execute
and deliver to NFRRC the PA Assignment of the Designated Receivables and
the Related Security.
(ii) Portfolio Certificate. On the Closing Date, NFC shall
deliver the Series 2002-B Portfolio Certificate to or at the direction of
NFRRC.
(iii) Evidence of UCC Filing. On or prior to such Purchase Date,
NFC shall record and file, at its own expense, a UCC-1 financing statement
in each jurisdiction in which required by applicable law, naming NFC as
seller or debtor, naming NFRRC as purchaser or secured party, naming such
Designated Receivables and Related Security as collateral, meeting the
requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect under the UCC the sale, transfer, assignment and
conveyance of such Designated Receivables and the Related Security (to the
extent it constitutes Code Collateral) to NFRRC. NFC shall deliver a
file-stamped copy, or other evidence satisfactory to NFRRC of such filing,
to NFRRC on or prior to such Purchase Date.
(iv) Other Documents. On such Purchase Date, NFC shall provide
such other documents as NFRRC may reasonably request.
(e) Funding Period. The Funding Period shall not have terminated.
(f) Other Transactions. The related transactions contemplated by the
Further Transfer and Servicing Agreements shall be consummated on or prior to
the related Purchase Date (and all conditions precedent thereto shall be
satisfied) to the extent that such transactions are intended to be substantially
contemporaneous with the transactions hereunder.
SECTION 4.02 Conditions To Obligation of NFC. The obligation of NFC to sell
the Designated Receivables to NFRRC hereunder on any Purchase Date is subject to
the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of NFRRC hereunder shall be true and correct as of such Purchase
Date, with the same effect as if then made, and NFRRC shall have performed all
obligations to be performed by it hereunder on or prior to such Purchase Date.
(b) Purchase Price. On each Purchase Date, NFRRC shall pay to NFC the
Purchase Price, payable on such date as provided in Section 2.02 of this
Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
NFC agrees with NFRRC as follows:
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements. To
the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any
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provision of the Further Transfer and Servicing Agreements, the Further Transfer
and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title.
(a) Filings. NFC shall prepare and file such financing statements and
cause to be prepared and filed such continuation and other statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of NFRRC under this Agreement in the
Designated Receivables and the Related Security, the Series 2002-B Portfolio
Interest and the Series 2002-B Portfolio Certificate and in the proceeds thereof
and hereby authorizes NFRRC to file any such financing statements or
continuation statements relating to all or any part thereof; provided, however,
that, with respect to a Retail Lease, NFC shall not be obligated to transfer the
title to any Financed Vehicle. NFC shall deliver (or cause to be delivered) to
NFRRC file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Name Change. NFC shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by NFC in accordance with Section 5.02(a)
seriously misleading within the meaning of Section 9-506 of the UCC, unless it
shall have given NFRRC at least 60 days prior written notice thereof and shall
file such financing statements or amendments as may be necessary to continue the
perfection of NFRRC's security interest in the Designated Receivables and the
Related Security.
(c) Jurisdiction of Formation; Maintenance of Offices. NFC shall give
NFRRC at least 60 days prior written notice of any change in its jurisdiction of
formation and shall file such financing statements or amendments as may be
necessary to continue the perfection of NFRRC's security interest in the
Designated Receivables and the Related Security. NFC shall at all times maintain
each office from which it services Designated Receivables and its jurisdiction
of formation within the United States of America.
SECTION 5.03 Other Liens or Interests. Except for the conveyances hereunder
and as contemplated by the Further Transfer and Servicing Agreements, NFC shall
not sell, pledge, assign or transfer the Designated Receivables and the Related
Security, the Series 2002-B Portfolio Interest or the Series 2002-B Portfolio
Certificate to any other Person, or grant, create, incur, assume or suffer to
exist any Lien (except any Permitted Lien) on any interest therein, and NFC
shall defend the right, title and interest of NFRRC in, to and under the
Designated Receivables and Related Security, the Series 2002-B Portfolio
Interest and the Series 2002-B Portfolio Certificate against all claims of third
parties claiming through or under NFC.
SECTION 5.04 Repurchase Events. By its execution of the Further Transfer
and Servicing Agreements to which it is a party, NFC shall be deemed to
acknowledge the assignment by NFRRC of such of its right, title and interest in,
to and under this Agreement to the Subsequent Transferee as shall be provided in
the Further Transfer and Servicing Agreements. NFC hereby covenants and agrees
with NFRRC for the benefit of NFRRC and the Interested Parties, that in the
event of (i) a breach of any of NFC's representations and warranties contained
in Section 3.01 hereof with respect to any Designated Receivable or (ii) a
breach by
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NFC of Section 5.03 hereof with respect to any Designated Receivable, the Series
2002-B Portfolio Interest or the Series 2002-B Portfolio Certificate which
breach has a material adverse effect on NFRRC's interest in such Designated
Receivable, the Series 2002-B Portfolio Interest or the Series 2002-B Portfolio
Certificate unless, in either case, such breach shall have been cured in all
material respects (each a "Repurchase Event") as of the second Accounting Date
following NFC's discovery or its receipt of notice of breach (or, at NFC's
election, the first Accounting Date following such discovery), NFC will
repurchase the Designated Receivable (or in the case of the Series 2002-B
Portfolio Interest or Series 2002-B Portfolio Certificate, such Designated
Retail Leases which are then included in the Series 2002-B Portfolio Interest or
Series 2002-B Portfolio Certificate) from the Subsequent Transferee (if the
Subsequent Transferee is then the Owner of such Designated Receivable) on the
related Distribution Date for an amount equal to the Warranty Payment, without
further notice from NFRRC hereunder. Upon the occurrence of a Repurchase Event
with respect to a Designated Receivable for which NFRRC is the Owner, NFC agrees
to repurchase such Designated Receivable from NFRRC for an amount and upon the
same terms as NFC would be obligated to repurchase such Designated Receivable
from the Subsequent Transferee if the Subsequent Transferee was then the Owner
thereof, and upon payment of such amount, NFC shall have such rights with
respect to such Designated Receivable as if NFC had purchased such Designated
Receivable from the Subsequent Transferee as the Owner thereof. It is understood
and agreed that the obligation of NFC to repurchase any Designated Receivable as
to which a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against NFC for such breach available to
NFRRC or any Interested Party.
SECTION 5.05 Indemnification. NFC shall indemnify NFRRC for any liability
as a result of the failure of a Designated Receivable to be originated in
compliance with all requirements of law and for any breach of any of its
representations and warranties contained herein. This indemnity obligation shall
be in addition to any obligation that NFC may otherwise have.
SECTION 5.06 Further Assignments. NFC acknowledges that NFRRC shall,
pursuant to the Further Transfer and Servicing Agreements, sell the Series
2002-B Portfolio Interest, the Series 2002-B Portfolio Certificate, the
Designated Receivables and the Related Security to the Subsequent Transferee and
assign its rights hereunder to the Subsequent Transferee, subject to the terms
and conditions of the Further Transfer and Servicing Agreements, and that the
Subsequent Transferee may in turn further pledge, assign or transfer its rights
in the Series 2002-B Portfolio Interest, the Series 2002-B Portfolio
Certificate, the Designated Receivables and the Related Security and this
Agreement. NFC further acknowledges that NFRRC may assign its rights under the
Servicing Agreement to the Subsequent Transferee.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after each
Purchase Date, NFC shall transfer to the account or accounts designated by NFRRC
(or by the Subsequent Transferee under the Further Transfer and Servicing
Agreements) all collections (from whatever source) on or with respect to the
Designated Receivables and the Related Security conveyed by NFC to NFRRC on such
Purchase Date pursuant to Section 2.01.
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SECTION 5.08 Limitation on Transfer of International Purchase Obligations.
NFRRC acknowledges and agrees that the rights pursuant to the International
Purchase Obligations are personal to NFC, and only the proceeds of such rights
have been assigned to NFRRC. NFRRC is not and is not intended to be a
third-party beneficiary of such rights and, accordingly, such rights will not be
exercisable by, enforceable by or for the benefit of, or preserved for the
benefit of, NFRRC, the Issuer, the Owner Trustee or the Indenture Trustee.
SECTION 5.09 Sale Treatment. NFC intends to treat each transfer and
assignment described herein as a sale for accounting and tax purposes.
SECTION 5.10 No Petition; Waiver of Claims.
(a) Notwithstanding any prior termination of the Series 2002-B
Portfolio Supplement, NFRRC covenants and agrees that it shall not, prior to the
date which is one year and a day after which all obligations under each
Permitted Financing have been paid in full, acquiesce, petition or otherwise
invoke, or join any other Person in acquiescing, petitioning or otherwise
invoking, against the Titling Trust or any Special Purpose Entity, any
proceeding in court or with any governmental authority for the purpose of (i)
commencing or sustaining a case against the Titling Trust or such Special
Purpose Entity under any federal or state bankruptcy, insolvency or similar law,
or (ii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of all or any substantial part of the
respective property of the Titling Trust or such Special Purpose Entity, or
(iii) ordering the winding up or liquidation of the affairs of the Titling Trust
or such Special Purpose Entity.
(b) Except as otherwise provided in the Titling Trust Agreement, NFRRC
hereby releases all Claims to the Titling Trust Assets allocated to the General
Interest and to each Portfolio Interest other than the Series 2002-B Portfolio
Interest (other than Claims to other Portfolio Interests obtained under other
purchase agreements) whether then or thereafter created and, in the event that
such release is not given effect, to fully subordinate all Claims it may be
deemed to have against the Titling Trust Assets allocated to the General
Interest and each Portfolio Interest other than the Series 2002-B Portfolio
Interest (other than Claims to other Portfolio Interests obtained under other
purchase agreements) whether then or thereafter created.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01 Amendment. (a)This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
NFC and NFRRC; provided, however, that this Agreement may not be amended unless
such amendment is in accordance with the provisions of Section 5.01 of the
Pooling Agreement as if such Section 5.01 were contained herein and were
applicable to this Agreement. Prior to the execution of any such amendment, NFC
shall furnish written notification of the substance of such amendment to each of
the Rating Agencies.
(b) Notwithstanding any other provision of this Agreement, if the
consent of the Swap Counterparty is required pursuant to the Swap Counterparty
Rights Agreement to
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amend this Agreement, any such purported amendment shall be null and void ab
initio unless the Swap Counterparty consents in writing to such amendment.
SECTION 6.02 Survival. The representations, warranties and covenants of NFC
set forth in Article III and Article V of this Agreement shall remain in full
force and effect and shall survive each Purchase Date and each Closing under the
Further Transfer and Servicing Agreements.
SECTION 6.03 Notices. All demands, notices and communications under this
Agreement shall be delivered as specified in Appendix B to the Pooling
Agreement.
SECTION 6.04 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and each PA Assignment shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Illinois, without giving effect to any choice of law or conflict
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Illinois.
SECTION 6.05 Waivers. No failure or delay on the part of NFRRC in
exercising any power, right or remedy under this Agreement or any PA Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
SECTION 6.06 Costs and Expenses. NFC agrees to pay all reasonable
out-of-pocket costs and expenses of NFRRC, including fees and expenses of
counsel, in connection with the perfection as against third parties of NFRRC's
right, title and interest in, to and under the Designated Receivables, Related
Security, the Series 2002-B Portfolio Interest and the Series 2002-B Portfolio
Certificate and the enforcement of any obligation of NFC hereunder.
SECTION 6.07 Confidential Information. NFRRC agrees that it shall neither
use nor disclose to any person the names and addresses of the Obligors, except
in connection with the enforcement of NFRRC's rights hereunder, under the
Designated Receivables, under the Further Transfer and Servicing Agreements or
as required by law.
SECTION 6.08 Headings. The various headings in this Agreement are for
purposes of reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
SECTION 6.09 Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 6.10 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
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validity or enforceability of the other provisions of this Agreement or of any
Securities or rights of any Owner.
SECTION 6.11 Further Assurances. NFC and NFRRC agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other more fully to effect
the purposes of this Agreement, including the preparation of any financing
statements or continuation statements relating to the Designated Receivables,
Related Security, the Series 2002-B Portfolio Interest and the Series 2002-B
Portfolio Certificate for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 6.12 No Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, the Owners and their
respective successors and permitted assigns. Except as otherwise expressly
provided in this Agreement, no other Person shall have any right or obligation
hereunder.
SECTION 6.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 6.14 No Petition Covenants. Notwithstanding any prior termination
of this Agreement, NFC shall not, prior to the date which is one year and one
day after the final distribution with respect to the Securities to the Note
Distribution Account or the Certificate Distribution Account, as applicable,
acquiesce, petition or otherwise invoke or cause any Person to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against NFRRC under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of NFRRC or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of NFRRC.
* * * * *
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President and Treasurer
EXHIBIT A
FORM OF INITIAL PA ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as of
November , 2002 (the "Purchase Agreement"), between Navistar Financial
--
Corporation, a Delaware corporation ("NFC"), and Navistar Financial Retail
Receivables Corporation, a Delaware corporation ("NFRRC"), NFC does hereby sell,
assign, transfer and otherwise convey unto NFRRC, without recourse, all right,
title and interest of NFC in, to and under
(a) the Retail Notes identified on the Schedule of Retail Notes attached
hereto having an aggregate Starting Receivable Balance of $_______________ (the
"Designated Retail Notes") and the Related Retail Note Assets associated with
the Designated Retail Notes;
(b) the Series 2002-B Portfolio Interest and the beneficial interest in the
Series 2002-B Portfolio Assets, including the Retail Leases identified on the
Schedule of Retail Leases attached hereto having an aggregate Starting
Receivable Balance of $_______________ (the "Designated Retail Leases" and
together with the Designated Retail Notes, the "Designated Receivables") and the
Related Titling Trust Assets associated with the Designated Retail Leases and
the Series 2002-B Portfolio Certificate; and
(c) the rights, but not the obligations, of NFC under the Lease Purchase
Agreement with respect to the Designated Retail Leases.
The foregoing sale does not constitute and is not intended to result in any
assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This PA Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
* * * * *
A-1
IN WITNESS WHEREOF, the undersigned has caused this PA Assignment to
be duly executed as of November 19, 2002.
NAVISTAR FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
EXHIBIT B
FORM OF SUBSEQUENT TRANSFER PA ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated
as of , 200 (the "Purchase Agreement"), between Navistar Financial
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Corporation, a Delaware corporation ("NFC"), and Navistar Financial Retail
Receivables Corporation, a Delaware corporation ("NFRRC"), NFC does hereby sell,
assign, transfer and otherwise convey unto NFRRC, without recourse, all right,
title and interest of NFC in, to and under
(a) the Retail Notes identified on the Schedule of Retail Notes attached
hereto having an aggregate Starting Receivable Balance of $_______________ (the
"Designated Retail Notes") and the Related Retail Note Assets associated with
the Designated Retail Notes;
(b) the beneficial interest the Retail Leases identified on the Schedule of
Retail Leases attached hereto having an aggregate Starting Receivable Balance of
$_______________ (the "Designated Retail Leases" and together with the
Designated Retail Notes, the "Designated Receivables") and the Related Titling
Trust Assets associated with the Designated Retail Leases; and
(c) the rights, but not the obligations, of NFC under the Lease Purchase
Agreement with respect to the Designated Retail Leases.
The foregoing sale does not constitute and is not intended to result in any
assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This Subsequent Transfer PA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Subsequent
Transfer PA Assignment to be duly executed as of , 200 .
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NAVISTAR FINANCIAL CORPORATION
By:
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Name:
Title:
APPENDIX A
Additional Representations and Warranties
1. This Agreement, the Pooling Agreement and the Indenture create a valid and
continuing security interest (as defined in the applicable UCC) in the
Designated Receivables in favor of NFRRC, the Issuer and the Indenture
Trustee, respectively, which security interest is prior to all other Liens,
and is enforceable as such as against creditors of and purchasers from NFC,
NFRRC and the Issuer, respectively.
2. With respect to Retail Notes, NFC has taken all steps necessary to perfect
its security interest against each Obligor in the property securing the
Designated Receivables.
3. The Designated Receivables constitute "tangible chattel paper" within the
meaning of the applicable UCC.
4. On the Closing Date and on the applicable Subsequent Transfer Date, NFC
owns and has good and marketable title to the related Designated Retail
Notes free and clear of any Lien, claim or encumbrance of any Person, other
than Permitted Liens. Upon execution and delivery to NFC of the Lease
Purchase Agreement and the Series 2002-B Portfolio Certificate. On the
Closing Date and on the applicable Subsequent Transfer Date, NFC shall own
and will have good and marketable title to the related Designated Retail
Leases free and clear of any Lien, claim or encumbrance of any Person,
other than Permitted Liens.
5. NFC has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Designated Receivables granted to NFRRC hereunder,
the Issuer under the Pooling Agreement and the Indenture Trustee under the
Indenture.
6. Other than the security interests granted pursuant to the Basic Documents,
none of NFC, NFRRC or the Issuer has pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Designated
Receivables. To NFC's knowledge, none of NFC, NFRRC or the Issuer has
authorized the filing of, and NFC is not aware of, any financing statements
against NFC, NFRRC or the Issuer that include a description of collateral
covering the Designated Receivables other than any financing statements
relating to the security interests granted under the Basic Documents or
that has been terminated. NFC is not aware of any judgment or tax lien
filings against NFC, NFRRC or the Issuer.
7. NFC, as Servicer has in its possession all original copies of the documents
that constitute or evidence the Designated Receivables. The documents that
constitute or evidence the Designated Receivables do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than NFRRC. All financing statements filed or
to be filed against NFC, NFRRC or the Issuer in favor of NFRRC, the Issuer
or the Indenture Trustee, respectively in connection herewith
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describing the Designated Receivables contain a statement other than as
described in the Basic Documents, to the following effect: "A purchase of
or security interest in any collateral described in this financing
statement will violate the rights of the Noteholders."
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