POOLING AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
NAVISTAR FINANCIAL 200 OWNER TRUST
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ISSUER
DATED AS OF , 200
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.01. Definitions............................................................................1
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ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE
OF CERTIFICATES..........................................................................................1
SECTION 2.01. Conveyance of Initial Receivables......................................................1
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SECTION 2.02. Conveyance of Subsequent Receivables...................................................3
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SECTION 2.03. Custody of Receivable Files............................................................5
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SECTION 2.04. Acceptance by Issuer; Limitation on Transfer of International
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Purchase Obligations...................................................................6
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SECTION 2.05. Representations and Warranties as to the Receivables...................................6
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SECTION 2.06. Repurchase of Receivables Upon Breach of Warranty......................................7
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ARTICLE III
REPRESENTATIONS AND WARRANTIESOF THE SELLER..............................................................7
SECTION 3.01. Representations and Warranties of the Seller...........................................7
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SECTION 3.02. Liability of Seller....................................................................9
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SECTION 3.03. Merger or Consolidation of, or Assumption of the Obligations of,
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Seller; Amendment of Certificate of Incorporation......................................9
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SECTION 3.04. Limitation on Liability of Seller and Others..........................................10
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SECTION 3.05. Seller May Own Securities.............................................................10
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ARTICLE IV
TERMINATION.............................................................................................10
SECTION 4.01. Optional Purchase of All Receivables..................................................10
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SECTION 4.02. Termination...........................................................................11
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ARTICLE V
MISCELLANEOUS PROVISIONS................................................................................11
SECTION 5.01. Amendment.............................................................................11
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SECTION 5.02. Protection of Title to Owner Trust Estate.............................................13
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SECTION 5.03. Notices...............................................................................14
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SECTION 5.04. Governing Law.........................................................................14
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SECTION 5.05. Severability of Provisions............................................................14
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SECTION 5.06. Assignment............................................................................15
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SECTION 5.07. Third-Party Beneficiaries.............................................................15
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SECTION 5.08. Separate Counterparts.................................................................15
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SECTION 5.09. Headings and Cross-References.........................................................15
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SECTION 5.10. Assignment to Indenture Trustee.......................................................15
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SECTION 5.11. No Petition Covenants; Waiver of Claims...............................................15
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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
POOLING AGREEMENT
THIS POOLING AGREEMENT is made as of , 200 by and between
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Navistar Financial Retail Receivables Corporation, a Delaware corporation
("NFRRC" and, in its capacity as the Seller hereunder, the "Seller") and
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Navistar Financial 200 Owner Trust, a Delaware business trust (the "Issuer").
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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
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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
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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
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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
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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
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this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Initial Receivables. In consideration of the
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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),
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pursuant to an assignment in the form attached hereto as Exhibit B (the "Initial
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PSA Assignment"), all right, title and interest of the Seller in, to and under:
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(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 200 Portfolio Interest, the Series 200 Portfolio
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Certificate and the beneficial interest in the Series 200 Portfolio Assets,
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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 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 and $ into the Pre-Funding
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Account and $ into the Negative Carry Account. It is the intention of
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the Seller that the transfer and assignment contemplated by this Section 2.01
shall constitute a sale of the Initial Receivables, the Series 200 Portfolio
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Interest and the Series 200 Portfolio Certificate from the Seller to the Issuer
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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.
SECTION 2.02. Conveyance of Subsequent Receivables. (a) Subject to
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satisfaction of the conditions set forth in Section 2.02(b) below, in
consideration of the Issuer's delivery on
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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
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2.06), pursuant to an assignment in substantially the form of Exhibit C (a
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"Subsequent Transfer PSA Assignment"), all right, title and interest of the
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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 200 Portfolio Assets,
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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 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
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
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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 %, (B) the weighted average remaining maturity of the Receivables
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in the Trust shall not be greater than months, (C) the aggregate
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Receivables Balance of all Receivables owing from a single Obligor shall
not be more than % of the aggregate Receivables Balance of all
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Receivables in the Trust, and (D) the Aggregate Residual Value of all
Receivables in the Trust shall not exceed 10% of the Aggregate Receivables
Balance of all Receivables in the Trust;
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(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 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), (u), (x), and (y) of the Purchase
Agreement;
(xi) S&P shall have notified the Seller in writing that, following the
addition of all such Subsequent Receivables to the Trust, the Notes will be
rated by S&P in the same rating category as they were rated by S&P prior to
such addition; and
(xii) [Each Retail Leases has been allocated to the Series 200
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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 $ . If on
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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 the Noteholders with respect to a failure of the
Seller to comply with this covenant.
SECTION 2.03. Custody of Receivable Files. In connection with the
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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:
(a) the fully executed original of the Retail Note or Retail Lease for such
Receivable;
(b) documents evidencing or related to any Insurance Policy;
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(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
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Purchase Obligations. The Issuer does hereby accept all consideration conveyed
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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
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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 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.
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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 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
200 Portfolio Interest and the Series 200 Portfolio Certificate in trust and
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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
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the sale, transfer and assignment of the Receivables, the Series 200 Portfolio
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Interest and the Series 200 Portfolio Certificate to the Issuer and the pledge
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thereof to the Indenture Trustee pursuant to the Indenture.
SECTION 2.06. Repurchase of Receivables Upon Breach of Warranty. Upon
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discovery by the Seller, the Servicer or either Trustee of a breach of any of
the representations and warranties in Section 3.01 of the Purchase Agreement
(and, with respect to subsection 3.01(j) of the Purchase Agreement, irrespective
of any limitation regarding knowledge of NFC) or in Section 2.05 or Section 3.01
of this Agreement that materially and adversely affects the interests of the
Securityholders in any Receivable, the party discovering such breach shall give
prompt written notice thereof to the others. As of the second Accounting Date
following its discovery or its receipt of notice of breach (or, at the Seller's
election, the first Accounting Date following such discovery 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
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makes the following representations and warranties as to itself on which the
Issuer is relying in acquiring the Receivables, the Series 200 Portfolio
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Interest and the Series 200 Portfolio Certificate hereunder and issuing the
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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
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is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Receivables;
(b) Due Qualification. The Seller is duly qualified to do business as a
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foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which
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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
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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
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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
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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; and
(f) No Proceedings. There are no proceedings or, to the Seller's knowledge,
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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
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
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200 Portfolio Interest and the Series 200 Portfolio Certificate, free and
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clear of all Liens (other than Permitted Liens). On the date hereof, upon
execution and delivery of this Agreement and the related PSA
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Assignment by the Seller, good and valid title to the Series 200 Portfolio
-
Interest and the Series 200 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 200 Portfolio
-
Interest and the Series 200 Portfolio Certificate by the Seller to the Issuer
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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
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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,
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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
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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
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of, Seller; Amendment of Certificate of Incorporation.
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(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.
(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
9
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 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
10
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
Securityholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provision in this Agreement that may be defective or inconsistent with any other
provision in this Agreement or any other Basic Document, (iii) to add or
supplement any credit enhancement for the benefit of the Noteholders of any
class or the Certificateholders provided that if any such addition shall affect
any class of Noteholders or the Certificateholders differently than any other
class of Noteholders or the Certificateholders, respectively, then such addition
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any class of Noteholders or the
Certificateholders, (iv) add to the covenants, restrictions or obligations of
the Seller or either Trustee or (v) add, change or eliminate any other provision
of this Agreement in any manner that shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the
Securityholders.
(b) This Agreement may also be amended from time to time by the Seller 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 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 Securityholders; provided,
--------
however, that no such amendment shall (i)(a) increase or reduce in any manner
-------
the amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any Security,
the Interest Rate for any class of Notes or the Specified Reserve Account
Balance or (b) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the holders of all Securities then outstanding
or (ii) amend any provision of this Agreement (including Section 5.06) which
requires actions taken
11
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 Securityholders described in such Section.
(c) Prior to the execution of any such amendment or consent, the Indenture
Trustee shall furnish written notification to the Rating Agencies of the
substance of such amendment or consent as provided to the Indenture Trustee.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, and the Indenture Trustee shall
furnish written notification to each Noteholder of the substance of such
amendment or consent as provided to the Indenture Trustee.
(e) It shall not be necessary for the consent of Securityholders pursuant
to subsection 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 Securityholders provided for in this Agreement) and of evidencing the
authorization of the execution thereof by Securityholders shall be subject to
such reasonable requirements as either Trustee may prescribe, including the
establishment of record dates pursuant to paragraph number 3 of the Note
Depository Agreement.
(f) Prior to the execution of any amendment to this Agreement, each Trustee
shall be entitled to receive and rely upon the Opinion of Counsel referred to in
subsection 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.
SECTION 5.02. Protection of Title to Owner Trust Estate.
-----------------------------------------
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of the Issuer under this Agreement in the Receivables,
the Series 200 Portfolio Interest and the Series 200 Portfolio Certificate and
- -
the Indenture Trustee's security interest in the Receivables, the Series 200
-
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
12
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, bus and trailer receivables to
any prospective purchaser, lender or other transferee, the Seller shall give to
such prospective purchaser, lender or other transferee computer tapes, records
or print-outs (including any restored from back-up archives) that, if they refer
in any manner whatsoever to any Receivable, indicate clearly that such
Receivable has been sold and is owned by the 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.
13
(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 each Trustee in the
Receivables, the Series 200 Portfolio Interest and the Series 200 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.
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.
14
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.
(b) Notwithstanding any prior termination of the Series 200 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 200 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 200 Portfolio Interest whether then or
-
thereafter created.
15
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 not
-----------------------------
in its individual capacity but solely as Indenture Trustee and in no event shall
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 not in its
-------------------------------
individual capacity but solely in its capacity as Owner Trustee and in no event
shall 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 200 OWNER TRUST
-
By: , not in
---------------------------------
its individual capacity but solely as Owner
Trustee on behalf of the Trust
By:
------------------------------------------
Name:
Title:
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By:
--------------------------------------------
Name:
Title:
Acknowledged and Accepted:
, not in
----------------------------
its individual capacity but solely as
Indenture Trustee
By:
---------------------------------
Name:
Title:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By:
---------------------------------
Name:
Title:
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
EXHIBIT B
Form of Initial PSA Assignment
For value received, in accordance with the Pooling Agreement, dated as of
, 200 (the "Pooling Agreement"), between Navistar Financial Retail
------- -
Receivables Corporation, a Delaware corporation (the "Seller") and Navistar
Financial 200 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 Receivables Balance of $ and the Related Retail Note Assets with
------
respect to those Retail Notes; (b) the Series 200 Portfolio Interest, the
-
Series 200 Portfolio Certificate and the beneficial interest in the Series 200
- -
Portfolio Assets, including the Retail Leases identified on the Schedule of
Retail Leases attached hereto having an aggregate Starting Receivables 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.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this Initial PSA Assignment
to be duly executed as of , 200 .
----- -
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By:
--------------------------------------
Name:
Title:
EXHIBIT C
Form of Subsequent Transfer PSA Assignment
For value received, in accordance with the Pooling Agreement, dated as of
, 200 (the "Pooling Agreement"), between Navistar Financial Retail
---- -
Receivables Corporation, a Delaware corporation (the "Seller"), and Navistar
Financial 200 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
Receivables Balance of $ and the Related Retail Note Assets with respect
------
to those Retail Notes; (b) the beneficial interest in the Series 200 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 Receivables 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.
* * * * *
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:
-------------------------------------
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 , 200 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 repurchased 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) any reimbursement made pursuant to the last
sentence of Section 2.17 of the Servicing Agreement with respect to such
Receivable, (iii) all past due Scheduled Payments with respect to which a
Monthly Advance has not been made minus (iv) the Rebate and (b) that is a Retail
Lease, a release of all claims for reimbursement of Monthly Advances made on the
Administrative Receivable plus a payment equal to the sum of (i) the sum of the
Scheduled Payments on the Administrative Receivable due after the Accounting
Date, including the amount of any TRAC Payment or the Obligor's purchase option,
(ii) the amount equal to any reimbursements of Outstanding Monthly Advances made
to the Servicer from proceeds of other Receivables, and (iii) all past due
Scheduled Payments with respect to which a Monthly Advance has not been made
minus (iv) any Unearned Income.
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 a Monthly Period, the sum of (i) the
----------------
aggregate of the Receivable Balances of all Receivables newly designated during
such Monthly Period as Liquidating Receivables, plus (ii) the aggregate
principal portion of Scheduled Payments due but not received with respect to all
such Receivables prior to the date any such Receivable was designated a
Liquidating Receivable minus (iii) Liquidation Proceeds collected during such
Monthly Period with respect to all Liquidating Receivables.
Aggregate Class A Noteholders' Interest Distributable Amount: With respect
------------------------------------------------------------
to any Distribution Date, the sum of the Class A Noteholders' Interest
Distributable Amounts for all classes of Class A Notes and the Class A
Noteholders' Interest Carryover Shortfall as of the preceding Distribution Date.
Aggregate Note Principal Balance: With respect to the close of a
--------------------------------
Distribution Date, the sum of the Note Principal Balances for all classes of
Notes.
Aggregate Receivables Balance: As of any date, the sum of the Receivables
-----------------------------
Balances of all outstanding Receivables (other than Liquidating Receivables).
Aggregate Residual Value: The aggregate of the Residual Values for all
------------------------
Leased Vehicles subject to a Retail Lease.
Aggregate Starting Receivables Balance: As of any date of determination,
--------------------------------------
the sum of the Starting Receivables Balances of the Initial Receivables as of
the Initial Cutoff Date, which is $ , plus the aggregate Starting
--------------
Receivables 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, the annual
---------------------- ---
percentage rate specified in the Contract related to such Retail Note and, in
the case of Retail Leases, the implicit interest rate in the Contract related to
such Retail Lease calculated as an annual percentage rate on a constant yield to
maturity basis.
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: The Initial PSA Assignment or any Subsequent Transfer PSA
----------
Assignment.
2
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 $ over the Aggregate Starting Receivables Balance on
--------------
(and before giving effect to any transfers of Receivables on) such Subsequent
Transfer Date.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
---------------
Purchase Agreement, each PA Assignment, the Servicing Agreement, each
Assignment, the Administration Agreement, the Note Depository Agreement, the
Indenture (including any supplements thereto), the Pooling Agreement, the
Servicing Agreement, the Lease Purchase Agreement, 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.
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.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
----------------------
Del. Codess.3801 et seq., as the same may be amended from time to time.
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.
3
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 to be filed for the Trust
pursuant to Section 3810(a) of the Business 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 and a fraction, the
numerator of which is the actual number of days elapsed from the most recent
Distribution Date on which interest has been paid (or the Closing Date, in the
case of the initial period) to but excluding the current Distribution Date, and
the denominator of which is 360, and (b) with respect to the Class A-2 Notes,
the Class A-3 Notes and the Class A-4 Notes and any Distribution Date, the
product of (1) the outstanding principal balance of such class of Class A Notes
on the preceding Distribution Date after giving effect to all payments of
principal in respect of such class of Class A Notes on such preceding
Distribution Date (or, in the case of the first Distribution Date, the
outstanding principal balance on the Closing Date) and (2) the product of the
Interest Rate for such class of Class A Notes and a fraction, the numerator of
which is 30 (or, in the case of the first Distribution Date, the number of days
elapsed from the Closing Date to but excluding such Distribution Date), and the
denominator of which is 360.
Class A Notes: Collectively, the Class A-1 Notes, Class A-2 Notes, Class
-------------
A-3 Notes and Class A-4 Notes.
4
Class A-1 Notes: The Class A-1 % Asset Backed Notes in the aggregate
--------------- ----
principal amount of $ issued pursuant to the Indenture.
----------
Class A-2 Notes: The Class A-2 % Asset Backed Notes in the aggregate
--------------- ----
principal amount of $ issued pursuant to the Indenture.
-----------
Class A-3 Notes: The Class A-3 % Asset Backed Notes in the aggregate
--------------- ----
principal amount of $ issued pursuant to the Indenture.
-----------
Class A-4 Notes: The Class A-4 % Asset Backed Notes in the aggregate
--------------- ----
principal amount of $ issued pursuant to the Indenture.
----------
Class B Notes: The Class B % Asset Backed Notes in the aggregate
------------- ----
principal amount of $ issued pursuant to the Indenture.
----------
Class B Noteholders' Interest Carryover Shortfall: As of the close of any
-------------------------------------------------
Distribution Date, the excess of (i) the Class B Noteholders' Interest
Distributable Amount for such Distribution Date over (ii) the amount that was
actually deposited in the Note Distribution Account on the day preceding such
current Distribution Date in respect of interest on the Class B Notes.
Class B Noteholders' Interest Distributable Amount: With respect to any
--------------------------------------------------
Distribution Date, the sum of (i) the Class B Noteholders' Monthly Interest
Distributable Amount for such Distribution Date and (ii) the Class B
Noteholders' Interest Carryover Shortfall as of the preceding Distribution Date.
Class B Noteholders' Monthly Interest Distributable Amount: With respect to
----------------------------------------------------------
any Distribution Date, the product of (i) the outstanding principal balance of
the Class B Notes on the preceding Distribution Date after giving effect to all
payments of principal in respect of the Class B Notes on such preceding
Distribution Date (or, in the case of the first Distribution Date, the
outstanding principal balance on the Closing Date) and (ii) the product of the
Interest Rate for the Class B Notes and a fraction, the numerator of which is 30
(or, in the case of the first Distribution Date, the number of days elapsed from
the Closing Date to but excluding such Distribution Date) and the denominator of
which is 360.
Clearing Agency: An organization registered as a "clearing agency" pursuant
---------------
to Section 17A of the Exchange Act. 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 Date: , 200 .
---------- --
Closing: As defined in Section 2.03 of the Purchase Agreement.
-------
5
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 200 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, (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.
------------------
Collections: All amounts received from Obligors or otherwise in respect of
-----------
Receivables during the related Monthly Period, whether constituting principal,
interest, lease payments, TRAC Payments, 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 for 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.
6
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
the that Person shall be administered, which office at the Closing Date is
located at with respect to the Indenture
---------------------------------
Trustee, at with respect to the Owner Trustee, at with
------------- --------
respect to the Portfolio Trustee, and at 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, or (iv) a Person selling or leasing a truck, bus or trailer that
secures a Retail Note or a Retail Lease acquired by NFC or one of its
affiliates.
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 Receivable and any successor Dealer for
recourse or reimbursement of any losses, costs or expenses arising as a result
of a default by the Obligor on such Receivable.
Default: Any occurrence that is, or with notice or the lapse of time or
-------
both would become, an Event of Default.
Definitive Certificates: The Certificates specified in Section 3.13 of the
-----------------------
Trust Agreement.
Definitive Notes: The Notes specified in Section 2.12 of the Indenture.
----------------
Delaware Trustee: As defined in the Series 200 Portfolio Supplement.
---------------- -
Delinquency Percentage: With respect to a Distribution Date, the aggregate
----------------------
Gross Balances of all outstanding Receivables which are 61 days or more past due
as of the last day of the related Monthly Period, as determined in accordance
with the Servicer's normal practices, expressed as a percentage of the aggregate
Gross Balances of all outstanding Receivables on the last day of such Monthly
Period.
Designated Account Property: The Designated Accounts, all amounts and
---------------------------
investments held from time to time in any Designated Account (whether in the
form of deposit accounts, Physical
7
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 15 , 200 .
------- --
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.
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
Moody's or (2) a short-term unsecured debt or certificate of deposit rating of
at least "A-1" from S&P and "P-1" from Moody's, (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
8
any state thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or State banking or depository
institution authorities; provided, however, that at the time of the
-------- -------
investment or contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies in the highest investment
category for short-term unsecured debt obligations or certificates of
deposit granted thereby;
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category for short-term unsecured debt
obligations or certificates of deposit granted thereby;
(iv) investments in money market or common trust funds having a rating
from each of the Rating Agencies in the highest investment category for
short-term unsecured debt obligations or certificates of deposit granted
thereby (including funds for which the Indenture Trustee or the Owner
Trustee or any of their respective affiliates is investment manager or
advisor, so long as such fund shall have such rating);
(v) bankers' acceptances issued by any depository institution or trust
company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with (A) a depository institution or trust company
(acting as principal) described in clause (ii) or (B) a depository
institution or trust company the deposits of which are insured by FDIC or
the counterparty for which has a rating from each of the Rating Agencies in
the highest investment category for short-term unsecured debt obligations,
the collateral for which is held by a custodial bank for the benefit of the
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.
9
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 date set forth below opposite such Securities:
Class A-1 Notes: , 200
---------- --
Class A-2 Notes: , 200
---------- --
Class A-3 Notes: , 200
---------- --
Class A-4 Notes: , 200
---------- --
Class B Notes: , 200
---------- --
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 .
Financed Vehicle: A new or used truck, truck chassis bus or trailer,
----------------
together with any accessions thereto which were financed with the proceeds of
the related Receivable, securing an Obligor's indebtedness under a Receivable. 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.
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, equals the Outstanding
Capitalized Cost on the Financed Vehicle related thereto.
10
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 200 Distribution Date.
---------- --
Further Transfer and Servicing Agreements: The Pooling Agreement, including
-----------------------------------------
each 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.
------------------------
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.
11
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 date hereof, as the same may from time to time be amended,
modified or otherwise supplemented.
Indenture Trustee: , a , 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.
12
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: , 200 .
---------- --
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, 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, % per annum, with
------------- ---
respect to the Class A-2 Notes, % per annum, with respect to the Class A-3
---
Notes, % per annum, with respect to the Class A-4 Notes, % per annum and
--- ---
with respect to the Class B Notes, % 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 Securityholder with
respect to the Purchased Property.
13
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.
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 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
14
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.
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) %, 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, a Record Date and a
--------------
Distribution Date, the calendar month preceding the month in which such date
occurs. With respect to an Accounting Date, the calendar month in which such
Accounting Date occurs.
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: As defined in Section 8.12(a) of
--------------------------------------
the Indenture.
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
15
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.
------------
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.
16
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 A-1 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 , 200 , 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 , 200 (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 , 200 , 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 % United States
-----
Treasury Note due , 200 (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
, 200 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 % United States Treasury Note
-----
due , 200 (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
, 200 , 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 % United States Treasury Note
-----
due , 200 (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
17
period commencing on and including the Distribution Date on which such Class B
Note Prepayment Amount is required to be paid to but excluding , 200 ,
--------- --
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 % United States Treasury Note due , 200
----- -------- --
(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.
Officers' 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.
18
Optional Purchase Proceeds: The amount specified in the second or third
--------------------------
sentence, as applicable, of Section 4.01 of the Pooling Agreement.
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 Voting 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 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
19
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.
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 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: , 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 .
----------------------
Permitted Financing: As defined in the Titling Trust Agreement.
-------------------
20
Permitted Liens:
---------------
(A) with respect to any Collateral, the interests of the parties under the
Basic Documents; and
(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 , 200 ,
----------------- -------- --
among NFRRC and the Issuer, as amended, modified and supplemented from time to
time.
Portfolio Assets: As defined in the Titling Trust Agreement.
----------------
21
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.
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) of the Servicing Agreement.
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), (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 Total
22
Available Amount over the sum of the Total Servicing Fee and accrued and unpaid
interest on the Notes due and payable on such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
----------
administrative proceeding.
Program: As defined in Section 3.02 of the Servicing Agreement.
------- ------------
Purchase Agreement: The Purchase Agreement, dated as of , 200 ,
-------- --
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: 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, proceeds from any Insurance
Policies,
23
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;
(e) the benefit of any lease assignments with respect to the Financed
Vehicles; and
24
(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 Repurchase 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 Available Funds: As defined in Section 6.7 of the Indenture.
------------------------- -----------
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 for any Receivable not classified by the Servicer as a "finance
----
charge - included contract," the portion of the payments
25
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.
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 at least $ , which shall be deposited into the Reserve Account
----------
on the Closing Date pursuant to Section 2.02(a) of the Pooling Agreement.
Reserve Account Subsequent Transfer Deposit: With respect to any
-------------------------------------------
Subsequent Transfer Date, cash or Eligible Investments having a value of at
least equal to % of the aggregate Starting Receivable Balance of the
----
Subsequent Receivables transferred to the Issuer on such Subsequent Transfer
Date, which shall be deposited into the Reserve Account on such Subsequent
Transfer Date, pursuant to Section 8.10(a) of the Indenture.
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.
26
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 an
-------------------------
Assignment specifying the Retail Leases then being transferred to the Issuer.
Schedule of Retail Notes: Each schedule attached to a PA Assignment or an
------------------------
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, (ii) is
payable by the Obligor of such Receivable, and (iii) in the case of a Retail
Note, includes finance charges which accrue at the APR. 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.
------------------
Securities: The Notes and the Certificates.
----------
Securities Act: The United States Securities Act of 1933, as amended from
--------------
time to time.
27
Securities Intermediary: As defined in Section 2.02 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 date hereof
-------------------
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 200 Portfolio Assets: As of any date, all of the Retail Leases
----------------------------
identified on any Schedule of Retail Leases attached to a PA Assignment dated as
of the Closing Date or a Lease Purchase Date 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 200 Portfolio Certificate: The Portfolio Interest Certificate
---------------------------------
representing the Series 200 Portfolio Interest.
-
Series 200 Portfolio Interest: The portfolio interest created pursuant to
------------------------------
the Series 200 Portfolio Supplement.
-
Series 200 Portfolio Interest Certificate: The Portfolio Interest
------------------------------------------
Certificate representing the Series 200 Portfolio Interest.
-
Series 200 Portfolio Interest Collateral: As defined in Section 11.2 of
----------------------------------------- ------------
the Collateral Supplement.
28
Series 200 Portfolio Trustee: As defined in the Series 200 Portfolio
----------------------------- -
Supplement.
Series 200 Portfolio Obligor: As defined in the Recitals of the Collateral
-----------------------------
Supplement.
Series 200 Portfolio Supplement: The Series 200 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 200
-
Portfolio Trustee and the Delaware Trustee.
Series 200 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:
(a) % 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 Starting Receivables Balance of all Subsequent Receivables
acquired by the Issuer after such date and 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 Monthly Periods which are the fifth, fourth and third Monthly
Periods preceding the Monthly Period in which such Distribution Date
occurs, minus the sum of the Liquidation Proceeds for the Monthly Periods
which are the first, second and third Monthly Periods preceding the Monthly
Period in which such Distribution Date occurs, and the denominator of which
is the sum of the Remaining Gross Balances of all outstanding Receivables
as of the last day of each of the sixth, fifth and fourth Monthly Periods
preceding the Monthly Period in which such Distribution Date occurs,
exceeds % or (ii) the average of the Delinquency Percentages for the
---
preceding three months exceeds %, then the percentage of the Aggregate
---
Receivables Balance and of the aggregate Starting Receivables Balance of
Subsequent Receivables referred to in clause (a) above, shall be equal to
%
----
; and
(b) % of the Aggregate Starting Receivables Balance.
---
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.
29
Starting Receivables 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 Income and (ii)
payments received from the Obligor prior to the Cutoff Date with respect to such
Receivable allocable 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.
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 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
30
Noteholders, (b) in the case of Section 2.14 of the Indenture, the Notes of the
------------
new Series will be characterized as debt.
Telerate Page 3750: The display page so designated on the Bridge
------------------
Information Systems Telerate Service (or such other pages as may replace that
page on that service or such other service or services as may be nominated by
the British Banker's Association for the purpose of displaying London interbank
offered rates for Dollar deposits).
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 200 Portfolio Certificate, Titling
----------------------- -
Trust Agreement, the Titling Trust Servicing Agreement, the Collateral Agency
Agreement, the Series 200 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
31
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.
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 200 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 200 Owner Trust, a Delaware business trust,
---- --
created pursuant to the Trust Agreement.
Trust Agreement: The Trust Agreement, dated as of , 200 , between
--------------- ---------- -
the Seller and the Issuer, as amended and supplemented from time to time; such
agreement being the Amended and Restated Trust Agreement contemplated by the
Trust Agreement dated , 200 between the Seller and the Issuer.
--------- -
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 , 200 , among
---------------------- ---- -
, as representative of the several underwriters party thereto,
----------------
the Servicer and the Seller with respect to the sale of the Notes.
32
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.
Unregistered Note: Any Note that has not been registered under the
-----------------
Securities Act and is subject to the provisions of Section 2.15 of the
------------
Indenture.
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, (iii) any
reimbursement made pursuant to the last sentence of Section 2.17 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 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 2.17 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
-----
the sum of (v) any Unearned Income and (vi) any Liquidation Proceeds to the
extent applied to reduce the Receivable Balance of the Warranty Receivable on or
prior to that Accounting Date.
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.
33
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 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 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.
A-1
(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.
A-2
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:
(A) 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
(B) 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
(C) in the case of the Indenture Trustee, at its Corporate Trust
Office,
(D) 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
B-1
with a copy to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(E) 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
(F) 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
(G) 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.
(H) in the case of the Owner Trustee, at its Corporate Trust Office.
(I) 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
B-2
(J) 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.
B-3
