EXECUTION COPY RECEIVABLES PURCHASE AGREEMENT DATED AS OF April 8, 2004 Among TRUCK RETAIL ACCOUNTS CORPORATION, AS SELLER, NAVISTAR FINANCIAL CORPORATION, AS SERVICER, JUPITER SECURITIZATION CORPORATION, AS CONDUIT and BANK ONE, NA (MAIN OFFICE...
EXECUTION
COPY
DATED
AS OF April 8, 2004
Among
TRUCK
RETAIL
ACCOUNTS CORPORATION, AS SELLER,
NAVISTAR
FINANCIAL CORPORATION, AS SERVICER,
JUPITER
SECURITIZATION CORPORATION, AS CONDUIT
and
BANK
ONE, NA (MAIN OFFICE CHICAGO),
AS
AGENT
E-55
THIS
RECEIVABLES PURCHASE AGREEMENT
dated as of April 8, 2004 is among Truck Retail Accounts
Corporation, a Delaware corporation ("Seller"), Navistar
Financial Corporation, a Delaware corporation ("Navistar"), as initial
Servicer (Navistar, together with Seller, the "Seller Parties" and each a
"Seller
Party"), the
entities listed on Schedule A to this Agreement (together with any of their
respective successors and assigns hereunder, the "Financial
Institutions"),
Jupiter Securitization Corporation ("Conduit')
and
Bank
One, NA (Main Office Chicago), as agent for the Purchasers hereunder or any
successor agent hereunder (together with its successors and assigns hereunder,
the "Agent"). Unless
defined elsewhere herein, capitalized terms used in this Agreement shall
have
the meanings assigned to such terms in Exhibit I.
PRELIMINARY
STATEMENTS
Seller
desires to transfer and assign Purchaser Interests to the
Purchasers from time to time.
Conduit
may, in its absolute and sole discretion, purchase Purchaser
Interests from Seller from time to time.
In
the event that Conduit declines to make any purchase, the
Financial Institutions shall, at the request of Seller, purchase Purchaser
Interests from time to time. In addition, the Financial Institutions have
agreed
to provide a liquidity facility to Conduit in accordance with the terms
hereof.
Bank
One, NA (Main Office Chicago) has been requested and is willing
to act as Agent on behalf of Conduit and the Financial Institutions in
accordance with the terms hereof.
NOW,
THEREFORE,
in
consideration of the premises and the mutual agreements herein contained
and for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I.
PURCHASE
ARRANGEMENTS
Section
1.1 Purchase
Facility.
(a) Upon
the terms and subject to the conditions hereof, Seller may, at its option,
sell
and assign Purchaser Interests to the Agent for the benefit of one or more
of
the Purchasers. In accordance with the terms and conditions set forth herein,
Conduit may, at its option, instruct the Agent to purchase on behalf of Conduit,
or if Conduit shall decline to purchase, the Agent shall purchase, on behalf
of
the Financial Institutions, Purchaser Interests from time to time during
the
period from the date hereof to but not including the Facility Termination
Date
in an aggregate amount not to exceed at such time the lesser of (i) the Purchase
Limit and (ii) the aggregate amount of the Commitments then
outstanding.
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(b) Seller
may, upon at least 10 Business Days' notice to the Agent, terminate in whole
or
reduce in part, ratably among the Financial Institutions, the unused portion
of
the Purchase Limit; provided that each partial reduction of the Purchase
Limit
shall be in an amount equal to $5,000,000 or an integral multiple thereof.
Section
1.2 Increases. Seller
shall provide the Agent with at least two (2) Business Days' prior notice
in a
form set forth as Exhibit II hereto of each Incremental Purchase (a "Purchase
Notice").
Each Purchase Notice shall be subject to Section 6.2 hereof
and,
except as set forth below, shall be irrevocable and shall specify the requested
Purchase Price (which shall not be less than $1,000,000) and date of purchase
and, in the case of an Incremental Purchase to be funded by the Financial
Institutions, the requested Discount Rate and Tranche Period. Following receipt
of a Purchase Notice, the Agent will determine whether Conduit agrees to
make
the purchase. If Conduit declines to make a proposed purchase, Seller may
cancel
the Purchase Notice or, in the absence of such a cancellation, the Incremental
Purchase of the Purchaser Interest will be made by the Financial Institutions.
On the date of each Incremental Purchase, upon satisfaction of the applicable
conditions precedent set forth in Article VI, Conduit or the Financial
Institutions, as applicable, shall deposit to the Facility Account, in
immediately available funds, no later than 12:00 noon (Chicago time), an
amount
equal to (i) in the case of Conduit, the aggregate Purchase Price of the
Purchaser Interests Conduit is then purchasing or (ii) in the case of a
Financial Institution, such Financial Institution's Pro Rata Share of the
aggregate Purchase Price of the Purchaser Interests the Financial Institutions
are purchasing. Only five (5) Purchase Notices may be presented in any calendar
month; provided,
however,
at
any time
daily settlement is occurring, a Purchase Notice for each Business Day may
be
presented.
Section
1.3 Decreases. Seller
shall provide the Agent with prior written notice in conformity with the
Required Notice Period in the form set forth as Exhibit XII hereto (a "Reduction
Notice") of
any proposed reduction of Aggregate Capital from Collections or the Facility
Account. Such Reduction Notice shall designate (i) the date (the "Proposed
Reduction Date")
upon which any such reduction of Aggregate Capital shall occur
(which date shall give effect to the applicable Required Notice Period),
and
(ii) the amount of Aggregate Capital to be reduced which shall be applied
ratably to the Purchaser Interests of Conduit and the Financial Institutions
in
accordance with the amount of Capital (if any) owing to Conduit, on the one
hand, and the amount of Capital (if any) owing to the Financial Institutions
(ratably, based on their respective Pro Rata Shares), on the other hand (the
"Aggregate
Reduction ").
Only one (1) Reduction Notice shall be outstanding at any
time.
Section
1.4
Payment
Requirements. All amounts to be paid or deposited by any Seller Party
pursuant to any provision of this Agreement shall be paid or deposited by
such
Seller Party or its agent in accordance with the terms hereof no later than
11:00 a.m. (Chicago time) on the day when due in immediately available funds,
and if not received before 11:00 a.m. (Chicago time) shall be deemed to be
received on the next succeeding Business Day. If such amounts are payable
to a
Purchaser they shall be paid to the Agent, for the account of such Purchaser,
at
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ until otherwise notified by the
Agent.
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All
computations of Yield, per annum fees calculated as part of any
CP Costs, per annum fees hereunder and per annum fees under the Fee Letter
shall
be made on the basis of a year of 360 days for the actual number of days
elapsed; provided, however, that any interest computed using the Prime Rate
shall be calculated on the basis of a 365 or 366 day year, as applicable,
and
the actual number of days elapsed. If any amount hereunder shall be payable
on a
day which is not a Business Day, such amount shall be payable on the next
succeeding Business Day.
ARTICLE
II.
PAYMENTS
AND
COLLECTIONS
Section
2.1 Payments.
Notwithstanding any limitation on recourse contained in this Agreement, Seller
shall immediately pay to the Agent when due on a full recourse basis, (i)
such
fees as set forth in the Fee Letter (the fees of Financial Institutions shall
not exceed and shall be paid by Agent from the fees set forth in the Fee
Letter
except as otherwise specified hereunder), (ii) all CP Costs, (iii) all amounts
payable as Yield, (iv) all amounts payable as Deemed Collections (which shall
be
immediately due and payable by Seller and applied to reduce outstanding
Aggregate Capital hereunder in accordance with Sections 2.2 and 2.3 hereof),
(v)
all amounts required pursuant to Section 2.6, (vi) all amounts payable pursuant
to Article X, if any, (vii) all Servicer costs and expenses, including the
Servicing Fee, in connection with servicing, administering and collecting
the
Receivables (which shall be distributed by Agent in accordance with Section
2.4), (viii) all Broken Funding Costs and (ix) all Default Fees (collectively,
the "Obligations").
If
Seller fails to pay any of the Obligations when due, Seller agrees to pay,
on
demand, the Default Fee in respect thereof until paid, such Default Fee shall
not be applicable with respect to the failure to pay CP Costs and Yield unless
and until the Agent shall have provided any notice with respect to CP Costs
and
Yield as required herein. Notwithstanding the foregoing, no provision of
this
Agreement or the Fee Letter shall require the payment or permit the collection
of any amounts hereunder in excess of the maximum permitted by applicable
law.
If at any ▇▇▇▇ ▇▇▇▇▇▇ receives any Collections or is deemed to receive any
Collections, Seller shall immediately pay such Collections or Deemed Collections
to the Servicer for application in accordance with the terms and conditions
hereof and, at all times prior to such payment, such Collections or Deemed
Collections shall be held in trust by Seller for the exclusive benefit of
the
Purchasers and the Agent and, with respect to the Servicer costs, the Servicer.
Upon payment of Deemed Collections in cash with respect to any Receivable
for
which such Deemed Collections paid in cash equals the Outstanding Balance
of
such Receivable, such Receivable shall be deemed to be transferred to the
Seller
and shall become the property of the Seller for all purposes. With respect
to
any Receivable for which such Deemed Collections paid in cash are less than
the
Outstanding Balance of such Receivable, the Seller shall be entitled to any
Collections received with respect to such Receivable in excess of the
Outstanding Balance of such Receivable not offset by a Deemed Collection.
Section
2.2
Collections Prior
to
Amortization. Prior to the Amortization Date, any Collections and/or
Deemed Collections received by the Servicer shall be set aside and held in
trust
by the Servicer for the payment of any accrued and unpaid Aggregate Unpaids
or
for a Reinvestment as provided in this Section 2.2. If at any time any
Collections are received by the Servicer prior to the Amortization Date,
(i) the
Servicer shall set aside the Termination
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Percentage
(hereinafter defined) of Collections evidenced by the
Purchaser Interests of each Terminating Financial Institution and (ii) Seller
hereby requests and the Purchasers (other than any Terminating Financial
Institutions) hereby agree to make, simultaneously with such receipt, a
reinvestment (each a "Reinvestment")
with
that portion of the balance of collections received by the Servicer that
is part
of any Purchaser Interest (other than any Purchaser Interests of Terminating
Financial Institutions), such that after giving effect to such Reinvestment,
the
amount of Capital of such Purchaser Interest immediately after such receipt
and
corresponding Reinvestment shall be equal to the amount of Capital immediately
prior to such receipt and such amounts shall be remitted from the Servicer
to
Seller on such date. On each Weekly Settlement Date prior to the occurrence
of
the Amortization Date, the Servicer shall remit to the Agent's account the
amounts set aside during the preceding week that have not been subject to
a
Reinvestment and apply such amounts (if not previously paid in accordance
with
Section 2.1), to reduce the Capital of all Purchaser Interests of Terminating
Financial Institutions, applied ratably to each Terminating Financial
Institution according to its respective Termination Percentage. If such Capital
shall be reduced to zero, any additional Collections received by the Servicer
(i) if applicable, shall be remitted to the Agent's account no later than
12:00
noon (Chicago time) to the extent required to fund any Aggregate Unpaids
on such
Weekly Settlement Date and (ii) any balance remaining thereafter shall be
remitted from the Servicer to Seller on such Weekly Settlement Date. On each
Monthly Settlement Date prior to the occurrence of the Amortization Date,
the
Servicer shall remit to the Agent's account the amounts set aside during
the
preceding Settlement Period that have not been subject to a Reinvestment
and
apply such amounts (if not previously paid in accordance with Section 2.1)
first, to reduce unpaid CP Costs, Yield and other Obligations and second,
to
reduce the Capital of all Purchaser Interests of Terminating Financial
Institutions, applied ratably to each Terminating Financial Institution
according to its respective Termination Percentage. If such Capital, CP Costs,
Yield and other Obligations shall be reduced to zero, any additional Collections
received by the Servicer (i) if applicable, shall be remitted to the Purchasers'
account no later than 11:00 a.m. (Chicago time) to the extent required to
fund
any Aggregate Unpaids on such Monthly Settlement Date and (ii) any balance
remaining thereafter shall be remitted from the Servicer to Seller on such
Monthly Settlement Date. Each Terminating Financial Institution shall be
allocated a ratable portion of Collections from the date of any assignment
by
Conduit pursuant to Section 13.6 (the "Termination
Date')
until such Terminating Financing Institution's Capital shall
be
paid in full. This ratable portion shall be calculated on the Termination
Date
of each Terminating Financial Institution as a percentage equal to (i) Capital
of such Terminating Financial Institution outstanding on its Termination
Date,
divided by (ii) the Aggregate Capital outstanding on such Termination Date
(the
"Termination
Percentage").
Each Terminating Financial Institution's Termination Percentage
shall remain constant prior to the Amortization Date. On and after the
Amortization Date, each Termination Percentage shall be disregarded, and
each
Terminating Financial Institution's Capital shall be reduced ratably with
all
Financial Institutions in accordance with Section 2.3.
Section
2.3 Collections Following
Amortization. On the Amortization Date and on each day thereafter, the
Servicer shall set aside and hold in trust, for the holder of each Purchaser
Interest, all Collections received on such day and any additional amount
received from Seller for the payment of any accrued and unpaid Obligations
owed
by Seller and not previously paid by Seller in accordance with Section 2.1.
On
and after the Amortization Date, the Servicer shall, at any time upon the
request from time to time by (or pursuant to standing instructions from)
the
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Agent
(i) remit to the Agent's account the amounts set aside pursuant
to the preceding sentence, and (ii) apply such amounts to reduce the Capital
associated with each such Purchaser Interest and any other Aggregate
Unpaids.
Section
2.4 Application of
Collections. If there shall be insufficient funds on deposit for the
Servicer to distribute funds in payment in full of the aforementioned amounts
pursuant to Section 2.2 or 2.3 (as applicable), the Servicer shall distribute
funds:
first,to
the payment of
the Servicer's reasonable out-of-pocket costs and expenses in connection
with
servicing, administering and collecting the Receivables, including the Servicing
Fee, if Seller or one of its Affiliates is not then acting as the
Servicer,
second,to
the
reimbursement of the Agent's costs of collection and enforcement of this
Agreement,
third,
ratably
to the
payment of all accrued and unpaid fees under the Fee Letter, CP Costs and
Yield,
fourth,
(to
the extent
applicable) to the ratable reduction of the Aggregate Capital (without regard
to
any Termination Percentage),
fifth,for
the ratable
payment of all other unpaid Obligations, provided that to the extent such
Obligations relate to the payment of Servicer costs and expenses, including
the
Servicing Fee, when Seller or one of its Affiliates is acting as the Servicer,
such costs and expenses will not be paid until after the payment in full
of all
other Obligations, and
sixth,after
the
Aggregate Unpaids have been indefeasibly reduced to zero, to Seller.
Collections
applied to the payment of Aggregate Unpaids shall be
distributed in accordance with the aforementioned provisions, and, giving
effect
to each of the priorities set forth above in this Section 2.4, shall be shared
ratably (within each priority) among the Agent and the Purchasers in accordance
with the amount of such Aggregate Unpaids owing to each of them in respect
of
each such priority.
Section
2.5 Payment Rescission.
No payment of any of the Aggregate Unpaids shall be considered paid or applied
hereunder to the extent that, at any time, all or any portion of such payment
or
application is rescinded by application of law or judicial authority, or
must
otherwise be returned or refunded for any reason. Seller shall remain obligated
for the amount of any payment or application so rescinded, returned or refunded,
and shall promptly pay to the Agent (for application to the Person or Persons
who suffered such rescission, return or refund) the full amount thereof,
plus
the Default Fee from the date of any such rescission, return or refunding.
Section
2.6 Maximum Purchaser
Interests. Seller shall ensure that the Purchaser Interests of the
Purchasers shall at no time exceed in the aggregate 100%. If the aggregate
of
the Purchaser Interests of the Purchasers exceeds 100%, Seller shall pay
to the
Agent within two (2) Business Days an amount to be applied to reduce the
Aggregate Capital (as allocated by the Agent), such that after giving effect
to
such payment the aggregate of the Purchaser Interests equals or is less than
100%.
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Section
2.7 Clean Up Call. In
addition to Seller's rights pursuant to Section 1.3, Seller shall have the
right
(after providing written notice to the Agent in accordance with the Required
Notice Period), at any time following the reduction of the Aggregate Capital
to
a level that is less than 10.0% of the original Purchase Limit, to repurchase
from the Purchasers all, but not less than all, of the then outstanding
Purchaser Interests. The purchase price in respect thereof shall be an amount
equal to the Aggregate Unpaids through the date of such repurchase, payable
in
immediately available funds. Such repurchase shall be without representation,
warranty or recourse of any kind by, on the part of, or against any Purchaser
or
the Agent.
ARTICLE
III.
CONDUIT
FUNDING
Section
3.1 CP Costs. Seller
shall pay CP Costs with respect to the Capital associated with each Purchaser
Interest of Conduit for each day that any Capital in respect of such Purchaser
Interest is outstanding. Each Purchaser Interest funded substantially with
Pooled Commercial Paper will accrue CP Costs each day on a pro rata basis,
based
upon the percentage share the Capital in respect of such Purchaser Interest
represents in relation to all assets held by Conduit and funded substantially
with related Pooled Commercial Paper.
Section
3.2
CP Costs
Payments. On each Monthly Settlement Date, Seller shall pay to the Agent
(for the benefit of Conduit) an aggregate amount equal to all accrued and
unpaid
CP Costs in respect of the Capital associated with all Purchaser Interests
of
Conduit for the immediately preceding Accrual Period in accordance with Article
II.
Section
3.3 Calculation of
CP
Costs. On the second Business Day after each Accrual Period, Conduit
shall calculate the aggregate amount of CP Costs allocated to the Capital
of the
Purchaser Interests for the applicable Accrual Period and shall notify Seller
of
such aggregate amount.
ARTICLE
IV.
FINANCIAL
INSTITUTION FUNDING
Section
4.1 Financial Institution
Funding. Each Purchaser Interest of the Financial Institutions shall
accrue Yield for each day during its Tranche Period at either the LIBO Rate
or
the Prime Rate in accordance with the terms and conditions hereof. Until
Seller
gives notice to the Agent of another Discount Rate in accordance with Section
4.4, the initial Discount Rate for any Purchaser Interest transferred to
the
Financial Institutions by Conduit pursuant to the terms and conditions hereof
shall be the Prime Rate. If the Financial Institutions acquire by assignment
from Conduit any Purchaser Interest pursuant to Article XIII, each Purchaser
Interest so assigned shall be deemed to have a new Tranche Period commencing
on
the date of any such assignment.
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Section
4.2
Yield Payments.
On the Monthly Settlement Date for each Purchaser Interest of the Financial
Institutions, Seller shall pay to the Agent (for the benefit of the Financial
Institutions) an aggregate amount equal to the accrued and unpaid Yield for
the
entire Tranche Period of each such Purchaser Interest in accordance with
Article
II.
Section
4.3
Selection and
Continuation of Tranche Periods.
(a) With
consultation from (and approval by) the
Agent, Seller shall from time to time request Tranche Periods for the Purchaser
Interests of the Financial Institutions, provided that, if at any time the
Financial Institutions shall have a Purchaser Interest, Seller shall always
request Tranche Periods such that at least one Tranche Period shall end on
the
date specified in clause (A) of the definition of Monthly Settlement Date.
(b) Seller
or the Agent, upon notice to and
consent by the other received at least three (3) Business Days prior to the
end
of a Tranche Period (the "Terminating
Tranche")
for any Purchaser Interest, may, effective on the last day
of the
Terminating Tranche: (i) divide any such Purchaser Interest into multiple
Purchaser Interests, (ii) combine any such Purchaser Interest with one or
more
other Purchaser Interests that have a Terminating Tranche ending on the same
day
as such Terminating Tranche or (iii) combine any such Purchaser Interest
with a
new Purchaser Interest to be purchased on the day such Terminating Tranche
ends,
provided, that in no event may a Purchaser Interest of Conduit be combined
with
a Purchaser Interest of the Financial Institutions.
Section
4.4 Financial Institution
Discount Rates. Seller may select the LIBO Rate or the Prime Rate for
each Purchaser Interest of the Financial Institutions. Seller shall by 11:00
a.m. (Chicago time): (i) at least three (3) Business Days prior to the
expiration of any Terminating Tranche with respect to which the LIBO Rate
is
being requested as a new Discount Rate and (ii) at least one (1) Business
Day
prior to the expiration of any Terminating Tranche with respect to which
the
Prime Rate is being requested as a new Discount Rate, give the Agent irrevocable
notice of the new Discount Rate for the Purchaser Interest associated with
such
Terminating Tranche. Until Seller gives notice to the Agent of another Discount
Rate, the initial Discount Rate for any Purchaser Interest transferred to
the
Financial Institutions pursuant to the terms and conditions hereof shall
be the
Prime Rate.
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Section
4.5 Suspension of
the LIBO
Rate. If any Financial Institution notifies the Agent that (i) funding
its Pro Rata Share of the Purchaser Interests of the Financial Institutions
at a
LIBO Rate would violate any applicable law, rule, regulation, or directive
of
any governmental or regulatory authority, whether or not having the force
of
law, (ii) deposits of a type and maturity appropriate to match fund its
Purchaser Interests at such LIBO Rate are not available or (iii) such LIBO
Rate
does not accurately reflect the cost of acquiring or maintaining a Purchaser
Interest at such LIBO Rate for such Financial Institution, then the Agent
shall
suspend the availability of such LIBO Rate for such Financial Institution
and
require Seller to select the Prime Rate for any Purchaser Interest accruing
Yield at such LIBO Rate for such Financial Institution.
ARTICLE
V.
REPRESENTATIONS
AND WARRANTIES
Section
5.1 Representations
and
Warranties of The Seller Parties. Each Seller Party hereby represents and
warrants to the Agent and the Purchasers, as to itself, as of the date hereof
and as of the date of each Incremental Purchase and the date of each
Reinvestment that:
(a) Corporate
Existence and
Power. Such Seller Party is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation.
Such
Seller Party is duly qualified to do business and is in good standing as
a
foreign corporation, and has and holds all corporate power and all governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted except where
the failure to so qualify or so hold would not reasonably be expected to
have a
Material Adverse Effect.
(b) Power
and Authority; Due
Authorization, Execution and Delivery. The execution and delivery by such
Seller Party of this Agreement and each other Transaction Document to which
it
is a party, and the performance of its obligations hereunder and thereunder
and,
in the case of Seller, Seller's use of the proceeds of purchases made hereunder,
are within its corporate powers and authority and have been duly authorized
by
all necessary corporate action on its part. This Agreement and each other
Transaction Document to which such Seller Party is a party has been duly
executed and delivered by such Seller Party.
(c) No
Conflict. The
Transactions do not contravene or violate (i) such Seller Party's certificate
or
articles of incorporation or by-laws, (ii) any law, rule or regulation
applicable to such Seller Party, (iii) any restrictions under any agreement,
contract or instrument to which such Seller Party is a party or by which
it or
any of such Seller Party's property is bound, or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting such Seller Party or
such
Seller Party's property, and do not result in the creation or imposition
of any
Adverse Claim on assets of such Seller Party or its Subsidiaries (except
as
created hereunder and, with respect to clauses (ii), (iii) and (iv), except
as
would not reasonably be expected to result in a Material Adverse Effect);
and no
transaction contemplated hereby requires any action to be taken to comply
with
any bulk sales act or similar law.
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(d) Governmental
Authorization. The Transactions do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except (A) such as have been obtained or made and are in full
force
and effect, (B) routine renewals of existing licenses and permits of each
Seller
Party in the ordinary course of business, (C) such filings as may be required
under federal and state securities laws for purposes of disclosure and (D)
such
as will not have a Material Adverse Effect.
(e) Actions,
Suits. There
are no actions, suits or proceedings pending, or to such Seller Party's
knowledge, threatened, against or affecting such Seller Party, or any of
its
properties, in or before any court, arbitrator or other body, that would
reasonably be expected to have a Material Adverse Effect. Such Seller Party
is
not in default with respect to any order of any court, arbitrator or
governmental body the result of which default would reasonably be expected
to
have a Material Adverse Effect.
(f) Binding
Effect. This
Agreement and each other Transaction Document to which such Seller Party
is a
party constitute the legal, valid and binding obligations of such Seller
Party
enforceable against such Seller Party in accordance with their respective
terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(g) Accuracy
of
Information. All information heretofore furnished by such Seller Party or
any of its Affiliates to the Agent or the Purchasers for purposes of or in
connection with this Agreement, any of the other Transaction Documents or
any
transaction contemplated hereby or thereby is, and all such information
hereafter furnished by such Seller Party or any of its Affiliates to the
Agent
or the Purchasers will be, true and accurate in all material respects on
the
date such information is stated or certified and does not and will not contain
a
material misstatement of fact or omit to state a material fact necessary
to make
the statements contained therein not misleading.
(h) Use
of Proceeds. No
proceeds of any purchase hereunder will be used (i) for a purpose that violates,
or would be inconsistent with any law, rule or regulation applicable to Seller,
or (ii) to acquire any security in any transaction which is subject to Sections
13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good
Title.
Immediately prior to each purchase hereunder, Seller shall be the legal and
beneficial owner of the Receivables and Related Security with respect thereto,
free and clear of any Adverse Claim, except as created by the Transaction
Documents. There have been duly filed all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law)
of all
appropriate jurisdictions to perfect Seller's ownership interest in each
Receivable, its Collections and the Related Security to the extent such
interests can be perfected by filing financing statements under Article 9
of the
UCC.
(j) Perfection.
This
Agreement, together with the filing of the financing statements contemplated
hereby, is effective to, and shall, upon each purchase hereunder, transfer
to
the Agent for the benefit of the relevant Purchaser or Purchasers (and the
Agent
for the benefit of such Purchaser or Purchasers shall acquire from Seller)
a
valid and perfected first
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priority
undivided percentage ownership or security interest in each
Receivable existing or hereafter arising and in the Related Security and
Collections with respect thereto to the extent such interest can be perfected
by
filing financing statements under Article 9 of the UCC, free and clear of
any
Adverse Claim, except as created by the Transactions Documents. There have
been
duly filed all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (on behalf of the Purchasers) ownership or security
interest in the Receivables, the Related Security and the Collections to
the
extent such interest can be perfected by filing financing statements under
Article 9 of the UCC.
(k) Places
of Business and
Locations of Records. The state of organization, principal places of
business and chief executive office of such Seller Party and the offices
where
it keeps all of its Records (other than those in transit to such locations)
are
located at the addresses listed on Exhibit III or such other locations of
which
the Agent has been notified in accordance with Section 7.2(a) in jurisdictions
where all action required by Section 14.4(a) has been taken and completed.
Seller's Federal Employer Identification Number and Organizational
Identification Number are correctly set forth on Exhibit III.
(1) Collections.
Such
Seller Party has complied in all material respects with the conditions and
requirements set forth in Section 7.1(j) and Section 8.2 applicable to it.
The
names and addresses of all Lock-Box Banks and Blocked Account Banks, together
with the account numbers of the Lock-Box Accounts of Navistar at each Lock-Box
Bank and Blocked Accounts of Seller at each Blocked Account Bank and the
post
office box number of each Lock-Box, are listed on Exhibit W. Seller and Navistar
each represents that it has not granted any Person, other than the Agent
as
contemplated by this Agreement, dominion and control of any Lock-Box or Lock-Box
Account, or the right to take dominion and control of any such Lock-Box or
Lock-Box Account at a future time or upon the occurrence of a future
event.
(m) Material
Adverse
Effect. (i) The initial Servicer represents and warrants that since the
last day of the most recent fiscal year for which it has filed a Form 10-K,
no
event has occurred that would have a material adverse effect on the financial
condition or operations of the initial Servicer and its Subsidiaries, taken
as a
whole, or the ability of the initial Servicer to perform its obligations
under
this Agreement, and (ii) Seller represents and warrants that since the date
of
this Agreement, no event has occurred that would have a material adverse
effect
on (A) the financial condition or operations of Seller, (B) the ability of
Seller to perform its obligations under the Transaction Documents, or (C)
the
collectibility of the Receivables generally or any material portion of the
Receivables.
(n) Names.
In the past
five (5) years, such Seller Party has not used any corporate names, trade
names
or assumed names other than the name in which it has executed this Agreement
and
as listed on Schedule
5.1(n).
(o) Ownership
of Seller.
Transferor owns, directly or indirectly, 100% of the issued and outstanding
capital stock of Seller, free and clear of any Adverse Claim other than any
Adverse Claim on such stock granted in connection with the Transferor Credit
Agreement. Such capital stock is validly issued, fully paid and nonassessable,
and there are no options, warrants or other rights to acquire securities
of
Seller.
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(p) Not
a Holding Company or an
Investment Company. Such Seller Party is not a "holding company" or a
"subsidiary holding company" of a "holding company" within the meaning of
the
Public Utility Holding Company Act of 1935, as amended, or any successor
statute. Such Seller Party is not an "investment company" within the meaning
of
the Investment Company Act of 1940, as amended, or any successor statute.
(q) Compliance
with Law.
Such Seller Party has complied in all respects with all applicable laws,
rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to
which
it may be subject, except where the failure to do so, individually or in
the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
Each Receivable, together with the Contract related thereto, does not contravene
any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy), and no part of such Contract is in violation
of any such law, rule or regulation.
(r) Compliance
with Credit and
Collection Policy. Such Seller Party has complied in all material
respects with the Credit and Collection Policy with regard to each Receivable
and the related Contract, and has not made any change to such Credit and
Collection Policy, except such changes as to which the Agent has been notified
in accordance with Section 7.1(a)(vii) and as permitted by Section 7.2(c).
(s) Payments
to
Transferor. With respect to each Receivable transferred to Seller under
the Receivables Sale Agreement, Seller has given reasonably equivalent value
to
Transferor in consideration therefor and such transfer was not made for or
on
account of an antecedent debt. No transfer by Transferor of any Receivable
under
the Receivables Sale Agreement is or may be voidable under any section of
the
Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.
(t) Enforceability
of
Contracts. Each Contract with respect to each Receivable is effective to
create, and has created, a legal, valid and binding obligation of the related
Obligor to pay the Outstanding Balance of the Receivable created thereunder
and
any accrued interest thereon, enforceable against the Obligor in accordance
with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally and by general principles of equity (regardless
of
whether enforcement is sought in a proceeding in equity or at law).
(u) Eligible
Receivables.
Each Receivable included in the Net Receivables Balance as an Eligible
Receivable was an Eligible Receivable on the date of its purchase under the
Receivables Sale Agreement.
(v) Net
Receivables
Balance. Seller has determined that, immediately after giving effect to
each purchase hereunder, the Net Receivables Balance is at least equal to
the
sum of (i) the Aggregate Capital, plus (ii) the Aggregate Reserves.
(w) Obligor
Litigation.
No Obligor is immune from civil and commercial law and suit on the grounds
of
sovereignty otherwise from any legal action, suit or proceeding such that
Agent
or its designees would be unable to litigate any claim against such Obligor
in
respect of any Receivable.
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(x) Default.
No material
default is in existence pursuant to the Transfer Agreement relating to the
Receivables or that would adversely effect the transfer of the Receivables
from
the Originator to the Transferor.
Section
5.2
Financial Institution
Representations and Warranties. Each Financial Institution hereby
represents and warrants to the Agent, Conduit and each Seller Party that:
(a) Existence
and Power.
Such Financial Institution is a corporation or a banking association duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, and has all corporate power
to
perform its obligations hereunder.
(b) No
Conflict. The
execution and delivery by such Financial Institution of this Agreement and
the
performance of its obligations hereunder are within its corporate powers,
have
been duly authorized by all necessary corporate action, do not contravene
or
violate (i) its certificate or articles of incorporation or association or
by-laws, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a
party
or any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not
result in the creation or imposition of any Adverse Claim on its assets.
This
Agreement has been duly authorized, executed and delivered by such Financial
Institution.
(c) Governmental
Authorization. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution and delivery by such Financial Institution
of
this Agreement and the performance of its obligations hereunder.
(d) Binding
Effect. This
Agreement constitutes the legal, valid and binding obligation of such Financial
Institution enforceable against such Financial Institution in accordance
with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally and by general principles of equity (regardless
of
whether such enforcement is sought in a proceeding in equity or at law).
(e) Authority;
Due
Authorization, Execution and Delivery. The execution and delivery by such
Financial Institution of this Agreement and each other Transaction Document
to
which it is a party, and the performance of its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action on
its
part. This Agreement and each other Transaction Document to which such Financial
Institution is a party has been duly executed and delivered by such Financial
Institution.
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ARTICLE
VI.
CONDITIONS
OF
PURCHASES
Section
6.1 Conditions Precedent
to
Initial Incremental Purchase. The initial Incremental Purchase of a
Purchaser Interest under this Agreement is subject to the conditions precedent
that (a) the Agent shall have received on or before the date of such purchase
those documents listed on Schedule B and (b) the Agent shall have received
all
fees and expenses required to be paid on such date pursuant to the terms
of this
Agreement and the Fee Letter.
Section
6.2
Conditions Precedent
to All Purchases and Reinvestments. Each purchase of a Purchaser Interest
(other than pursuant to Section 13.1) and each Reinvestment shall be subject
to
the further conditions precedent that (a) in the case of each such purchase
or
Reinvestment: (i) the Servicer shall have delivered to the Agent on or prior
to
the date of such purchase, in form and substance satisfactory to the Agent,
all
Monthly Reports and Weekly Reports as and when due under Section 8.5 and
(ii)
upon the Agent's request, the Servicer shall have delivered to the Agent
at
least two (2) days prior to such purchase or Reinvestment an interim Weekly
Report showing the amount of Eligible Receivables; (b) the Facility Termination
Date shall not have occurred; (c) the Agent shall have received such other
approvals, opinions or documents as it may reasonably request as are customary
in similar transactions in order to protect the interests of Agent and the
Purchasers under or as contemplated in the Transaction Documents and (d)
on the
date of each such Incremental Purchase or Reinvestment, the following statements
shall be true (and acceptance of the proceeds of such Incremental Purchase
or
Reinvestment shall be deemed a representation and warranty by Seller that
such
statements are then true):
(i) the
representations and warranties set forth in Section 5.1 are true and correct
on
and as of the date of such Incremental Purchase or Reinvestment as though
made
on and as of such date;
(ii) no event has
occurred and is continuing, or would result from such Incremental Purchase
or
Reinvestment, that will constitute an Amortization Event, and no event has
occurred and is continuing, or would result from such Incremental Purchase
or
Reinvestment, that would constitute a Potential Amortization Event; and
(iii) the
Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%.
It
is expressly understood that each Reinvestment shall, unless
otherwise directed by the Agent or any Purchaser, occur automatically on
each
day that the Servicer shall receive any Collections without the requirement
that
any further action be taken on the part of any Person and notwithstanding
the
failure of Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. Unless waived in writing by Agent, the failure
of
Seller to satisfy any of the foregoing conditions precedent in respect of
any
Reinvestment shall give rise to a right of the Agent, which right may be
exercised at any time on demand of the Agent, to rescind the related purchase
and direct Seller to pay to the Agent for the benefit of the Purchasers an
amount equal to the Collections prior to the Amortization Date that shall
have
been applied to the affected Reinvestment.
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ARTICLE
VII.
COVENANTS
Section
7.1 Affirmative Covenants
of the
Seller Parties. Until the date on which the Aggregate Unpaids have been
indefeasibly paid in full and this Agreement terminates in accordance with
its
terms, each Seller Party hereby covenants, as to itself, as set forth
below:
(a) Financial
Reporting.
Such Seller Party will maintain a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be furnished
to
the Agent:
(i) Annual
Reporting.
Within 90 days after the close of each fiscal year of the Parent and Transferor,
(A) the Parent's and Transferor's Form 10-K for such fiscal year, which shall
include its respective audited consolidated statement of financial condition
and
related statements of consolidated income and retained earnings and consolidated
cash flow as of the end of and for such fiscal year, setting forth in each
case
in comparative form the figures for the previous fiscal year, all reported
on by
Deloitte & Touche, LLP or other independent public accountants of recognized
national standing (without any qualification or exception as to the scope
of
such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations and cash flow of the Parent and Transferor and its respective
consolidated Subsidiaries on a consolidated basis in accordance with GAAP,
consistently applied and (B) the Seller's unaudited consolidated statement
of
financial condition and related statements of consolidated income and retained
earnings as of the end of such year, certified by one of Seller's Authorized
Officers as presenting fairly in all material respects the financial condition
and results of operation of Seller in accordance with GAAP, consistently
applied
subject to normal year-end audit adjustments and absence of footnotes.
(ii) Quarterly
Reporting.
Within 45 days after the end of each of the first three fiscal quarters of
each
fiscal year of Parent and Transferor, the Parent's and Transferor's Form
10-Q
for such fiscal quarter, which shall include its consolidated statement of
financial condition and related statements of consolidated income and retained
earnings and respective consolidated cash flow as of the end of and for the
then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the correspondence period or periods of (or, in the
case of
the statement of financial condition, as of the end of) the previous fiscal
year, all certified by one of its respective Authorized Officers as presenting
fairly in all material respects the financial condition and results of
operations and cash flow of the Parent and Transferor and its respective
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP,
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consistently
applied, subject to normal year-end audit adjustments
and the absence of footnotes.
(iii) Compliance
Certificate. Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit V signed by an
Authorized Officer of the Seller.
(iv) Transferor
Credit Agreement
Compliance Certificate. At the same time as delivered under the
Transferor Credit Agreement, a copy of the compliance certificate delivered
pursuant to Section 7.01(c) of the Transferor Credit Agreement.
(v) [Intentionally
Omitted]
(vi) Copies
of Notices.
Promptly upon its receipt of any notice, request for consent, financial
statements, certification, report or other communication under or in connection
with any Transaction Document from any Person other than the Agent or Conduit,
copies of the same.
(vii) Change
in Credit and
Collection Policy. At least ten (10) days prior to the effectiveness of
any material change in or material amendment to the Credit and Collection
Policy, a copy of the Credit and Collection Policy then in effect and a notice
indicating such change or amendment, provided that if such proposed change
or
amendment would be reasonably likely to materially and adversely affect the
collectibility of the Receivables or materially decrease the credit quality
of
any newly created Receivables, such change shall not be effective without
the
Agent's consent thereto, which consent shall not be unreasonably withheld
and
such consent or refusal to consent shall be given within fifteen (15) Business
Days of the acknowledgment of receipt of such request, as acknowledged in
writing, electronically or otherwise, by a Responsible Agent Party.
(viii) Other
Information.
Promptly, from time to time, such other information, documents, records or
reports relating to the Receivables or the condition or operations, financial
or
otherwise, of such Seller Party as the Agent may from time to time reasonably
request as such information, documents, records or reports are necessary
or
reasonably desirable to determine the capability of such Seller Party to
perform
its obligations under any Transaction Document to which it is a party and
in
order to protect the interests of the Agent and the Purchasers under or as
contemplated by this Agreement.
(b) Notices.
Such Seller
Party will notify the Agent in writing of any of the following promptly upon
learning of the occurrence thereof, describing the same and, if applicable,
the
steps being taken with respect thereto:
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(i) Amortization
Events or
Potential Amortization Events. The occurrence of each Amortization Event
and each Potential Amortization Event, by a statement of an Authorized Officer
of such Seller Party.
(ii) Judgment
and
Proceedings. The entry of any judgment or decree or the filing or
commencement of any litigation or any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting the Servicer,
any
Subsidiary or any Affiliate thereof that would reasonably be expected to
result
in a Material Adverse Effect.
(iii) [Intentionally
Omitted]
(iv) Termination
Date. The
occurrence of the "Termination
Date"
under and as defined in the Receivables Sale Agreement.
(v) Defaults.
The
occurrence of a default or an event of default under any other financing
arrangement with obligations in an aggregate principal amount equal to or
in
excess of $50,000,000 pursuant to which such Seller Party is a debtor or
an
obligor.
(vi) Downgrade
of
Transferor. Any downgrade in the rating of any Indebtedness of Transferor
by Standard & Poor's Ratings Group or by ▇▇▇▇▇'▇ Investors Service, Inc.,
setting forth the Indebtedness affected and the nature of such change.
(c) Compliance
with Laws and
Preservation of Corporate Existence. Such Seller Party will comply in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply would not reasonably be expected to have a Material
Adverse
Effect. Such Seller Party will preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation,
and
qualify and remain qualified in good standing as a foreign corporation in
each
jurisdiction where its business is conducted, except where the failure to
so
preserve and maintain or qualify would not reasonably be expected to have
a
Material Adverse Effect.
(d) Audits.
Such Seller
Party will furnish to the Agent from time to time such information with respect
to it and the Receivables as the Agent may reasonably request to the extent
such
information is necessary or reasonably desirable to determine the capability
of
such Seller Party to perform its obligations under any Transaction Document
to
which it is a party. Such Seller Party will, from time to time during regular
business hours as requested by the Agent upon reasonable notice and at the
sole
cost of such Seller Party, permit the Agent, or its agents or representatives
(and shall cause Transferor to permit the Agent or its agents or
representatives), (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Person relating to
the
Receivables and the Related Security, including, without limitation, the
related
Contracts, and (ii) to visit the offices and properties of such Person for
the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to the Receivables and the Related Security or any
Person's performance under any of
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the
Transaction Documents or any Person's performance under the
Contracts and, in each case, with any of the Authorized Officer's of Seller
or
the Servicer having knowledge of such matters (each of the foregoing
examinations and visits, a "Review');
provided, however,
that, so long as no Amortization Event or Servicing Termination
Event has occurred and is continuing, Seller Parties, collectively, shall
only
be responsible for the costs and expenses of one (1) Review in any one calendar
year, including any audit under Section 4.1(d) of the
Sale Agreement. Notwithstanding anything herein to the contrary, no Seller
Party
shall have any obligation to take any action in conflict with any applicable
law, rule, regulation or contractual obligation prohibiting the disclosure
of
confidential information with respect to any Obligor; provided,
however,
with respect to any contractual obligation, such Seller Party
shall use its commercially reasonable efforts to obtain any applicable consent
to disclose such information upon the request of the Agent.
(e) Keeping
and Marking of
Records and Books.
(i) The Servicer
will (and will cause Transferor to) maintain and implement administrative
and
operating procedures (including, without limitation, an ability to recreate
records evidencing Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the
immediate identification of each new Receivable and all Collections of and
adjustments to each existing Receivable).
(ii) Such Seller
Party will (and will cause Transferor to) (A) on or prior to the date hereof,
▇▇▇▇ its master data processing records relating to the Purchaser Interests
with
a legend, acceptable to the Agent, describing the Purchaser Interests and
(B)
upon the request of the Agent after the occurrence of any Amortization Event
and
the replacement of the Servicer pursuant hereto deliver to the Agent all
Records
(including, without limitation, all multiple originals of any Contract) relating
to the Receivables, provided, that such Seller Party shall have no obligation
to
take any action in conflict with any applicable law, rule, regulation or
contractual obligation prohibiting the disclosure of confidential information
with respect to any Obligor; provided,
however,
with respect to any contractual obligation, such Seller Party
shall use its commercially reasonable efforts to obtain any applicable consent
to disclose such information upon the request of the Agent.
(f) Compliance
with Contracts
and Credit and Collection Policy. Such Seller Party will (and will cause
Transferor to) timely and fully (i) perform and comply in all material respects
with all provisions, covenants and other promises required to be observed
by it
under the Contracts related to the Receivables, and (ii) comply in all material
respects with the Credit and Collection Policy in regard to each Receivable
and
the related Contract.
(g) Performance
and Enforcement
of Receivables Sale Agreement andTransfer
Agreement.
Seller will, and will require Transferor to, perform each of their respective
obligations and undertakings under and pursuant to the Receivables Sale
Agreement and the
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Transfer
Agreement relating in any material respect to the
Receivables, will purchase Receivables thereunder in accordance with the
terms
thereof and will enforce the rights and remedies accorded to Seller or
Transferor, as applicable, under the Receivables Sale Agreement and the Transfer
Agreement with respect to the Receivables. Seller will, and will require
Transferor to, take all actions to perfect and enforce its rights and interests
(and the rights and interests of the Agent and the Purchasers as assignees
of
Seller) under the Receivables Sale Agreement and the Transfer Agreement with
respect to the Receivables as the Agent may from time to time reasonably
request, including, without limitation, making claims to which it may be
entitled under any indemnity, reimbursement or similar provision contained
in
the Receivables Sale Agreement and the Transfer Agreement with respect to
the
Receivables.
(h) Ownership.
Seller
will (or will cause Transferor to) take all necessary action to (i) vest
legal
and equitable title to the Receivables, the Related Security and the Collections
purchased under the Receivables Sale Agreement irrevocably in Seller, free
and
clear of any Adverse Claims other than Adverse Claims in favor of the Agent
and
the Purchasers (including, without limitation, the filing of all financing
statements or other similar instruments or documents necessary under the
UCC (or
any comparable law) of all appropriate jurisdictions to perfect Seller's
interest in such Receivables, Related Security and Collections to the extent
such interest can be perfected by filing under Article 9 of the UCC and such
other action to perfect, protect or more fully evidence the interest of Seller
therein as the Agent may reasonably request), and (ii) establish and maintain,
in favor of the Agent, for the benefit of the Purchasers, a valid and perfected
first priority undivided percentage ownership interest (and/or a valid and
perfected first priority security interest) in all Receivables, Related Security
and Collections to the extent such interest can be perfected by filing under
Article 9 of the UCC to the full extent contemplated herein, free and clear
of
any Adverse Claims other than Adverse Claims in favor of the Agent for the
benefit of the Purchasers (including, without limitation, the filing of all
financing statements or other similar instruments or documents necessary
under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect
the
Agent's (for the benefit of the Purchasers) interest in such Receivables,
Related Security and Collections to the extent such interest can be perfected
by
filing under Article 9 of the UCC and such other action to perfect, protect
or
more fully evidence the interest of the Agent for the benefit of the Purchasers
as the Agent may reasonably request).
(i ) Purchasers'
Reliance.
Seller acknowledges that the Purchasers are entering into the transactions
contemplated by this Agreement in reliance upon Seller's identity as a legal
entity that is separate from Transferor. Therefore, from and after the date
of
execution and delivery of this Agreement, Seller shall take reasonable steps,
including, without limitation, all steps that the Agent or any Purchaser
may
from time to time reasonably request, to maintain Seller's identity as a
separate legal entity and to make it manifest to third parties that Seller
is an
entity with assets and liabilities distinct from those of Transferor and
any
Affiliates thereof and not just a division of Transferor or any such Affiliate.
Without limiting the generality of the foregoing and in addition to the other
covenants set forth herein, Seller will:
(A) conduct
its own business in its own name and require that all full-time employees
of
Seller, if any, identify themselves as such and not as employees of Transferor
or any Affiliate (including, without limitation, by means of providing
appropriate employees with business or identification cards identifying such
employees as Seller's employees);
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(B) compensate all
employees, if any, consultants and agents directly, from Seller's own funds,
for
services provided to Seller by such employees, consultants and agents and,
to
the extent any employee, consultant or agent of Seller is also an employee,
consultant or agent of Transferor or any Affiliate thereof, allocate the
compensation of such employee, consultant or agent between Seller and Transferor
or such Affiliate, as applicable, on a basis that reflects the services rendered
to Seller and Transferor or such Affiliate, as applicable;
(C) [Intentionally
Deleted];
(D) have a separate
office subject to, if applicable, a lease with a fair market rent, a separate
telephone number, which will be answered identifying its name, and separate
stationery, invoices and checks in its own name;
(E) conduct all
transactions with Transferor and the Servicer (including, without limitation,
any delegation of its obligations hereunder as Servicer) strictly on an
arm's-length basis, allocate all overhead expenses (including, without
limitation, telephone and other utility charges) for items shared between
Seller
and Transferor on a basis reasonably related to actual use;
(F) at all times
have a Board of Directors consisting of three members, at least one member
of
which is an Independent Director;
(G) observe all
corporate formalities as a distinct entity, and ensure that all corporate
actions relating to (1) the selection, maintenance or replacement of the
Independent Director, (2) the dissolution or liquidation of Seller or (3)
the
initiation of, participation in, acquiescence in or consent to any bankruptcy,
insolvency, reorganization or similar proceeding involving Seller, are duly
authorized in case of clause (1) and, in the case of clause (2) and (3),
duly
authorized by unanimous vote of its Board of Directors (including the
Independent Director);
(H) maintain
Seller's books and records separate from those of Transferor and any Affiliate
thereof and otherwise readily identifiable as its own assets rather than
assets
of Transferor and any Affiliate thereof;
(I) prepare its
financial statements separately from those of Transferor and insure that
any
consolidated financial statements of Transferor or any Affiliate thereof
that
include Seller and that are filed with the Securities and Exchange Commission
or
any other governmental agency have notes clearly stating that Seller is a
separate corporate entity and that its assets will be available first and
foremost to satisfy the claims of the creditors of Seller;
(J)
except as herein specifically
otherwise provided, maintain the funds or other
assets of Seller separate from, and not commingled with, those of Transferor
or
any Affiliate thereof and only maintain bank accounts or other depository
accounts to which Seller or Servicer alone is the account party, into which
Seller or Servicer alone makes deposits and from which Seller or Servicer
alone
(or the Agent hereunder) has the power to make withdrawals;
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(K) pay all of
Seller's operating expenses from Seller's own assets (except for certain
payments by Transferor or other Persons pursuant to allocation arrangements
that
comply with the requirements of this Section 7.1(i));
(L) operate its
business and activities such that it does not create, incur, guarantee, assume
or suffer to exist any indebtedness or other liabilities, whether direct
or
contingent, other than (1) as a result of the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, (2) the incurrence of obligations under this Agreement,
(3)
the incurrence of obligations, as expressly contemplated in the Receivables
Sale
Agreement, to make payment to Transferor thereunder for the purchase of
Receivables from Transferor under the Receivables Sale Agreement, and (4)
the
incurrence of operating expenses in the ordinary course of business of the
type
otherwise contemplated by this Agreement;
(M) maintain its
corporate charter in conformity with this Agreement, such that it does not
amend, restate, supplement or otherwise modify its Certificate of Incorporation
or By-Laws in any respect that would impair its ability to comply with the
terms
or provisions of any of the Transaction Documents, including, without
limitation, Section 7.1(i) of this Agreement;
(N) maintain the
effectiveness of, and continue to perform under the Receivables Sale Agreement,
such that it does not amend, restate, supplement, cancel, terminate or otherwise
modify the Receivables Sale Agreement or give any consent, waiver, directive
or
approval thereunder or waive any default, action, omission or breach under
the
Receivables Sale Agreement or otherwise grant any indulgence thereunder,
without
(in each case) the prior written consent of the Agent, which consent shall
not
be unreasonably withheld;
(0) maintain
its corporate separateness such that it does not merge or consolidate with
or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions, and except as otherwise contemplated
herein) all or substantially all of its assets (whether now owned or hereafter
acquired) to, or acquire all or substantially all of the assets of, any Person,
nor at any time create, have, acquire, maintain or hold any interest in any
Subsidiary; and
(P) take
such other actions as are necessary on its part to ensure that the facts and
assumptions set forth in the opinion issued by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as
counsel for Seller, in connection with the closing or initial Incremental
Purchase under this Agreement and relating to substantive consolidation issues,
and in the certificates accompanying such opinion, remain true and correct
in
all material respects at all times.
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(j) Collections.
Such
Seller Party will cause (1) all proceeds from all Lock-Boxes to be directly
deposited by a Lock-Box Bank into a Lock-Box Account, (2) each Lock-Box and
Lock-Box Account to be subject at all times to a Lock-Box Account Agreement
and
each Blocked Account to be subject to a Blocked Account Agreement, in each
case,
that is in full force and effect. Such Seller Party will cause all proceeds
in
any Lock-Box Account (unless Agent shall have sent any applicable Collection
Notice pursuant to Section 8.3) to be deposited into the Specified NFC
Allocation Account. Such Seller Party shall deposit all proceeds with respect
to
the Receivables in the Specified NFC Allocation Account (or cause such proceeds
to be deposited) into a Blocked Account within two (2) Business Days following
deposit of such proceeds into the Specified NFC Allocation Account. In the
event
any payments relating to Receivables are remitted directly to Seller or any
Affiliate of Seller, Seller will remit (or will cause all such payments to
be
remitted) directly to a Blocked Account Bank and deposited into a Blocked
Account within two (2) Business Days following receipt thereof, and, at all
times prior to such remittance, Seller will itself hold or, if applicable,
will
cause such payments to be held in trust for the exclusive benefit of the
Agent
and the Purchasers. Seller will maintain dominion and control (subject to
the
terms of this Agreement) of each Lock-Box, Lock-Box Account and Blocked Account
and shall not grant the right to take dominion and control of any Lock-Box,
Lock-Box Account or Blocked Account at a future time or upon the occurrence
of a
future event to any Person, except to the Agent as contemplated by this
Agreement.
(k) Taxes.
Such Seller
Party will file all tax returns and reports required by law to be filed by
it
and will promptly pay all taxes and governmental charges at any time owing,
except (a) any such taxes which are not yet delinquent or are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books or
(b)
to the extent the failure to do so would not reasonably be expected to result
in
a Material Adverse Effect. Seller will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured by income
or
gross receipts of Conduit, the Agent or any Financial Institution.
(1) Insurance.
Seller
will maintain in effect, or cause to be maintained in effect, at Seller's
own
expense, such casualty and liability insurance as Seller shall deem appropriate
in its good faith business judgment.
(m) Payment
to Transferor and
Originator. With respect to any Receivable purchased by Seller from
Transferor, such sale shall be effected under the Receivables Sale Agreement,
including, without limitation, the terms relating to the amount and timing
of
payments to be made to Transferor in respect of the purchase price for such
Receivable. With respect to any Receivable purchased by Transferor from
Originator, such sale shall be effected in accordance with the terms of the
Transfer Agreement, including, without limitation, the terms relating to
the
amount and timing of payments to be made to Parent in respect of the purchase
price for such Receivable.
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Section
7.2 Negative Covenants
of The
Seller Parties. Until the date on which the Aggregate Unpaids have been
indefeasibly paid in full and this Agreement terminates in accordance with
its
terms, each Seller Party hereby covenants, as to itself, that:
(a) Name
Change, Offices and
Records. Such Seller Party will not change its name, identity or
corporate structure (within the meaning of Section 9-507 of any applicable
enactment of the UCC), change its state of organization or relocate any office
where Records are kept unless it shall have: (i) given the Agent at least
twenty
(20) Business Days' prior written notice thereof and (ii) delivered to the
Agent
all financing statements, instruments and other documents reasonably requested
by the Agent in connection with such change or relocation.
(b) Change
in Payment
Instructions to Obligors. Except as may be required by the Agent pursuant
to Section 8.2(b), such Seller Party will not add or terminate any bank as
a
Blocked Account Bank or Lock-Box Bank, or make any change in the instructions
to
Obligors regarding payments to be made to any Lock-Box or Blocked Account,
unless the Agent shall have received, at least ten (10) days before the proposed
effective date therefor, (i) written notice of such addition, termination
or
change and (ii) with respect to the addition of a Lock-Box Bank, or a Blocked
Account Bank or a Blocked Account, Lock-Box Account or Lock-Box, an executed
Lock-Box Account Agreement or Blocked Account Agreement, as applicable, with
respect to the new Blocked Account, Lock-Box Account or Lock-Box; provided,
however, that the Servicer may make changes in instructions to Obligors
regarding payments if such new instructions require such Obligor to make
payments to another existing Lock-Box, Lock-Box Account or Blocked
Account.
(c) Modifications
to Contracts
and Credit and Collection Policy. Such Seller Party will not, and will
not permit Transferor to, make any change to the Credit and Collection Policy
that would reasonably be expected to materially and adversely affect the
collectibility of the Receivables or materially decrease the credit quality
of
any newly created Receivables unless such change shall be consented to by
the
Agent. Except as provided in Section 8.2(d), the Servicer will not, and will
not
permit Transferor to, extend, amend or otherwise modify the terms of any
Receivable or any Contract related thereto other than in accordance with
the
Credit and Collection Policy.
(d) Sales,
Liens. Seller
will not sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, or create or suffer to exist any
Adverse Claim upon (including, without limitation, the filing of any financing
statement) or with respect to, any Receivable, Related Security or Collections,
or upon or with respect to any Contract under which any Receivable arises,
or
any Lock-Box, Lock-Box Account or Blocked Account, or assign any right to
receive income with respect thereto (other than, in each case, the creation
of
the interests therein in favor of the Agent and the Purchasers provided for
herein), and Seller will defend the right, title and interest of the Agent
and
the Purchasers in, to and under any of the foregoing property, against all
claims of third parties claiming through or under Seller or Transferor. Seller
will not create or suffer to exist any mortgage, pledge, security interest,
encumbrance, lien, charge or other similar arrangement on any of its inventory,
the sale of which gives rise to any Receivable.
(e) [Intentionally
Omitted]
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(f) Termination
Date
Determination. Seller will not designate the Termination Date (as defined
in the Receivables Sale Agreement), or send any written notice to Transferor
in
respect thereof, without the prior written consent of the Agent, except with
respect to the occurrence of such Termination Date arising pursuant to Section
5.1(d) of the Receivables Sale Agreement or in connection with clause (iv)
of
the definition of Amortization Date.
(g) Restricted
Junior
Payments. From and after the occurrence of any Amortization Event, Seller
will not make any Restricted Junior Payment if, after giving effect thereto,
the
Net Receivables Balance would be less than the sum of (i) the Aggregate Capital
plus (ii) the Aggregate Reserves.
(h) Accounting.
Such
Seller Party will not, and will not permit any Affiliate to, account for
or
treat (whether in financial statements or otherwise) the transactions
contemplated by this Agreement and the Receivables Sale Agreement in any
manner
other than as is consistent with the true sale analyses set forth in the
opinion
issued by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel for Seller, in connection with
the closing or initial Incremental Purchase under this Agreement.
ARTICLE
VIII.
ADMINISTRATION
AND
COLLECTION
Section
8.1 Designation of
Servicer.
(a) The servicing,
administration and collection of the Receivables shall be conducted by such
Person (the "Servicer")
so designated from
time to time in accordance with this Section 8.1.
Navistar is hereby designated as, and hereby agrees to perform the duties
and
obligations of, the Servicer pursuant to the terms of this Agreement. The
Agent
may at any time after a Servicer Termination Event designate as Servicer
any
Person to succeed Navistar or any successor Servicer.
(b) Without the
prior written consent of the Agent and the Required Financial Institutions,
Navistar shall not be permitted to delegate any of its duties or
responsibilities as Servicer to any Person other than (i) an Affiliate of
Navistar and (ii) with respect to certain Charged-Off Receivables, outside
collection agencies in accordance with its customary practices. Such Affiliate
shall not be permitted to further delegate to any other Person any of the
duties
or responsibilities of the Servicer delegated to it by Navistar. If at any
time
the Agent shall designate as Servicer any Person other than Navistar, all
duties
and responsibilities theretofore delegated by Navistar to Seller may, at
the
discretion of the Agent, be terminated forthwith on notice given by the Agent
to
Navistar and to Seller.
(c) Notwithstanding
the foregoing subsection (b), (i) Navistar , at all times that it or one
of its
Affiliates is the Servicer, shall be and remain primarily liable to the Agent
and the Purchasers for the full and prompt performance of all duties and
responsibilities of the Servicer hereunder and (ii) the Agent and the Purchasers
shall be entitled to deal exclusively with Navistar in matters relating to
the
discharge by the Servicer of its duties and responsibilities hereunder. The
Agent and the Purchasers shall not be required to give notice, demand or
other
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communication
to any Person other than Navistar at all times that it
or an Affiliate of Navistar is Servicer in order for communication to the
Servicer and its permitted delegate with respect thereto to be accomplished.
Navistar, at all times that it is the Servicer, shall be responsible for
providing any sub-servicer or other delegate of the Servicer with any notice
given to the Servicer under this Agreement.
Section
8.2 Duties
of
Servicer.
(a) The
Servicer shall take or cause to be taken
all such actions as may be necessary or advisable to collect each Receivable
from time to time, all in accordance with applicable laws, rules and
regulations, with reasonable care and diligence, and in accordance with the
Credit and Collection Policy.
(b) The
Servicer will instruct all Obligors to pay
all Collections directly to a Lock-Box, Lock-Box Account or Blocked Account.
The
Servicer shall effect a Blocked Account Agreement with each bank party to
a
Blocked Account and a Lock-Box Account Agreement with each bank party to
a
Lock-Box Account at any time. In the case of any remittances received in
any
Lock-Box, Lock-Box Account or Blocked Account that shall have been identified,
to the satisfaction of the Servicer, to not constitute Collections or other
proceeds of the Receivables or the Related Security, the Servicer shall promptly
remit such items to the Person identified to it as being the owner of such
remittances. From and after the date the Agent delivers to any Lock-Box Bank
a
Collection Notice pursuant to Section 8.3, the Agent may request that the
Servicer, and the Servicer thereupon promptly shall instruct all Obligors
with
respect to the Receivables, to remit all payments thereon to the Blocked
Account
and, at all times thereafter, Seller and the Servicer shall not deposit or
otherwise credit, and shall not permit any other Person to deposit or otherwise
credit to the Blocked Account any cash or payment item other than
Collections.
(c) The
Servicer shall administer the Collections
in accordance with the procedures described herein and in Article II. The
Servicer shall set aside and hold in trust for the account of Seller and
the
Purchasers their respective shares of the Collections in accordance with
Article
II. The Servicer shall, upon the request of the Agent after a Servicer
Termination Event shall have occurred, segregate, in a manner acceptable
to the
Agent, all cash, checks and other instruments received by it from time to
time
constituting Collections from the general funds of the Servicer or Seller
prior
to the remittance thereof in accordance with Article II. If the Servicer
shall
be required to segregate Collections pursuant to the preceding sentence,
the
Servicer shall segregate and deposit into the Blocked Account such allocable
share of Collections of Receivables set aside for the Purchasers on the second
Business Day following receipt by the Servicer of such Collections, duly
endorsed or with duly executed instruments of transfer.
(d) The
Servicer may, in accordance with the
Credit and Collection Policy, extend the maturity of any Receivable or adjust
the Outstanding Balance of any Receivable as the Servicer determines to be
appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as
a
Delinquent Receivable or Charged-Off Receivable or inhibit the rights of
the
Agent or the Purchasers under this Agreement to enforce such Receivable.
Notwithstanding anything to the contrary contained
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herein,
the Agent shall have the absolute and unlimited right after
the occurrence and during the continuance of a Servicer Termination Event
to
direct the Servicer to commence or settle any legal action with respect to
any
Receivable or to foreclose upon or repossess any Related Security.
(e) The
Servicer shall hold in trust for Seller
and the Purchasers all Records that (i) evidence or relate to the Receivables,
the related Contracts and Related Security or (ii) are otherwise necessary
or
desirable to collect the Receivables and shall, as soon as practicable upon
demand of the Agent, make available to the Agent all such Records; provided
that
the Servicer shall have no obligation to take any action in conflict with
any
applicable law, rule, regulation or contractual obligation prohibiting the
disclosure of confidential information with respect to any Obligor; provided,
however,
with respect to any contractual obligation, such Seller Party
shall use its commercially reasonable efforts to obtain any applicable consent
to disclose such information upon the request of the Agent. The Servicer
shall,
as soon as practicable following receipt thereof turn over to Seller any
cash
collections or other cash proceeds not constituting proceeds of the Receivables.
The Servicer shall, from time to time at the request of any Purchaser, furnish
to the Purchasers (promptly after any such request) a calculation of the
amounts
set aside for the Purchasers pursuant to Article II.
(f) Any
payment by an Obligor in respect of any
indebtedness owed by it to Parent, Transferor or Seller shall, except as
otherwise specified by such Obligor or otherwise required by contract or
law and
unless otherwise instructed by the Agent, be applied in accordance with the
Servicer's customary procedures.
Section
8.3 Collection Notices.
The Agent is authorized at any time after the occurrence and during the
continuance of a Servicer Termination Event to date and to deliver to the
Lock-Box Banks the Collection Notices. Seller hereby transfers to the Agent
for
the benefit of the Purchasers, effective when the Agent delivers such notice,
the exclusive ownership and control of each Lock-Box and the Blocked Accounts.
In case any authorized signatory of Navistar or Seller whose signature appears
on a Blocked Account Agreement or Lock-Box Account Agreement shall cease
to have
such authority before the delivery of such notice, such Collection Notice
shall
nevertheless be valid as if such authority had remained in force. Seller
hereby
authorizes the Agent, and agrees that the Agent shall after the occurrence
and
during the continuance of a Servicer Termination Event be entitled to (i)
endorse Seller's name on checks and other instruments representing Collections,
(ii) enforce the Receivables, the related Contracts and the Related Security
and
(iii) take such action as shall be necessary or desirable to cause all cash,
checks and other instruments constituting Collections of Receivables to come
into the possession of the Agent rather than Seller.
Section
8.4 Responsibilities
of
Seller. Anything herein to the contrary notwithstanding, the exercise by
the Agent and the Purchasers of their rights hereunder shall not release
the
Servicer, Parent, the Transferor or Seller from any of their duties or
obligations with respect to any Receivables or under the related Contracts.
The
Purchasers shall have no obligation or liability with respect to any Receivables
or related Contracts, nor shall any of them be obligated to perform the
obligations of Seller.
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Section
8.5 Reports. The Servicer
shall prepare and forward to the Agent (i) on the 15th day of each
month or, if
such day is not a Business Day, the first Business Day thereafter and at
such
times as the Agent shall request, a Monthly Report, (ii) on the first Business
Day of each week a Weekly Report which updates the previous month's Monthly
Report for the previous week's Incremental Purchases and Collections and
(iii)
at such times as the Agent shall reasonably request, a listing by Obligor
of all
Receivables together with an aging of such Receivables.
Section
8.6 Servicing Fees. In
consideration of Navistar's agreement to act as Servicer hereunder, the
Purchasers hereby agree that, so long as Navistar shall continue to perform
as
Servicer hereunder, Seller shall pay over to Navistar a fee (the "Servicing
Fee") on
the first calendar day of each month, in arrears for the immediately preceding
month, equal to 1.0% per annum of the average aggregate Net Receivables during
such prior monthly period, as compensation for its servicing activities.
ARTICLE
IX.
AMORTIZATION
EVENTS
Section
9.1 Amortization Events.
The occurrence of any one or more of the following events shall constitute
an
Amortization Event:
(a) Any
Seller Party shall fail (i) to make any
payment or deposit required hereunder when due; provided,
however,
that no Amortization Event shall occur under this Section
9.1(a)(i) as a result of any Iate payment or deposit (x) which was made before
5:00 p.m. on the applicable due date or (y) which is cured within one (1)
Business Day after any Seller Party has knowledge of such failure if (A)
with
respect to clause (y) only, such late payment or deposit was due to a funds
transmission failure beyond such Seller Party's control, including any failure
of any Lock-Box Bank or Blocked Account Bank to follow transfer instructions,
(B) such late payments or deposits do not occur more than five (5) times
in any
calendar year, and (C) such Seller Party pays all costs incurred by the Agent
as
a direct result of such failure or, (z) solely to the extent such payment
or
deposit represents interest or fees, such failure continues for five (5)
Business Days after any Seller Party has knowledge of such failure, or (ii)
to
perform or observe any term, covenant or agreement hereunder (other than
as
referred to in clause (i) of this paragraph (a) and paragraph 9.1(e)) and
such
failure shall continue for ten (10) consecutive Business Days after such Seller
Party has knowledge of such failure.
(b) Any
representation, warranty, certification or
statement made by any Seller Party in this Agreement, any other Transaction
Document or in any other document delivered pursuant hereto or thereto shall
prove to have been incorrect when made or deemed made and such inaccuracy,
to
the extent capable of being remedied, shall remain unremedied in all material
respects for five (5) Business Days after any Seller Party has knowledge
of such
inaccuracy; provided that the materiality qualifier in this clause shall
not
apply to any representation or warranty which itself contains a materiality
qualifier.
(c) The
Indebtedness outstanding under the
Transferor Credit Agreement shall become due in full prior to its stated
maturity; or shall be declared to be due and payable in fu11or required to
be
prepaid in full prior to the date of maturity thereof, in each case, due
to the
occurrence of an event of default under the Transferor Credit
Agreement.
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(d) (i ) Any Seller
Party shall generally not pay its debts as such debts become due or shall
admit
in writing its inability to pay its debts generally or shall make a general
assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against any Seller Party seeking to adjudicate it bankrupt
or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any
law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or
seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its property
or (iii) any Seller Party shall take any corporate action to authorize any
of
the actions set forth in clauses (i) or (ii) above in this subsection (d).
(e) Seller shall fail to comply with the terms of Section 2.6
hereof
(f) As at the end of
any calendar month, the three month rolling average Delinquency Ratio shall
exceed 5.5% or the three month rolling average Default Trigger Ratio shall
exceed 4.5% or the three month rolling average Dilution Ratio shall exceed
2.5%.
(g) A
Change of Control shall occur.
(h) (i) One or more
final judgments for the payment of money in an amount in excess of $11,600
shall
be entered against Seller or (ii) one or more final judgments for the payment
of
money in an amount in excess of $10,000,000, individually or in the aggregate,
shall be entered against the Servicer on claims not covered by insurance
or as
to which the insurance carrier has denied its responsibility, and such judgment
shall continue unsatisfied and in effect for fifteen (15) consecutive days
without a stay of execution.
(i ) The "Termination
Date"
under and as defined in the Receivables Sale Agreement shall
occur
under the Receivables Sale Agreement or Transferor shall for any reason cease
to
transfer, or cease to have the legal capacity to transfer, or otherwise be
incapable of transferring Receivables to Seller under the Receivables Sale
Agreement.
(j) This Agreement
shall terminate in whole or in part (except in accordance with its terms),
or
shall cease to be effective or to be the legally valid, binding and enforceable
obligation of Seller, or any Obligor shall successfully, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability, or the Agent for the benefit of the Purchasers shall cease
to
have a valid and perfected first priority security interest in the Receivables,
the Related Security, the Collections and the Lock-Box Accounts and Blocked
Accounts to the extent a security interest can be obtained with respect to
such
assets and can be perfected under the UCC and, with respect to the Related
Security, Collections and the Lock-Box Accounts and Blocked Accounts, such
failure to maintain a valid and perfected first priority security interest
would
cause the occurrence of an Amortization Event pursuant to clause (k) of this
Section 9.1.
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(k)
The Net Receivables Balance shall, at any time, be less than
an amount equal to the sum of (i) the Aggregate Capital plus (ii) the Aggregate
Reserves and such failure shall continue for one Business Day after any Seller
Party has knowledge of such failure.
Section
9.2 Remedies. Upon the
occurrence and during the continuation of an Amortization Event, the Agent
may,
or upon the direction of the Required Financial Institutions shall, take
any of
the following actions: (i) replace the Person then acting as Servicer if
such
Amortization Event is a Servicer Termination Event, (ii) declare the
Amortization Date to have occurred, whereupon the Amortization Date shall
forthwith occur, without demand, protest or further notice of any kind, all
of
which are hereby expressly waived by each Seller Party; provided, however,
that
upon the occurrence of an Amortization Event described in Section 9.1(d)(ii),
or
of an actual or deemed entry of an order for relief with respect to any Seller
Party under the Federal Bankruptcy Code, the Amortization Date shall
automatically occur, without demand, protest or any notice of any kind, all
of
which are hereby expressly waived by each Seller Party, (iii) to the fullest
extent permitted by applicable law, declare that the Default Fee shall accrue
with respect to any of the Aggregate Unpaids outstanding at such time, (iv)
deliver the Collection Notices to the Lock-Box Banks and the Blocked Account
Banks, and (v) if there has been a transfer of servicing, notify Obligors
of the
Purchasers' interest in the Receivables. The aforementioned rights and remedies
shall be without limitation, and shall be in addition to all other rights
and
remedies of the Agent and the Purchasers otherwise available under any other
provision of this Agreement, by operation of law, at equity or otherwise,
all of
which are hereby expressly preserved, including, without limitation, all
rights
and remedies provided under the UCC, all of which rights shall be
cumulative.
ARTICLE
X.
INDEMNIFICATION
Section
10.1 Indemnities by
the Seller
Parties. Without limiting any other rights that the Agent or any
Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees
to indemnify (and pay upon demand to) the Agent and each Purchaser and their
respective assigns, officers, directors, agents and employees (each an "Indemnified
Party")
from and against any and all damages, losses, claims, taxes,
liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified
Amounts")
awarded against or incurred by any of them arising out of or
as a
result of this Agreement or the acquisition, either directly or indirectly,
by a
Purchaser of an interest in the Receivables, and (B) the Servicer hereby
agrees
to indemnify (and pay upon demand to) each Indemnified Party for Indemnified
Amounts awarded against or incurred by any of them arising out of the Servicer's
activities as Servicer hereunder excluding, however, in all of the foregoing
instances under the preceding clauses (A) and (B):
(i
) Indemnified
Amounts resulted from gross negligence, willful misconduct, violation of
law or
breach of the Transaction Documents on the part of the Indemnified Party
seeking
indemnification;
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(ii) Indemnified
Amounts to the extent the same includes losses in respect of Receivables
that
are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or
(iii) taxes
imposed by any jurisdiction other than a jurisdiction which acquired taxing
authority over the Indemnified Party as a result of the Transactions, on
or
measured by the overall net income of such Indemnified Party to the extent
that
the computation of such taxes is consistent with the characterization for
income
tax purposes of the acquisition by the Purchasers of Purchaser Interests
as a
loan or loans by the Purchasers to Seller secured by the Receivables, the
Related Security, the Lock-Box Accounts, the Blocked Accounts and the
Collections;
provided,
however, that nothing contained in this sentence shall
limit the liability of any Seller Party or limit the recourse of the Purchasers
to any Seller Party for amounts otherwise specifically provided to be paid
by
such Seller Party under the terms of this Agreement. Without limiting the
generality of the foregoing indemnification, Seller shall indemnify the Agent
and the Purchasers for Indemnified Amounts (including, without limitation,
losses in respect of uncollectible receivables, regardless of whether
reimbursement therefor would constitute recourse to Seller or the Servicer)
relating to or resulting from:
(i) any
representation or warranty made by any Seller Party or Transferor (or any
officers of any such Person) under or in connection with this Agreement,
any
other Transaction Document or any other information or report delivered by
any
such Person pursuant hereto or thereto, which shall have been false or incorrect
when made or deemed made;
(ii) the failure
by Seller, the Servicer or Transferor to comply with any applicable law,
rule or
regulation with respect to any Receivable or Contract related thereto, or
the
nonconformity of any Receivable or Contract included therein with any such
applicable law, rule or regulation or any failure of Transferor to keep or
perform any of its obligations, express or implied, with respect to any
Contract;
(iii) any failure
of Seller, the Servicer or Transferor to perform its duties, covenants or
other
obligations in accordance with the provisions of this Agreement or any other
Transaction Document;
(iv) any products
liability, personal injury or damage suit, or other similar claim arising
out of
or in connection with merchandise, insurance or services that are the subject
of
any Contract or any Receivable;
(v) any dispute,
claim, offset or defense (other than discharge in bankruptcy of the Obligor)
of
the Obligor to the payment of any Receivable (including, without limitation,
a
defense based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of
the
merchandise or service related to such Receivable or the furnishing or failure
to furnish such merchandise or services;
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(vi
) the commingling of Collections of Receivables at any time with
other funds;
(vii
) any investigation, litigation or proceeding related to or arising
from this Agreement or any other Transaction
Document, the transactions contemplated hereby, the use of
the proceeds of an Incremental Purchase or a Reinvestment, the ownership
of the
Purchaser Interests or any other investigation, litigation or proceeding
relating to Seller, the Servicer or Transferor in which any Indemnified Party
becomes involved as a result of any of the transactions contemplated
hereby;
(viii) [Intentionally Omitted]
(ix) any Amortization Event described in Section 9.1(d);
(x) any failure of
Seller to acquire and maintain legal and equitable title to, and ownership
of
any Receivable and the Related Security and Collections with respect thereto
from Transferor, free and clear of any Adverse Claim (other than as created
hereunder); or any failure of Seller to give reasonably equivalent value
to
Transferor under the Receivables Sale Agreement in consideration of the transfer
by Transferor of any Receivable, or any attempt by any Person to void such
transfer under statutory provisions or common law or equitable action;
(xi) any failure to
vest and maintain vested in the Agent for the benefit of the Purchasers,
or to
transfer to the Agent for the benefit of the Purchasers, legal and equitable
title to, and ownership of, a first priority perfected undivided percentage
ownership interest (to the extent of the Purchaser Interests contemplated
hereunder) or security interest in the Receivables, the Related Security
and the
Collections, free and clear of any Adverse Claim (except as created by the
Transaction Documents);
(xii) the failure to
have filed, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction or
other
applicable laws with respect to any Receivable, the Related Security and
Collections with respect thereto, and the proceeds of any thereof, whether
at
the time of any Incremental Purchase or Reinvestment or at any subsequent
time;
(xiii) any action by
any Seller Party not required by or omission by any Seller Party not prohibited
by the Transaction Documents which reduces or impairs the rights of the Agent
or
the Purchasers with respect to any Receivable or the value of any such
Receivable;
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(xiv) any attempt by any Person
to void any Incremental Purchase or Reinvestment hereunder under statutory
provisions or common law or equitable action; and
(xv) the
failure of
any Receivable included in the calculation of the Net Receivables Balance
as an
Eligible Receivable to be an Eligible Receivable at the time so included.
Section
10.2 Increased Cost
and Reduced
Return. If after the date hereof, any Funding Source shall be charged any
fee, expense or increased cost on account of the adoption of any applicable
law,
rule or regulation (including any applicable law, rule or regulation regarding
capital adequacy), any accounting principles or any change in any of the
foregoing, or any change in the interpretation or administration thereof
by the
Financial Accounting Standards Board ("FASB'), any governmental authority,
any
central bank or any comparable agency charged with the interpretation or
administration thereof, or compliance with any request or directive (whether
or
not having the force of law) of any such authority or agency (a "Regulatory
Change"):
(i) that
subjects any Funding Source to any charge or withholding on or with respect
to
any Funding Agreement or a Funding Source's obligations under a Funding
Agreement, or on or with respect to the Receivables, or changes the basis
of
taxation of payments to any Funding Source of any amounts payable under any
Funding Agreement (except for changes in the rate of tax on the overall net
income of a Funding Source or taxes excluded by Section 10.1) or (ii)
that imposes, modifies or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits
with
or for the account of a Funding Source, or credit extended by a Funding Source
pursuant to a Funding Agreement or (iii) that imposes any other condition
the
result of which is to increase the cost to a Funding Source of performing
its
obligations under a Funding Agreement, or to reduce the rate of return on
a
Funding Source's capital as a consequence of its obligations under a Funding
Agreement, or to reduce the amount of any sum received or receivable by a
Funding Source under a Funding Agreement or to require any payment calculated
by
reference to the amount of interests or loans held or interest received by
it,
then, upon demand by the Agent, Seller shall pay to the Agent, for the benefit
of the relevant Funding Source, such amounts charged to such Funding Source
or
such amounts to otherwise compensate such Funding Source for such increased
cost
or such reduction; provided,
however, in
no event shall Seller be liable for the payment of any such amounts with
respect
to any increased cost or reduced return accruing more than ninety (90) days
after the Agent obtained knowledge of such increased cost or reduced return
unless the Agent shall notify Seller of the same and then only the portion
accruing after the date of such notice. For the avoidance of doubt, if the
issuance of FASB Interpretation No. 46, or any other change in accounting
standards or the issuance of any other pronouncement, release or interpretation,
causes or requires the consolidation of all or a portion of the assets and
liabilities of Company or Seller with the assets and liabilities of the Agent,
any Financial Institution or any other Funding Source, such event shall
constitute a circumstance on which such Funding Source may base a claim for
reimbursement under this Section.
Section
10.3 Other Costs and
Expenses. Seller shall pay to the Agent and Conduit on demand and
presentment of invoices all costs and out-of-pocket expenses in connection
with
the preparation, execution, delivery and administration of this Agreement,
the
transaction documents contemplated hereby and the other documents to be
delivered hereunder, including without
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limitation,
the cost of Conduit's auditors auditing the books,
records and procedures of Seller once per year, reasonable fees and
out-of-pocket expenses of legal counsel for Conduit and the Agent with respect
thereto and with respect to advising Conduit and the Agent as to their
respective rights and remedies under this Agreement. Seller shall pay to
the
Agent on demand any and all costs and expenses of the Agent and the Purchasers,
if any, (and Agent shall demand such payment when and as such costs and expenses
accrue to the knowledge of the Agent or such Purchaser) including reasonable
counsel fees and expenses in connection with the enforcement of this Agreement
and the other documents delivered hereunder and in connection with any
restructuring or workout of this Agreement or such documents, or the
administration of this Agreement following an Amortization Event.
ARTICLE
XI.
THE
AGENT
Section
11.1 Authorization
and
Action. Each Purchaser hereby designates and appoints Bank One to act as
its agent hereunder and under each other Transaction Document, and authorizes
the Agent to take such actions as agent on its behalf and to exercise such
powers as are delegated to the Agent by the terms of this Agreement and the
other Transaction Documents together with such powers as are reasonably
incidental thereto. The Agent shall not have any duties or responsibilities,
except those expressly set forth herein or in any other Transaction Document,
or
any fiduciary relationship with any Purchaser, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the part
of
the Agent shall be read into this Agreement or any other Transaction Document
or
otherwise exist for the Agent. In performing its functions and duties hereunder
and under the other Transaction Documents, the Agent shall act solely as
agent
for the Purchasers and does not assume nor shall be deemed to have assumed
any
obligation or relationship of trust or agency with or for any Seller Party
or
any of such Seller Party's successors or assigns. The Agent shall not be
required to take any action that exposes the Agent to personal liability
or that
is contrary to this Agreement, any other Transaction Document or applicable
law.
The appointment and authority of the Agent hereunder shall terminate upon
the
indefeasible payment in full of all Aggregate Unpaids. Each Purchaser hereby
authorizes the Agent to execute each of the Uniform Commercial Code financing
statements on behalf of such Purchaser (the terms of which shall be binding
on
such Purchaser).
Section
11.2 Delegation of
Duties.
The Agent may execute any of its duties under this Agreement and each other
Transaction Document by or through agents or attorneys-in-fact and shall
be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
Section
11.3 Exculpatory
Provisions. Neither the Agent nor any of its directors, officers, agents
or employees shall be (i) liable for any action lawfully taken or omitted
to be
taken by it or them under or in connection with this Agreement or any other
Transaction Document (except for its, their or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to any
of
the Purchasers for any recitals, statements,
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representations
or warranties made by any Seller Party contained in
this Agreement, any other Transaction Document or any certificate, report,
statement or other document referred to or provided for in, or received under
or
in connection with, this Agreement, or any other Transaction Document or
for the
value, validity, effectiveness, genuineness, enforceability or sufficiency
of
this Agreement, or any other Transaction Document or any other document
furnished in connection herewith or therewith, or for any failure of any
Seller
Party to perform its obligations hereunder or thereunder, or for the
satisfaction of any condition specified in Article VI, or for the perfection,
priority, condition, value or sufficiency of any collateral pledged in
connection herewith. The Agent shall not be under any obligation to any
Purchaser to ascertain or to inquire as to the observance or performance
of any
of the agreements or covenants contained in, or conditions of, this Agreement
or
any other Transaction Document, or to inspect the properties, books or records
of the Seller Parties. The Agent shall not be deemed to have knowledge of
any
Amortization Event or Potential Amortization Event unless the Agent has received
notice from Seller or a Purchaser.
Section
11.4 Reliance by Agent.
The Agent shall in all cases be entitled to rely, and shall be fully protected
in relying, upon any document or conversation believed by it to be genuine
and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to Seller), independent accountants and other experts selected by
the
Agent. The Agent shall in all cases be fully justified in failing or refusing
to
take any action under this Agreement or any other Transaction Document unless
it
shall first receive such advice or concurrence of Conduit or the Required
Financial Institutions or all of the Purchasers, as applicable, as it deems
appropriate and it shall first be indemnified to its satisfaction by the
Purchasers, provided that unless and until the Agent shall have received
such
advice, the Agent may take or refrain from taking any action, as the Agent
shall
deem advisable and in the best interests of the Purchasers. The Agent shall
in
all cases be fully protected in acting, or in refraining from acting, in
accordance with a request of Conduit or the Required Financial Institutions
or
all of the Purchasers, as applicable, and such request and any action taken
or
failure to act pursuant thereto shall be binding upon all the Purchasers.
Section
11.5 Non-Reliance on
Agent and
Other Purchasers. Each Purchaser expressly acknowledges that neither the
Agent, nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no
act
by the Agent hereafter taken, including, without limitation, any review of
the
affairs of any Seller Party, shall be deemed to constitute any representation
or
warranty by the Agent. Each Purchaser represents and warrants to the Agent
that
it has and will, independently and without reliance upon the Agent or any
other
Purchaser and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of Seller and made its own decision to enter into this
Agreement, the other Transaction Documents and all other documents related
hereto or thereto.
Section
11.6 Reimbursement
and
Indemnification. The Financial Institutions agree to reimburse and
indemnify the Agent and its officers, directors, employees, representatives
and
agents ratably according to their Pro Rata Shares, to the extent not paid
or
reimbursed by the Seller Parties (i) for any amounts for which the Agent,
acting
in its capacity as Agent, is entitled
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to
reimbursement by the Seller Parties hereunder and (ii) for any
other expenses incurred by the Agent, in its capacity as Agent and acting
on
behalf of the Purchasers, in connection with the administration and enforcement
of this Agreement and the other Transaction Documents.
Section
11.7 Agent in its Individual
Capacity. The Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with Seller or any Affiliate
of Seller as though the Agent were not the Agent hereunder. With respect
to the
acquisition of Purchaser Interests pursuant to this Agreement, the Agent
shall
have the same rights and powers under this Agreement in its individual capacity
as any Purchaser and may exercise the same as though it were not the Agent,
and
the terms "Financial
Institution,"
"Purchaser," "Financial Institutions" and "Purchasers"
shall
include the Agent in its individual capacity.
Section
11.8 Successor Agent. The
Agent may, upon ten days' notice to Seller and the Purchasers, and the Agent
will, upon the direction of all of the Purchasers (other than the Agent,
in its
individual capacity) resign as Agent. If the Agent shall resign, then the
Required Financial Institutions during such ten-day period shall appoint
from
among the Purchasers a successor agent. If for any reason no successor Agent
is
appointed by the Required Financial Institutions during such ten-day period,
then effective upon the termination of such ten-day period, the Purchasers
shall
perform all of the duties of the Agent hereunder and under the other Transaction
Documents and Seller and the Servicer (as applicable) shall make all payments
in
respect of the Aggregate Unpaids directly to the applicable Purchasers and
for
all purposes shall deal directly with the Purchasers. After the effectiveness
of
any retiring Agent's resignation hereunder as Agent, the retiring Agent shall
be
discharged from its duties and obligations hereunder and under the other
Transaction Documents and the provisions of this Article XI and Article X
shall
continue in effect for its benefit with respect to any actions taken or omitted
to be taken by it while it was Agent under this Agreement and under the other
Transaction Documents.
ARTICLE
XII.
ASSIGNMENTS;
PARTICIPATIONS
Section
12.1 Assignments.
(a) Seller and each
Financial Institution hereby agree and consent to the complete or partial
assignment by Conduit of all or any portion of its rights under, interest
in,
title to and obligations under this Agreement to the Financial Institutions
pursuant to Section 13.1 or to any other Person, and upon such assignment,
Conduit shall be released from its obligations so assigned. Further, Seller
and
each Financial Institution hereby agree that any assignee of Conduit of this
Agreement or all or any of the Purchaser Interests of Conduit shall have
all of
the rights and benefits under this Agreement as if the term "Conduit"
explicitly
referred to such party, and no such assignment shall in any way impair the
rights and benefits of Conduit hereunder. Except as specifically provided
in
this Agreement, neither Seller nor the Servicer shall have the right to assign
its rights or obligations under this Agreement.
(b) Any Financial
Institution may at any time and from time to time assign to one or more Persons
("Purchasing
Financial
Institutions") all or any part of its rights and
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obligations
under this Agreement pursuant to an assignment agreement,
substantially in the form set forth in Exhibit VII hereto (the "Assignment
Agreement")
executed by such Purchasing Financial Institution and such
selling
Financial Institution. The consent of Conduit shall be required prior to
the
effectiveness of any such assignment. Each assignee of a Financial Institution
must (i) have a short-term debt rating of A-1 or better by Standard & Poor's
Ratings Group and P-1 by ▇▇▇▇▇'▇ Investor Service, Inc. and (ii) agree to
deliver to the Agent, promptly following any request therefor by the Agent
or
Conduit, an enforceability opinion in form and substance satisfactory to
the
Agent and Conduit. Upon delivery of the executed Assignment Agreement to
the
Agent, such selling Financial Institution shall be released from its obligations
hereunder to the extent of such assignment. Thereafter the Purchasing Financial
Institution shall for all purposes be a Financial Institution party to this
Agreement and shall have all the rights and obligations of a Financial
Institution under this Agreement to the same extent as if it were an original
party hereto and no further consent or action by Seller, the Purchasers or
the
Agent shall be required.
(c) Each
of the Financial Institutions agrees that in the event that it shall cease
to
have a short-term debt rating of A-1 or better by Standard & Poor's Ratings
Group and P-1 by ▇▇▇▇▇'▇ Investor Service, Inc. (an "Affected
Financial Institution"),
such Affected Financial Institution shall be obligated, at
the
request of Conduit or the Agent, to assign all of its rights and obligations
hereunder to (x) another Financial Institution or (y) another funding entity
nominated by the Agent and acceptable to Conduit, and willing to participate
in
this Agreement through the Liquidity Termination Date in the place of such
Affected Financial Institution; provided that the Affected Financial Institution
receives payment in full, pursuant to an Assignment Agreement, of an amount
equal to such Financial Institution's Pro Rata Share of the Aggregate Capital
and Yield owing to the Financial Institutions and all accrued but unpaid
fees
and other costs and expenses payable in respect of its Pro Rata Share of
the
Purchaser Interests of the Financial Institutions.
Section
12.2 Participations. Any
Financial Institution may, in the ordinary course of its business at any
time
sell to one or more Persons (each a "Participant")
participating interests in its Pro Rata Share of the Purchaser
Interests of the Financial Institutions, its obligation to pay Conduit its
Acquisition Amounts or any other interest of such Financial Institution
hereunder. Notwithstanding any such sale by a Financial Institution of a
participating interest to a Participant, such Financial Institution's rights
and
obligations under this Agreement shall remain unchanged, such Financial
Institution shall remain solely responsible for the performance of its
obligations hereunder, and Seller, Conduit and the Agent shall continue to
deal
solely and directly with such Financial Institution in connection with such
Financial Institution's rights and obligations under this Agreement. Each
Financial Institution agrees that any agreement between such Financial
Institution and any such Participant in respect of such participating interest
shall not restrict such Financial Institution's right to agree to any amendment,
supplement, waiver or modification to this Agreement, except for any amendment,
supplement, waiver or modification described in Section 14.1(b)(i).
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ARTICLE
XIII.
LIQUIDITY
FACILITY
Section
13.1 Transfer to Financial
Institutions. Each Financial Institution hereby agrees, subject to
Section 13.4, that immediately upon written notice from Conduit delivered
on or
prior to the Liquidity Termination Date, it shall acquire by assignment from
Conduit, without recourse or warranty, its Pro Rata Share of one or more
of the
Purchaser Interests of Conduit as specified by Conduit. Each such assignment
by
Conduit shall be made pro rata among all of the Financial Institutions, except
for pro rata assignments to one or more Terminating Financial Institutions
pursuant to Section 13.6. Each such Financial Institution shall, no later
than
1:00 p.m. (Chicago time) on the date of such assignment, pay in immediately
available funds (unless another form of payment is otherwise agreed between
Conduit and any Financial Institution) to the Agent at an account designated
by
the Agent, for the benefit of Conduit, its Acquisition Amount. Unless a
Financial Institution has notified the Agent that it does not intend to pay
its
Acquisition Amount, the Agent may assume that such payment has been made
and
may, but shall not be obligated to, make the amount of such payment available
to
Conduit in reliance upon such assumption. Conduit hereby sells and assigns
to
the Agent for the ratable benefit of the Financial Institutions, and the
Agent
hereby purchases and assumes from Conduit, effective upon the receipt by
Conduit
of the Conduit Transfer Price, the Purchaser Interests of Conduit which are
the
subject of any transfer pursuant to this Article XIII.
Section
13.2 Transfer Price
Reduction
Yield. If the Adjusted Funded Amount is included in the calculation of
the Conduit Transfer Price for any Purchaser Interest, each Financial
Institution agrees that the Agent shall pay to Conduit the Reduction Percentage
of any Yield received by the Agent with respect to such Purchaser
Interest.
Section
13.3 Payments to Conduit.
In consideration for the reduction of the Conduit Transfer Prices by the
Conduit
Transfer Price Reductions, effective only at such time as the aggregate amount
of the Capital of the Purchaser Interests of the Financial Institutions equals
the Conduit Residual, each Financial Institution hereby agrees that the Agent
shall not distribute to the Financial Institutions and shall immediately
remit
to Conduit any Yield, Collections or other payments received by it to be
applied
pursuant to the terms hereof or otherwise to reduce the Capital of the Purchaser
Interests of the Financial Institutions.
Section
13.4 Limitation on
Commitment to
Purchase from Conduit. Notwithstanding anything to the contrary in this
Agreement, no Financial Institution shall have any obligation to purchase
any
Purchaser Interest from Conduit, pursuant to Section 13.1 or otherwise,
if:
(i) Conduit shall
have voluntarily commenced any proceeding or filed any petition under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation
or
reorganization of Conduit or taken any corporate action for the purpose of
effectuating any of the foregoing; or
(ii) involuntary
proceedings or an involuntary petition shall have been commenced or filed
against Conduit by any Person under any bankruptcy, insolvency or similar
law seeking the dissolution, liquidation or reorganization of Conduit and
such
proceeding or petition shall have not been dismissed.
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Section
13.5 Defaulting Financial
Institutions. If one or more Financial Institutions defaults in its
obligation to pay its Acquisition Amount pursuant to Section 13.1 (each such
Financial Institution shall be called a "Defaulting
Financial Institution"
and the aggregate amount of such defaulted obligations being
herein called the "Conduit
Transfer Price Deficit"),
then upon notice from the Agent, each Financial Institution
other
than the Defaulting Financial Institutions (a "Non-Defaulting
Financial
Institution ") shall promptly pay to the Agent, in immediately
available funds, an amount equal to the lesser of (x) such Non-Defaulting
Financial Institution's proportionate share (based upon the relative Commitments
of the Non-Defaulting Financial Institutions of the Conduit Transfer Price
Deficit and (y) the unused portion of such Non-Defaulting Financial
Institution's Commitment. A Defaulting Financial Institution shall forthwith
upon demand pay to the Agent for the account of the Non-Defaulting Financial
Institutions all amounts paid by each Non-Defaulting Financial Institution
on
behalf of such Defaulting Financial Institution, together with interest thereon,
for each day from the date a payment was made by a Non-Defaulting Financial
Institution until the date such Non-Defaulting Financial Institution has
been
paid such amounts in full, at a rate per annum equal to the Federal Funds
Effective Rate plus two percent (2%). In addition, without prejudice to any
other rights that Conduit may have under applicable law, each Defaulting
Financial Institution shall pay to Conduit forthwith upon demand, the difference
between such Defaulting Financial Institution's unpaid Acquisition Amount
and
the amount paid with respect thereto by the Non-Defaulting Financial
Institutions, together with interest thereon, for each day from the date
of the
Agent's request for such Defaulting Financial Institution's Acquisition Amount
pursuant to Section 13.1 until the date the requisite amount is paid to Conduit
in full, at a rate per annum equal to the Federal Funds Effective Rate plus
two
percent (2%).
Section
13.6 Terminating Financial
Institutions.
(a) Each
Financial Institution hereby agrees to deliver written notice to the Agent
not
more than 30 Business Days and not less than 5 Business Days prior to the
Liquidity Termination Date indicating whether such Financial Institution
intends
to renew its Commitment hereunder. If any Financial Institution fails to
deliver
such notice on or prior to the date that is 5 Business Days prior to the
Liquidity Termination Date, such Financial Institution will be deemed to
have
declined to renew its Commitment (each Financial Institution which has declined
or has been deemed to have declined to renew its Commitment hereunder, a
"Non-Renewing
Financial
Institution').
The
Agent shall promptly notify Conduit of each Non-Renewing Financial Institution
and Conduit, in its sole discretion, may (A) to the extent of Commitment
Availability, declare that such Non-Renewing Financial Institution's Commitment
shall, to such extent, automatically terminate on a date specified by Conduit
on
or before the Liquidity Termination Date or (B) upon one (1) Business Days'
notice to such Non-Renewing Financial Institution assign to such Non-Renewing
Financial Institution on a date specified by Conduit its Pro Rata Share of
the
aggregate Purchaser Interests then held by Conduit, subject to, and in
accordance with, Section 13.1. In addition, Conduit may, in its sole discretion,
at any time (x) to the extent of Commitment Availability, declare that any
Affected Financial Institution's Commitment shall automatically terminate
on a
date specified by Conduit or (y) assign to any Affected Financial Institution
on
a date specified by Conduit its Pro Rata Share of the aggregate Purchaser
Interests
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then
held by Conduit, subject to, and in accordance with, Section
13.1 (each Affected Financial Institution or each Non-Renewing Financial
Institution is hereinafter referred to as a "Terminating
Financial Institution
"). The parties hereto expressly acknowledge that any declaration
of the termination of any Commitment, any assignment pursuant to this Section
13.6 and the order of priority of any such termination or assignment among
Terminating Financial Institutions shall be made by Conduit in its sole and
absolute discretion.
(b) Upon
any assignment to a Terminating Financial Institution as provided in this
Section 13.6, any remaining Commitment of such Terminating Financial Institution
shall automatically terminate. Upon reduction to zero of the Capital of all
of
the Purchaser Interests of a Terminating Financial Institution (after
application of Collections thereto pursuant to Sections 2.2 and 2.3) all
rights
and obligations of such Terminating Financial Institution hereunder shall
be
terminated and such Terminating Financial Institution shall no longer be
a "Financial
Institution"
hereunder; provided, however, that the provisions of Article
X
shall continue in effect for its benefit with respect to Purchaser Interests
held by such Terminating Financial Institution prior to its termination as
a
Financial Institution.
ARTICLE
XIV.
MISCELLANEOUS
Section 14.1 Waivers
and
Amendments.
(a) No
failure or delay on the part of the Agent or
any Purchaser in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such power, right or remedy preclude any other further exercise thereof
or
the exercise of any other power, right or remedy. The rights and remedies
herein
provided shall be cumulative and nonexclusive of any rights or remedies provided
by law. Any waiver of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No provision of
this Agreement may be amended, supplemented, modified or waived except in
writing in accordance with the provisions of this Section 14.1(b). Conduit,
Seller and the Agent, at the direction of the Required Financial Institutions,
may enter into written modifications or waivers of any provisions of this
Agreement, provided, however, that no such modification or waiver shall:
(i) without
the consent of each affected Purchaser, (A) extend the Liquidity Termination
Date or the date of any payment or deposit of Collections by Seller or the
Servicer, (B) reduce the rate or extend the time of payment of Yield or any
CP
Costs (or any component of Yield or CP Costs), (C) reduce any fee payable
to the
Agent for the benefit of the Purchasers, (D) except pursuant to Article XII
hereof, change the amount of the Capital of any Purchaser, any Financial
Institution's Pro Rata Share (except pursuant to Sections 13.1 or 13.5) or
any
Financial Institution's Commitment, (E) amend, modify or waive any provision
of
the definition of Required Financial Institutions or this Section 14.1(b),
(F)
consent to or permit the assignment or transfer by Seller of any of
its
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rights
and obligations under this Agreement, (G) change the
definition of "Eligible
Receivable," "Loss
Reserve," or "Loss
Percentage," or
(H) amend or modify any defined term (or any defined term used directly or
indirectly in such defined term) used in clauses (A) through (G) above in
a
manner that would circumvent the intention of the restrictions set forth
in such
clauses; or
(ii) without
the written consent of the then Agent, amend, modify or waive any provision
of
this Agreement if the effect thereof is to affect in any material respect
the
rights or duties of such Agent.
Notwithstanding
the foregoing, (i) without the consent of the
Financial Institutions, but with the consent of Seller, the Agent may amend
this
Agreement solely to add additional Persons as Financial Institutions hereunder
and (ii) the Agent, the Required Financial Institutions and Conduit may enter
into amendments to modify any of the terms or provisions of Article XI, Article
XII, Article XIII, Section 14.13 or any other provision of this Agreement
without the consent of Seller, provided that such amendment has no negative
impact upon Seller. Any modification or waiver made in accordance with this
Section 14.1 shall apply to each of the Purchasers equally and shall be binding
upon Seller, the Purchasers and the Agent.
Section
14.2 Notices. Except
as
provided in this Section 14.2, all communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth
on
the signature pages hereof or at such other address or telecopy number as
such
Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective
(i)
if given by telecopy, upon the receipt thereof, (ii) if given by mail, three
(3)
Business Days after the time such communication is deposited in the mail
with
first class postage prepaid or (iii) if given by any other means, when received
at the address specified in this Section 14.2. Seller hereby authorizes the
Agent to effect purchases and Tranche Period and Discount Rate selections
based
on telephonic notices made by any Person whom the Agent in good faith believes
to be acting on behalf of Seller. Seller agrees to deliver promptly to the
Agent
a written confirmation of each telephonic notice signed by an authorized
officer
of Seller; provided, however, the absence of such confirmation shall not
affect
the validity of such notice. If the written confirmation differs from the
action
taken by the Agent prior to receipt by the Agent of such written confirmation,
the records of the Agent shall govern absent manifest error.
Section
14.3 Ratable Payments. If
any Purchaser, whether by setoff or otherwise, has payment made to it with
respect to any portion of the Aggregate Unpaids owing to such Purchaser (other
than payments received pursuant to Section 10.2 or 10.3) in a greater proportion
than that received by any other Purchaser entitled to receive a ratable share
of
such Aggregate Unpaids, such Purchaser agrees, promptly upon demand, to purchase
for cash without recourse or warranty a portion of such Aggregate Unpaids
held
by the other Purchasers so that after such purchase each Purchaser will hold
its
ratable proportion of such Aggregate Unpaids; provided that if all or any
portion of such excess amount is thereafter recovered from such Purchaser,
such
purchase shall be rescinded and the purchase price restored to the extent
of
such recovery, but without interest.
E-94
Section
14.4 Protection of
Ownership
Interests of the Purchasers.
(a) Seller agrees
that from time to time, at its expense, it will promptly execute and deliver
all
instruments and documents, and take all actions, that may be necessary, or
that
the Agent may reasonably request, to perfect, protect or more fully evidence
the
Purchaser Interests, or to enable the Agent or the Purchasers to exercise
and
enforce their rights and remedies hereunder. At any time after a Servicer
Termination Event and the transfer of servicing , the Agent may, or the Agent
may direct Seller or the Servicer to, notify the Obligors of Receivables,
at
Seller's expense, of the ownership or security interests of the Purchasers
under
this Agreement and may also direct that payments of all amounts due or that
become due under any or all Receivables be made directly to the Agent or
its
designee. Seller or the Servicer (as applicable) shall, at any Purchaser's
request, withhold the identity of such Purchaser in any such notification.
(b) If any Seller
Party fails to perform any of its obligations hereunder, the Agent or any
Purchaser may (but shall not be required to) perform, or cause performance
of,
such obligations, and the Agent's or such Purchaser's costs and expenses
incurred in connection therewith shall be payable by Seller as provided in
Section 10.3. Each Seller Party irrevocably authorizes the Agent at any time
and
from time to time in the sole discretion of the Agent, and appoints the Agent
as
its attorney-in-fact, to act on behalf of such Seller Party (i) to execute
on
behalf of Seller as debtor and to file financing statements necessary or
desirable in the Agent's sole discretion to perfect and to maintain the
perfection and priority of the interest of the Purchasers in the Receivables
and
(ii) to file a carbon, photographic or other reproduction of this Agreement
or
any financing statement with respect to the Receivables as a financing statement
in such offices as the Agent in its sole discretion deems necessary to perfect
and to maintain the perfection and priority of the interests of the Purchasers
in the Receivables. This appointment is coupled with an interest and is
irrevocable.
Section
14.5 Confidentiality.
(a) Each Seller
Party and each Purchaser shall maintain and shall cause each of its employees
and officers to maintain the confidentiality of this Agreement and the other
confidential or proprietary information with respect to the Agent and Conduit
and their respective businesses obtained by it or them in connection with
the
structuring, negotiating and execution of the transactions contemplated herein,
except that such Seller Party and such Purchaser and its officers and employees
may disclose such information to such Seller Party's and such Purchaser's
external accountants and attorneys and as required by any applicable law
or
order of any judicial or administrative proceeding.
(b) Anything herein
to the contrary notwithstanding, each Seller Party hereby consents to the
disclosure of any nonpublic information with respect to it (i) to the Agent,
the
Financial Institutions or Conduit by each other, (ii) by the Agent or the
Purchasers to any prospective or actual assignee or participant of any of
them,
provided such
assignee or participant agrees to be bound by the confidentiality provisions
contained herein and (iii) by the Agent to any rating agency, Commercial
Paper
dealer or provider of a surety, guaranty or credit or liquidity enhancement
to
Conduit or any entity organized for the purpose of purchasing, or making
loans
secured by, financial assets for which Bank One acts as the administrative
agent
E-95
and
to any officers, directors, employees, outside accountants and
attorneys of any of the foregoing, provided each such
Person referred to in clause (iii) is informed of the confidential nature
of
such information. In addition, the Purchasers and the Agent may disclose
any
such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority
or
proceedings (whether or not having the force or effect of law). The Agent
and
each Purchaser shall use its best efforts to notify the Seller Parties of
any
order or request for any nonpublic information.
(c) Notwithstanding
any other express or implied agreement to the contrary, the parties hereto
agree
that each of them and each of their employees, representatives, and other
agents
may disclose to any and all Persons, without limitation of any kind, the
tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure, except where confidentiality
is reasonably necessary to comply with U.S. federal or state securities laws.
For purposes of this paragraph, the terms "tax treatment" and "tax structure"
have the meanings specified in Treasury Regulation section 1.6011-4(c).
Section
14.6 Bankruptcy Petition.
Each of Seller, the Servicer, the Agent and each Financial Institution hereby
covenants and agrees that, prior to the date that is one year and one day
after
the payment in full of all outstanding senior indebtedness of Conduit, it
will
not institute against, or join any other Person in instituting against, Conduit
or any such entity any bankruptcy, reorganization, arrangement, insolvency
or
liquidation proceedings or other similar proceeding under the laws of the
United
States or any state of the United States.
Section
14.7 Limitation of
Liability. Except with respect to any claim arising out of the willful
misconduct or gross negligence of Conduit, the Agent or any Financial
Institution, no claim may be made by any Seller Party or any other Person
against Conduit, the Agent or any Financial Institution or their respective
Affiliates, directors, officers, employees, attorneys or agents for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to
the
transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and each Seller Party hereby waives,
releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether
or
not accrued and whether or not known or suspected to exist in its favor.
Section
14.8 CHOICE OF LAW. THIS
AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS
(AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
Section
14.9 CONSENT TO
JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING
IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS
AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PARTY PURSUANT TO THIS AGREEMENT
AND
EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION
E-96
IT
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY PURCHASER
TO
BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE AGENT
OR
ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR ANY PURCHASER INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT
TO
THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS OR NEW
YORK, NEW YORK.
Section
14.10 WAIVER OF JURY
TRIAL.
EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH
THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS
AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section
14.11 Integration; Binding
Effect;
Survival of Terms.
(a) This Agreement
and each other Transaction Document contain the final and complete integration
of all prior expressions by the parties hereto with respect to the subject
matter hereof and shall constitute the entire agreement among the parties
hereto
with respect to the subject matter hereof superseding all prior oral or written
understandings.
(b) This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their
respective successors and permitted assigns (including any trustee in
bankruptcy). This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms and shall
remain
in full force and effect until terminated in accordance with its terms;
provided, however, that the rights and remedies with respect to (i) any breach
of any representation and warranty made by any Seller Party pursuant to Article
V, (ii) the indemnification and payment provisions of Article X, and Sections
14.5 and 14.6 shall be continuing and shall survive any termination of this
Agreement.
Section
14.12 Counterparts;
Severability;
Section References. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of
which when so executed shall be deemed to be an original and all of which
when
taken together shall constitute one and the same Agreement. Any provisions
of
this Agreement which are prohibited or unenforceable in any jurisdiction
shall,
as to such jurisdiction, be ineffective to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction. Unless otherwise
expressly indicated, all references herein to "Article,"
"Section," "Schedule"
or "Exhibit"
shall
mean
articles and sections of, and schedules and exhibits to, this
Agreement.
E-97
Section
14.13 Bank One Roles. Each
of the Financial Institutions acknowledges that Bank One acts, or may in
the
future act, (i) as administrative agent for Conduit or any Financial
Institution, (ii) as issuing and paying agent for the Commercial Paper, (iii)
to
provide credit or liquidity enhancement for the timely payment for the
Commercial Paper and (iv) to provide other services from time to time for
Conduit or any Financial Institution (collectively, the "Bank
One Roles").
Without limiting the generality of this Section 14.13, each
Financial Institution hereby acknowledges and consents to any and all Bank
One
Roles and agrees that in connection with any Bank One Role, Bank One may
take,
or refrain from taking, any action that it, in its discretion, deems
appropriate, including, without limitation, in its role as administrative
agent
for Conduit, and the giving of notice to the Agent of a mandatory purchase
pursuant to Section 13.1.
Section
14.14 Characterization.
(a) It is the
intention of the parties hereto that each purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which purchase shall
provide
the applicable Purchaser with the full benefits of ownership of the applicable
Purchaser Interest. Except as specifically provided in this Agreement, each
sale
of a Purchaser Interest hereunder is made without recourse to Seller; provided,
however, that (i) Seller shall be liable to each Purchaser and the Agent
for all
representations, warranties, covenants and indemnities made by Seller pursuant
to the terms of this Agreement, and (ii) such sale does not constitute and
is
not intended to result in an assumption by any Purchaser or the Agent or
any
assignee thereof of any obligation of Seller or Transferor or any other person
arising in connection with the Receivables, the Related Security, or the
related
Contracts, or any other obligations of Seller or Transferor.
(b) In addition to
any ownership interest which the Agent may from time to time acquire pursuant
hereto, Seller hereby grants to the Agent for the ratable benefit of the
Purchasers a valid and perfected security interest in all of Seller's right,
title and interest in, to and under all Receivables now existing or hereafter
arising, the Collections, each Lock-Box, each Lock-Box Account, each Blocked
Account, all Related Security, all other rights and payments relating to
such
Receivables, and all proceeds of any thereof prior to all other liens on
and
security interests therein to secure the prompt and complete payment of the
Aggregate Unpaids. The Agent and the Purchasers shall have, in addition to
the
rights and remedies that they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.
[SIGNATURE
PAGES
FOLLOW]
E-98
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
hereof
TRUCK
RETAIL ACCOUNTS CORPORATION
By:
/s/
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Vice
President
and Treasurer
Address:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
President and Treasurer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
NAVISTAR
FINANCIAL CORPORATION
By:
/s/
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Vice
President
and Treasurer
Address: ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Vice President and Treasurer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
[Signature
Page to the Receivables Purchase Agreement]
E-99
JUPITER
SECURITIZATION CORPORATION
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Authorized
Signatory
Address: c/o
Bank One, NA (Main Office Chicago), as Agent
Asset Backed Finance
Suite IL1-0079, 1-19
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK
ONE, NA (MAIN OFFICE CHICAGO), as a Financial Institution and
as Agent
By:
/s/ ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Director, Capital Markets
Address: Bank One, NA (Main
Office Chicago) Asset Backed Finance
Suite IL1-0596, 1-21
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
[Signature
Page to the Receivables Purchase Agreement]
E-100
EXHIBIT
I
DEFINITIONS
As
used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"A
Receivable"means a
Receivable owing from an Obligor that is a non-direct customer of the Originator
evidenced by a Contract with payment terms based on the date of delivery
of the
subject matter of such Contract.
"Accrual
Period"means
each calendar month, provided that the initial Accrual Period hereunder means
the period from (and including) the date of the initial purchase hereunder
to
(and including) the last day of the calendar month thereafter.
"Acquisition
Amount"means, on the date of any purchase from Conduit of one or
more Purchaser Interests pursuant to Section 13.1, (a) with respect to each
Financial Institution, the lesser of (i) such Financial Institution's Pro
Rata
Share of the sum of (A) the lesser of (1) the Adjusted Liquidity Price of
each
such Purchaser Interest and (2) the Capital of each such Purchaser Interest
and
(B) all accrued and unpaid CP Costs for each such Purchaser Interest and
(ii)
such Financial Institution's unused Commitment.
"Adjusted
Funded Amount"
means, in determining the Conduit Transfer Price for any Purchaser
Interest, an amount equal to the sum of the Adjusted Liquidity Price of each
such Purchaser Interest.
NDR
"Adjusted
Liquidity Price" means an amount equal to: RI [(i) DC
+ (ii) [1+ (.50 x LPF)]]
where:
RI =
the undivided percentage interest
evidenced by such Purchaser Interest.
DC
=
the Deemed Colledtions.
LPF
= Loss Percentage Floor
NDR
= the Outstanding Balance of all Receivables as to which any
payment, or part thereof, has not remained unpaid for 91 days or more from
the
original due date for such payment.
E-101
Each
of the foregoing shall be determined from the most recent
Monthly Report received from the Servicer.
"Adverse
Claim"means a
lien, security interest, charge or encumbrance, or other right or claim in,
of
or on any Person's assets or properties in favor of any other Person.
"Affected
Financial Institution"
has the meaning specified in Section 12.1(c).
"Affiliate"means,
with
respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such Person
or
any Subsidiary of such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the power
to
direct or cause the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or otherwise.
"Agent"has
the meaning
set forth in the preamble to this Agreement.
"Aggregate
Capital"means, on any date of determination, the aggregate amount
of Capital of all Purchaser Interests outstanding on such date.
"Aggregate
Reduction" has the meaning specified in Section 1.3.
"Aggregate
Reserves"means, on any date of determination, (a) the sum of the
Loss Reserve, the Yield Reserve, the Dilution Reserve and the Servicer Reserve
and (b) at any time after a Credit Enhancement Trigger, the greater of (A)
35%
and (B) the amount determined in clause (a) of this definition.
"Aggregate
Unpaids"means, at any time, an amount equal to the sum of all
accrued and unpaid fees under the Fee Letter, CP Costs, Yield, Aggregate
Capital
and all other unpaid Obligations (whether due or accrued) at such time.
"Agreement"
means
this
Receivables Purchase Agreement, as it may be amended or modified and in effect
from time to time.
"Amortization
Date"
means the earliest to occur of (i) the day on which any of
the
conditions precedent set forth in Section 6.2 are not satisfied, (ii) the
Business Day immediately prior to the occurrence of an Amortization Event
set
forth in Section 9.1(d)(ii), (iii) the Business Day specified in a written
notice from the Agent following the occurrence of any other Amortization
Event,
and (iv) the date which is 15 Business Days after the Agent's receipt of
written
notice from Seller that it wishes to terminate the facility evidenced by
this
Agreement.
"Amortization
Event"
has the meaning specified in Article IX.
"Assignment
Agreement"
has the meaning set forth in Section 12.1(b).
"Authorized
Officer"means, with respect to any Person, its chief executive
officer, president, corporate controller, treasurer, chief financial officer,
controller, cash manager, financing manager or treasury reporting
manager.
E-102
"BReceivable"
means
a
Receivable owing from an Obligor that is a direct customer of the Originator
evidenced by a Contract with payment terms based on the date of delivery
of the
subject matter of such Contract.
"Bank
One" means Bank
One, NA (Main Office Chicago) in its individual capacity and its
successors.
"Blocked
Account"
means each depositary account or similar account in which any
proceeds of the Specified NFC Proceeds Account relating to the Receivables
or,
after the delivery of the Collection Notice or segregation notice pursuant
to
Section 8.3, any Lock-Box Account are deposited and which is listed on Exhibit
W.
"Blocked
Account Agreement"
means an agreement in form and substance satisfactory to Agent,
by
and among Transferor, Seller, the Agent and a Blocked Account Bank.
"Blocked
Account Bank"
means, at any time, any of the banks holding one or more Blocked
Accounts.
"Broken
Funding Costs"
means
for any
Purchaser Interest which: (i) has its Capital reduced without compliance
by
Seller with the notice requirements hereunder or (ii) does not become subject
to
an Aggregate Reduction following the delivery of any Reduction Notice or
(iii)
is assigned under Article XIII or terminated prior to the date on which it
was
originally scheduled to end; an amount equal to the excess, if any, of (A)
the
CP Costs or Yield (as applicable) that would have accrued during the remainder
of the Tranche Periods or the tanche periods for Commercial Paper determined
by
the Agent to relate to such Purchaser Interest (as applicable) subsequent
to the
date of such reduction, assignment or termination (or in respect of clause
(ii)
above, the date such Aggregate Reduction was designated to occur pursuant
to the
Reduction Notice) of the Capital of such Purchaser Interest if such reduction,
assignment or termination had not occurred or such Reduction Notice had not
been
delivered, over (B) the sum of (x) to the extent all or a portion of such
Capital is allocated to another Purchaser Interest, the amount of CP Costs
or
Yield actually accrued during the remainder of such period on such Capital
for
the new Purchaser Interest, and (y) to the extent such Capital is not allocated
to another Purchaser Interest, the income, if any, actually received during
the
remainder of such period by the holder of such Purchaser Interest from investing
the portion of such Capital not so allocated. In the event that the amount
referred to in clause (B) exceeds the amount referred to in clause (A), the
relevant Purchaser or Purchasers agree to pay to Seller the amount of such
excess. All Broken Funding Costs shall be due and payable hereunder upon
demand.
"Business
Day" means
any day on which banks are not authorized or required to close in New York,
New
York or Chicago, Illinois and The Depository Trust Company of New York is
open
for business, and, if the applicable Business Day relates to any computation
or
payment to be made with respect to the LIBO Rate, any day on which dealings
in
dollar deposits are carried on in the London interbank market.
"CReceivable"
means
a
Receivable owing from an Obligor that is a direct customer of the Originator
evidenced by a Contract with payment terms based on the factory invoice date
with respect to the subject matter of such Contract.
E-103
"Capital"of
any
Purchaser Interest means, at any time, (A) the Purchase Price of such Purchaser
Interest, minus (B) the sum of the aggregate amount of Collections and other
payments received by the Agent which in each case are applied to reduce such
Capital in accordance with the terms and conditions of this Agreement; provided
that such Capital shall be restored (in accordance with Section 2.5) in the
amount of any Collections or other payments so received and applied if at
any
time the distribution of such Collections or payments are rescinded, returned
or
refunded for any reason.
"Change
of Control"
means the occurrence of one or more of the following events:
(i)
any person or group (within the meaning of the Securities Exchange Act of
1934
(the "Exchange
Act") and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof), other than employee or retiree benefit
plans
or trusts sponsored or established by Transferor or Originator, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of (A) securities of the Parent representing 35%
or more
of the combined voting power of the Parent's then outstanding voting stock,
or
(B) securities of the Transferor representing 50% or more of the combined
voting
power of Transferor's then outstanding voting stock; (ii) the following
individuals cease for any reason to constitute more than three-fourths of
the
number of directors then serving on the Board of Directors of the Parent;
individuals who, on the date hereof, constitute the Board of Directors
and
any new director (other than a director whose initial assumption
of the office is in connection with an actual or threatened election by the
Parent's stockholders was approved by the vote of a majority of the directors
then still in office or whose appointment, election or nomination was previously
so approved or recommended; (iii) the stockholders of the Parent shall approve
any Plan of Liquidation; (iv) Transferor consolidates with or merges with
or
into another Person, or Transferor or any Subsidiary of Transferor, directly
or
indirectly, sells, assigns, conveys, transfers, leases or otherwise disposes
of,
in one transaction or series of related transactions, all or substantially
all
of the property or assets of the Transferor and the Subsidiaries of Transferor
(determined on a consolidated basis) to any Person, or Person consolidates
with,
or merges with or into, Transferor, in any such event pursuant to a transaction
in which the outstanding voting stock of Transferor is converted into or
exchanges for cash, securities or other property, and, as a result of which,
neither the Parent nor Originator has "beneficial ownership" (as set forth
above), directly or indirectly, of at least 50% of the combined voting power
of
the then outstanding voting stock of the surviving or transferee corporation;
(v) so long as any Indebtedness under the Senior Subordinated Note Indenture
(as
defined in the Transferor Credit Agreement) is outstanding, a "Change of
Control" as defined in the Senior Subordinated Note Indenture shall occur;
or
(vi) the Transfer shall cease to own directly or indirectly 100% of the
outstanding voting stock of the Seller.
"Charged-Off
Receivable"
means a Receivable: (i) as to which the Obligor thereof has
taken
any action, or suffered any event to occur, of the type described in Section
9.1(d) (as if references to Seller Party therein refer to such Obligor);
(ii) as
to which the Obligor thereof, if a natural person, is deceased, (iii) which,
consistent with the Credit and Collection Policy, would be written off Seller's
books as uncollectible, or (iv) which has been identified by Seller as
uncollectible.
"Collection
Notice"
means a notice, in substantially the form of Annex A to Exhibit
VI, from the Agent to a Lock-Box Bank.
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"Collections"
means,
with respect to any Receivable, all cash collections and other cash proceeds
in
respect of such Receivable, including, without limitation, all yield, Finance
Charges or other related amounts accruing in respect thereof and all cash
proceeds of Related Security with respect to such Receivable.
"Commercial
Paper"
means promissory notes of Conduit issued by Conduit in the
commercial paper market.
"Commitment"
means,
for each Financial Institution, the commitment of such Financial Institution
to
purchase Purchaser Interests from (i) Seller and (ii) Conduit, in an amount
not
to exceed (i) in the aggregate, the amount set forth opposite such Financial
Institution's name on Schedule A to this Agreement, as such amount may be
modified in accordance with the terms hereof (including, without limitation,
any
termination of Commitments pursuant to Section 13.6 hereof) and (ii) with
respect to any individual purchase hereunder, its Pro Rata Share of the Purchase
Price therefor.
"Commitment
Availability"
means at any time the positive difference (if any) between
(a) an
amount equal to the aggregate amount of the Commitments at such time minus
(b)
the Aggregate Capital at such time.
"Concentration
Limit"
means, at any time, for any Obligor, 33.33% of the Loss Reserve,
or such other amount (a
"Special
Concentration Limit")
for such Obligor designated by the Agent; provided, that in
the
case of an Obligor and any Affiliate of such Obligor, the Concentration Limit
shall be calculated as if such Obligor and such Affiliate are one Obligor;
and
provided, further, that Conduit or the Required Financial Institutions may,
upon
notice to Seller, cancel any Special Concentration Limit; provided,
however,
that such Special Concentration Limit shall remain in place
until
the first Weekly Settlement Date following the fifteenth (15th) Business Day
following
the delivery of such notice. As of the date hereto, until notice from the
Agent
to the contrary in accordance with the proceeding sentence, the following
Special Concentration Limits, as amended with the Agent's consent in the
Weekly
Report, shall be in effect: (i) Walmart Leasing, and Affiliates 90.0%; (ii)
Anheuser ▇▇▇▇, Inc., and Affiliates 90.0%; (iii) Safeway Stores, 50.0%; (iv)
▇▇▇▇ ▇▇▇, and Affiliates 50.0%; (v) PHH/Ameri Gas and Affiliates (Supported
by
Cendant), 50.0%; (vi) Budget Truck and Affiliates, 50.0%, (vii) Ryder Truck
Rental and Affiliates, 50.0%, and (viii) ) ▇▇▇▇▇▇▇, Inc. and Affiliates,
25.0%;
provided,
however, at
no time shall the aggregate Outstanding Balance of Eligible Receivables owing
from the Obligors listed in clause (v) and (vi) above exceed 90% of the Loss
Reserve.
"Conduit"
has
the
meaning set forth in the preamble to this Agreement. "Conduit
Residual"
means the sum of the Conduit Transfer Price Reductions.
"Conduit
Transfer Price"
means, with respect to the assignment by Conduit of one or
more
Purchaser Interests to the Agent for the benefit of one or more of the Financial
Institutions pursuant to Section 13.1, the sum of (i) the lesser of (a) the
Capital of each such Purchaser Interest and (b) the Adjusted Funded Amount
of
each such Purchaser Interest and (ii) all accrued and unpaid CP Costs for
each
such Purchaser Interest.
"Conduit
Transfer Price Deficit"
has the meaning set forth in Section 13.5. 50
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"Conduit
Transfer Price Reduction"
means in connection with the assignment of a Purchaser Interest
by
Conduit to the Agent for the benefit of the Financial Institutions, the positive
difference (if any) between (i) the Capital of such Purchaser Interest and
(ii)
the Adjusted Funded Amount for such Purchaser Interest.
"Contingent
Obligation"
of a Person means any agreement, undertaking or arrangement
by
which such Person assumes, guarantees, endorses, contingently agrees to purchase
or provide funds for the payment of, or otherwise becomes or is contingently
liable upon, the obligation or liability of any other Person, or agrees to
maintain the net worth or working capital or other financial condition of
any
other Person, or otherwise assures any creditor of such other Person against
loss, including, without limitation, any comfort letter, operating agreement,
take-or-pay contract or application for a letter of credit.
"Contract"
means,
with
respect to any Receivable, any and all instruments, agreements, invoices
or
other writings pursuant to which such Receivable arises or which evidences
such
Receivable in each case, only to the extent such writing relates to such
Receivable (it being understood that any portion of such writing not relating
to
a Receivable or relating to a receivable that has not been transferred pursuant
to the terms of this Agreement shall not be included in the term Contract,
and
if any writing shall have portions that are both included in and excluded
from
the term Contract, both parties having rights in such writing shall be granted
reasonable access to such writing as shall be necessary or reasonably desirable
to enforce its rights with respect thereto).
"CP
Costs"means, for
each day, the sum of (i) discount or yield accrued on Pooled Commercial Paper
on
such day, plus (ii) any and all accrued commissions in respect of placement
agents and Commercial Paper dealers, and issuing and paying agent fees incurred,
in respect of such Pooled Commercial Paper for such day, plus (iii) other
costs
associated with funding small or odd-lot amounts with respect to all receivable
purchase facilities which are funded by Pooled Commercial Paper for such
day,
minus (iv) any accrual of income net of expenses received on such day from
investment of collections received under all receivable purchase facilities
funded substantially with Pooled Commercial Paper, minus (v) any payment
received on such day net of expenses in respect of Broken Funding Costs related
to the prepayment of any purchaser interest of Conduit pursuant to the terms
of
any receivable purchase facilities funded substantially with Pooled Commercial
Paper. In addition to the foregoing costs, if Seller shall request any
Incremental Purchase during any period of time determined by the Agent in
its
sole discretion to result in incrementally higher CP Costs applicable to
such
Incremental Purchase, the Capital associated with any such Incremental Purchase
shall, during such period, be deemed to be funded by Conduit in a special
pool
(which may include capital associated with other receivable purchase facilities)
for purposes of determining such additional CP Costs applicable only to such
special pool and charged each day during such period against such Capital.
"Credit
and Collection
Policy"means
Seller's
credit and collection policies and practices relating to Contracts and
Receivables existing on the date hereof and attached as Exhibit VIII hereto,
as
modified from time to time in accordance with this Agreement.
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"Credit
Enhancement Trigger"
means a downgrade of the Parent below (i) Ba3 by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's) and BB- by Standard & Poor's Ratings Service
("Standard & Poor's") or (ii) B1 by Moody's or (iii) B+ by Standard &
Poor's .
"DeemedCollections"
means
the
aggregate of all amounts Seller shall have been deemed to have received as
a
Collection of a Receivable. Seller shall be deemed to have received a Collection
of a Receivable to the extent of such reduction or cancellation if at any
time
(i) the Outstanding Balance of any such Receivable is either (x) reduced
as a
result of any defective or rejected goods or services, any discount or any
adjustment or otherwise by Seller (other than cash Collections on account
of the
Receivables) or (y) reduced or canceled as a result of a setoff in respect
of
any claim by any Person (whether such claim arises out of the same or a related
transaction or an unrelated transaction) or (ii) any of the representations
or
warranties in Article V are no longer true with respect to any Receivable.
"Default
Fee"means with
respect to any amount due and payable by Seller in respect of any Aggregate
Unpaids, an amount equal to the interest on any such unpaid Aggregate Unpaids
at
a rate per annum equal to 2% above the Prime Rate.
"Default
Ratio"means,
for any calendar month, an amount (expressed as a percentage) equal to (i)
the
sum of (A) the aggregate Outstanding Balance of all Receivables that were
unpaid
for more than 90 days after the due date of such invoice, but less than 121
days
after the due date of such invoice as of the last day of such calendar month
and
(B) the aggregate Outstanding Balance of all Receivables that became Charged-Off
Receivables prior to becoming 91 days past due during such calendar month
divided by (ii) the aggregate gross sales with respect to the Receivables
of the
Originator during the calendar month four calendar months prior to such calendar
month.
"Default
Trigger Ratio"
means, for any calendar month, an amount (expressed as a
percentage) equal to (i) the sum of (A) the aggregate Outstanding Balance
of all
Receivables that were unpaid for more than 90 days after the due date of
such
invoice, but less than 121 days after the due date of such invoice as of
the
last day of such calendar month and (B) the aggregate Outstanding Balance
of all
Receivables that became Charged-Off Receivables prior to becoming 61 days
past
due during such calendar month divided by (ii) the Outstanding Balance of
all
Receivables as of the end of such calendar month, in the case of clause (i)(A),
as reflected on the DFO Master Aging Report at such time.
"Defaulting
Financial Institution"
has the meaning set forth in Section 13.5.
"Delinquency
Ratio"
means, at any time, a percentage equal to (i) the aggregate
Outstanding Balance of all Receivables that were more than 60 days but less
than
91 days past due, as reflected on the DFO Master Aging Report at such time
divided by (ii) the aggregate Outstanding Balance of all Receivables as
reflected on the DFO Master Aging Report at such time.
"Delinquent
Receivable"
means a Receivable as to which any payment, or part thereof,
remains unpaid for (i) with respect to A Receivables and B Receivables, 61
days
or more
E-107
from
the original due date for such payment and (ii) respect to C
Receivables, 91 days or more from the original factory invoice date for such
payment.
"Designated
Obligor"
means an Obligor indicated by the Agent, using its reasonable
credit judgment to Seller in writing; provided,
however,
such designations shall not be effective until the first Weekly
Settlement Date occurring the fifteenth (15t) Business Day
following
the delivery of such notice.
"Dilution
Horizon Ratio"
means, as of the last day of any calendar month, a percentage
equal to (i) the aggregate gross sales of the Originator with respect to
the
Receivables for such calendar month divided by (ii) Outstanding Balance of
all
Eligible Receivables as of the last day of such calendar month.
"Dilution
Ratio"
means, a percentage equal to (i) the aggregate amount of Dilutions
which occurred during the calendar month then most recently ended, divided
by
(ii) the aggregate gross sales of the Originator with respect to the Receivables
during the calendar month one calendar month prior to such calendar month,
calculated on a monthly basis.
"Dilution
Reserve"
means, on any date, an amount equal to (i) the greater of (a)
the
Dilution Reserve Percentage or (b) 5%, multiplied by (ii) the Outstanding
Balance of all Net Receivables Balance as of the close of business of the
Servicer on such date.
"Dilution
Reserve
Percentage"
(ii) [[2.0
x ED] + [(DS - ED) x DS ] x
DHR
ED
where:
ED
= the Expected Dilution Ratio at such time
DS = the
Dilution Spike Ratio at such time
DHR = the
Dilution Horizon Ratio at such time
"Dilution
Spike Ratio"
means, as of the last day of any calendar month, the highest
3-month rolling average Dilution Ratio, calculated as of the last day of
each of
the twelve calendar months then most recently ended.
"Dilutions"
means,
at
any time, the aggregate amount of reductions or cancellations described in
clause (i) of the definition of "Deemed Collections".
"Discount
Rate" means,
the LIBO Rate or the Prime Rate, as applicable, with respect to each Purchaser
Interest of the Financial Institutions.
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"Eligible
Receivable"
means,
at
any time, a Receivable:
(i) the Obligor of
which (a) if a natural person, is a resident of the United States or, if
a
corporation or other business organization, is organized under the laws of
the
United States or any political subdivision thereof and has its chief executive
office in the United States; (b) is not an Affiliate of any of the parties
hereto; and (c) is not a Designated Obligor;
(ii) the Obligor of
which (A) is not the Obligor of any Charged-Off Receivable or (B) not an
Obligor
of Receivables of which more than 30% of the aggregate unpaid balance of
all
Receivables owing from such Obligor are Delinquent Receivables;
(iii) which is not
a Charged-Off Receivable or a Delinquent Receivable;
(iv) which by its
terms is due and payable within 90 days of the original billing date therefor
and has not had its payment terms extended;
(v) which is an
"account" or "chattel paper" or "payment intangible" within the meaning of
Article 9 of the UCC of all applicable jurisdictions;
(vi) which is
denominated and payable only in United States dollars in the United
States;
(vii) which arises
under a Contract in substantially the form of one of the form contracts set
forth on Exhibit IX hereto or otherwise approved by the Agent in writing,
which,
together with such Receivable, is in full force and effect and constitutes
the
legal, valid and binding obligation of the related Obligor enforceable against
such Obligor in accordance with its terms subject to no offset, counterclaim
or
other defense;
(viii) which arises
under a Contract which does not contain a confidentiality provision that
purports to restrict the ability of any Purchaser to exercise its rights
under
this Agreement, including, without limitation, its right to review the
Contract;
(ix) which arises
under a Contract that contains an obligation to pay a specified sum of money,
contingent only upon the sale of goods or the provision of services by
Parent;
(x) which, together
with the Contract related thereto, does not contravene any law, rule or
regulation applicable thereto (including, without limitation, any law, rule
and
regulation relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and privacy)
and with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation;
(xi) which
satisfies all applicable requirements of the Credit and Collection
Policy;
(xii)
which was generated in the ordinary course of Parent's business;
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(xiii) which arises
solely from the sale of goods or the provision of services to the related
Obligor by Parent, and not by any other Person (in whole or in part);
(xiv) as to which
the Agent has not notified Seller that the Agent has determined that the
class
of Receivables for
which such Receivable is a part is not acceptable as an Eligible Receivable;
provided,
however,
that such Receivable shall not be deemed ineligible due to
this
clause (xiv) until the first Weekly Settlement Date following the fifteenth
(15th) Business Day
following the delivery of
such notice;
(xv) which is not
subject to any right of
rescission, set-off,
counterclaim, any other defense (including defenses
arising out of
violations of
usury laws) (any such right referred to herein as a "Setoff
Right")of the
applicable Obligor against Parent or any other Adverse Claim, and the Obligor
thereon holds no right as against Parent to cause Parent to repurchase the
goods
or merchandise the sale of which shall have given rise to such Receivable
(except with respect to sale discounts effected pursuant to the Contract,
or
defective goods returned in accordance with the terms of the Contract); provided,
however, any
Receivable subject to a Setoff Right will be included as an Eligible Receivable
provided,
that
the
aggregate of the Net Obligor Setoff Amounts for all Obligors does not exceed
$500,000, and if the aggregate of the Net Obligor Setoff Amounts exceeds
$500,000, the Receivables of each Obligor that are subject to a Setoff Right
shall be included as Eligible Receivables but the aggregate amount of such
Receivables shall be reduced by the Net Obligor Setoff Amount for such
Obligor;
(xvi) as to which
Originator has satisfied and fully performed all obligations on its part
with
respect to such Receivable required to be fulfilled by it, and no further
action
is required to be performed by any Person with respect thereto other than
payment thereon by the applicable Obligor;
(xvii) all right,
title and interest to and in which has been validly transferred by Parent
directly to Seller under and in accordance with the Receivables Sale Agreement,
and Seller has good and marketable title thereto free and clear of any Adverse
Claim;
(xviii) which is a
Government Receivable to the extent the total amount of all Government
Receivables for which the U.S. federal government is the Obligor included
in the
calculation of Net Receivables Balance, at any time, is no greater than 5%
of
all Receivables;
(xix) with respect
to any A Receivable, delivery has been made to the applicable Obligor and
payment, or part thereof, remains unpaid for not more than 60 days after
the
original due date for such payment;
(xx) with respect
to any B Receivable, whether or not delivery has been made to the applicable
Obligor, payment, or part thereof, remains unpaid for not more than 60 days
after the original due date for such payment; provided,
however, (A)
if delivery has been made to the applicable Obligor, no more than 90% of
the
aggregate Outstanding Balance of such Receivables shall be included as Eligible
Receivables and (B) if delivery has not been made to
E-110
the
applicable Obligor, no more than 65% of the Outstanding
Balance of such Receivables shall be included as Eligible Receivables; and
(xxi)
with respect to any C Receivable, whether or not delivery has
been made to the applicable Obligor, payment, or part thereof, remains unpaid
for not more than 90 days after the original factory invoice date for such
payment; provided,
however,
with respect to such Receivables to the extent payment, or
part
thereof, remains unpaid for no more than 30 days after the original factory
invoice date, no more than 75% of the aggregate Outstanding Balance of such
Receivables shall be included as Eligible Receivables.
"ERISA"means
the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
"Expected
Dilution Ratio"
means, as of the last day of any calendar month, the average
Dilution Ratio in respect of the twelve calendar months then most recently
ended.
"Facility
Account"means
Account No. ▇▇▇-▇-▇▇▇▇▇ at JPMorgan Chase Bank.
"Facility
Termination Date"
means the earliest of (i) April 7, 2005, or such later date
as
mutually agreed to by the parties hereto, (ii) the Liquidity Termination
Date
and (iii) the Amortization Date.
"Federal
Bankruptcy Code"
means Title 11 of the United States Code entitled "Bankruptcy,"
as
amended and any successor statute thereto.
"Federal
Funds Effective Rate"
means, for any period, a fluctuating interest rate per annum
for
each day during such period equal to (a) the weighted average of the rates
on
overnight federal funds transactions with members of the Federal Reserve
System
arranged by federal funds brokers, as published for such day (or, if such
day is
not a Business Day, for the preceding Business Day) by the Federal Reserve
Bank
of New York in the Composite Closing Quotations for U.S. Government Securities;
or (b) if such rate is not so published for any day which is a Business Day,
the
average of the quotations at approximately 10:30 a.m. (Chicago time) for
such
day on such transactions received by the Agent from three federal funds brokers
of recognized standing selected by it.
"Fee
Letter"means that
certain letter agreement dated as of the date hereof among Seller, Transferor
and the Agent, as it may be amended or modified and in effect from time to
time.
"Finance
Charges"means,
with respect to a Contract, any finance, interest, late payment charges or
similar charges owing by an Obligor pursuant to such Contract.
"Financial
Institutions"
has the meaning set forth in the preamble in this Agreement.
"Funding
Agreement"
means this Agreement and any agreement or instrument executed
by
any Funding Source with or for the benefit of Conduit.
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"Funding
Source" means
(i) any Financial Institution or (ii) any insurance company, bank or other
funding entity providing liquidity, credit enhancement or back-up purchase
support or facilities to Conduit.
"GAAP"means
generally
accepted accounting principles in effect in the United States of America
as of
the date of this Agreement.
"Government
Receivables"
means any Receivable as to which the Obligor is a government
or a
governmental subdivision or agency.
"Governmental
Authority"
means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and
any
agency, authority, instrumentality, regulatory body, court, central bank
or
other entity exercising executive, legislative, judicial, taxing, regulatory
or
administrative powers or functions of or pertaining to government.
"Incremental
Purchase"
means a purchase of one or more Purchaser Interests which
increases the total outstanding Aggregate Capital hereunder.
"Indebtedness"
of
a
Person means such
Person's (i) obligations for borrowed money, (ii) obligations representing
the
deferred purchase price of property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured
by
liens or payable out of
the proceeds or
production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) capitalized lease obligations, (vi)
net
liabilities under interest rate swap, exchange or cap agreements, (vii)
Contingent Obligations and (viii) liabilities in respect of unfunded vested
benefits
under plans covered by Title IV of ERISA.
"Independent
Director"
shall mean a member of the Board of Directors of Seller who
is not
at such time, and has not been at any time during the preceding five (5)
years,
(A) a director, officer, employee or affiliate of Seller, Parent, Transferor,
or
any of their respective Subsidiaries or Affiliates, or (B) the beneficial
owner
(at the time of such individual's appointment as an Independent Director
or at
any time thereafter while serving as an Independent Director) of more than
0.5%
of the outstanding common shares of Seller, Parent, Transferor, or any of
their
respective Subsidiaries or Affiliates, having general voting rights;
"LIBO
Rate" means the
rate per annum equal to the sum of (i) (a) the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars appearing
on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior
to
the first day of the relevant Tranche Period, and having a maturity equal
to
such Tranche Period, provided that,
(i ) if Reuters
Screen FRBD is not available to the Agent for any reason, the applicable
LIBO
Rate for the relevant Tranche Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S. dollars
as
reported by any other generally recognized financial information service
as
of 11:00 a.m. (London
time) two Business Days prior to the first day of such Tranche Period,
and
having a maturity equal to such Tranche Period, and
(ii) if
no
such British Bankers'
Association Interest Settlement Rate is available to the Agent, the
E-112
applicable
LIBO Rate for the relevant Tranche Period shall instead
be the rate determined by the Agent to be the rate at which Bank One offers
to
place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior
to the
first day of such Tranche Period, in the approximate amount to be funded
at the
LIBO Rate and having a maturity equal to such Tranche Period, divided by
(b) one
minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Agent
in
respect of Eurocurrency liabilities, as defined in Regulation D of the Board
of
Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Tranche Period plus (ii) the
sum of
(A) 0.25% per annum plus (B) the "Applicable Rate" from time to time in effect
for the "Eurodollar Revolving Loans" under the Transferor's Credit Agreement.
The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of
1%.
"Liquidity
Termination Date"
means 364 days after the closing date.
"Lock-Box"
means
each
locked postal box with respect to which a bank who has executed a Lock-Box
Account Agreement has been granted exclusive access for the purpose of
retrieving and processing payments made on the Receivables and which is listed
on Exhibit W.
"Lock-Box
Bank" mean,
at any time, any of the banks holding one or more Lock-Box Accounts.
"Lock-Box
Account"
means each deposit account, lock-box account or similar account
into which proceeds of a Lock-Box are collected or deposited and which is
listed
on Exhibit W.
"Lock-Box
Account Agreement"
means an agreement substantially in the form of Exhibit VI
among
Transferor, the Agent and a Lock-Box Bank.
"Loss
Horizon Ratio"
means as of any date, an amount (expressed as a percentage)
equal
to (i) the aggregate gross sales of the Parent with respect to the Receivables
during the three most recently ended calendar months divided by (ii) Outstanding
Balance of all Eligible Receivables as of the last day of the most recently
ended calendar month.
"Loss
Percentage"
means, at any time, a percentage equal to the greater of (i)
2.00
multiplied by the Loss Ratio multiplied by the Loss Horizon Ratio or (ii)
the
Loss Percentage Floor.
"Loss
Percentage Floor"
means a percentage equal to 20%.
"Loss
Ratio" means, on
any date, the greatest three-calendar month rolling average Default Ratio
as
calculated for each of the twelve most recently ended calendar months.
"Loss
Reserve"means, on
any date, an amount equal to the Loss Percentage multiplied by the Net
Receivables Balance as of the close of business of the Servicer on such
date.
E-113
"Material
Adverse Effect"
means a material adverse effect on (i) the financial condition
or
operations of any Seller Party and its Subsidiaries, taken as a whole, (ii)
the
ability of any Seller Party to perform its obligations under this Agreement,
(iii) the legality, validity or enforceability of this Agreement or any other
Transaction Document, (iv) any Purchaser's interest in the Receivables generally
or in any significant portion of the Receivables, the Related Security or
the
Collections with respect thereto, or (v) the collectibility of the Receivables
generally or of any material portion of the Receivables.
"Material
Indebtedness"
means Indebtedness or obligations in an aggregate principal
amount
exceeding $10,000,000.
"Monthly
Report"means a
report, in substantially the form of Exhibit X hereto (appropriately completed),
furnished by the Servicer to the Agent pursuant to Section 8.5.
"Monthly
Settlement Date"
means (A) the 15`h
day of each month or, if
such day is not a Business Day, the first Business Day thereafter (beginning
May
17, 2004), and (B) the last day of the relevant Tranche Period in respect
of
each Purchaser Interest of the Financial Institutions.
"Navistar"has
the
meaning set forth in the preamble to this Agreement.
"Net
Obligor Setoff Amount"
means, for any Obligor and for any Accrual Period, the lesser
of
(a) the aggregate Outstanding Balance of all Eligible Receivables of such
Obligor and (b) an amount, not less than zero, equal to (i) the dollar amount
of
the Setoff Right (as defined in clause (xv) of the definition of "Eligible
Receivable")
the applicable Obligor may have against Parent minus (ii) the
amount, if any, by which the Outstanding Balance of all Eligible Receivables
owing from the applicable Obligor exceeds the Concentration Limit or Special
Concentration Limit, as applicable, with respect to such Obligor.
"Net
Receivables Balance"
means, at any time, the aggregate Outstanding Balance of all
Eligible Receivables at such time reduced by the aggregate amount by which
the
Outstanding Balance of all Eligible Receivables of each Obligor and its
Affiliates exceeds the Concentration Limit for such Obligor.
"Non-Defaulting
Financial
Institution" has the meaning set forth in Section
13.5.
"Non-Renewing
Financial Institution"
has the meaning set forth in Section
13.6(a).
"Obligations"
shall
have the meaning set forth in Section 2.1.
"Obligor"
means
a
Person obligated to make payments pursuant to a Contract. "Originator"
means
International Truck and Engine Corporation, a Delaware corporation and its
successors.59
E-114
"Outstanding
Balance"
of any Receivable at any time means the then outstanding principal
balance thereof.
"Parent"
means
Navistar International Corporation, a Delaware corporation, and its
successors.
"Participant"
has
the
meaning set forth in Section 12.2.
"Person"
means
an
individual,
partnership, corporation (including a business trust), limited liability
company, joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency
thereof.
"Pooled
Commercial Paper"
means Commercial Paper notes of Conduit subject to any particular
pooling arrangement by Conduit, but excluding Commercial Paper issued by
Conduit
for a tenor and in an amount specifically requested by any Person in connection
with any agreement effected by Conduit.
"Potential
Amortization Event"
means an event which, with the passage of time or the giving
of
notice, or both, would constitute an Amortization Event.
"Prime
Rate" means a
rate per annum equal to the prime rate of interest announced from time to
time
by Bank One or its parent (which is not necessarily the lowest rate charged
to
any customer), changing when and as said prime rate changes
"Pro
Rata Share"
means, for each Financial Institution, a percentage equal to
(i)
the Commitment of such Financial Institution, divided by (ii) the aggregate
amount of all Commitments of all Financial Institutions hereunder, adjusted
as
necessary to give effect to the application of the terms of Sections 13.5
or
13.6.
"Proposed
Reduction Date"
has the meaning set forth in Section 1.3.
"Purchase
Limit" means
$100,000,000.
"Purchase
Notice" has
the meaning set forth in Section 1.2.
"Purchase
Price"
means,
with respect to
any Incremental Purchase of a Purchaser Interest, the amount paid to Seller
for
such Purchaser Interest which shall not exceed the least of (i) the amount
requested by Seller in the applicable Purchase Notice, (ii) the unused portion
of the Purchase Limit on the applicable purchase date and (iii) the excess,
if
any, of the Net Receivables Balance (less the Aggregate Reserves) on the
applicable purchase date over the aggregate outstanding amount of Aggregate
Capital determined as of the date of the most recent Monthly Report, without
taking into account such proposed Incremental Purchase.
"Purchasers"
means
Conduit and each Financial Institution.
"Purchaser
Interest"
means, at any time, an undivided percentage ownership interest
(computed as set forth below) associated with a designated amount of Capital,
selected pursuant to the terms and conditions hereof in (i) each Receivable
arising prior to the time of the
E-115
most
recent computation or recomputation of such undivided interest,
(ii) all Related Security with respect to each such Receivable, and (iii)
all
Collections with respect to, and other proceeds of, each such Receivable.
Each
such undivided percentage interest shall equal:
C
NRB
- AR
where:
C =
the Capital of
such Purchaser Interest.
AR
=
the Aggregate Reserves.
NRB =
the Net Receivables Balance.
Such
undivided percentage ownership interest shall be initially
computed on its date of purchase. Thereafter, until the Amortization Date,
each
Purchaser Interest shall be automatically recomputed (or deemed to be
recomputed) on each day prior to the Amortization Date. The variable percentage
represented by any Purchaser Interest as computed (or deemed recomputed)
as of
the close of the business day immediately preceding the Amortization Date
shall
remain constant at all times thereafter.
"Purchasing
Financial Institution"
has the meaning set forth in Section 12.1(b).
"Receivable"means
all
indebtedness and other obligations owed to Originator or Transferor (at the
time
it arises, and before giving effect to any transfer or conveyance under the
Receivables Sale Agreement or hereunder but only to the extent it is transferred
under the Receivables Sale Agreement) or in which Seller or Transferor has
a
security interest or other interest, including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible, arising in connection with the sale of
goods
or the rendering of services by Originator, and further includes, without
limitation, the obligation to pay any Finance Charges with respect thereto.
Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations
represented by an individual invoice, shall constitute a Receivable separate
from a Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; provided further, that any
indebtedness, rights or obligations referred to in the immediately preceding
sentence shall be a Receivable regardless of whether the account debtor or
Seller treats such indebtedness, rights or obligations as a separate payment
obligation.
"Receivables
Sale Agreement"
means that certain Receivables Sale Agreement, dated as of
April
8, 2004, between Transferor and Seller, as the same may be amended, restated
or
otherwise modified from time to time.
"Records"means,
with
respect to any Receivable, all Contracts and other documents, books, records
and
other information (including, without limitation, computer
E-116
programs,
tapes, disks, punch cards, data processing software and
related property and rights) relating to such Receivable, any Related Security
therefor and the related Obligor.
"Reduction
Notice" has
the meaning set forth in Section 1.3.
"Reduction
Percentage"
means, for any Purchaser Interest acquired by the Financial
Institutions from Conduit for less than the Capital of such Purchaser Interest,
a percentage equal to a fraction the numerator of which is the Conduit Transfer
Price Reduction for such Purchaser Interest and the denominator of which
is the
Capital of such Purchaser Interest.
"Regulatory
Change"
has the meaning set forth in Section 10.2(a).
"Reinvestment"
has
the
meaning set forth in Section 2.2.
"Related
Security"
means, with respect to any Receivable, if any:
(i) all of Seller's
interest in the inventory and goods (including returned or repossessed inventory
or goods), if any, the sale, financing or lease of which by Transferor or
Originator, as applicable, gave rise to such Receivable, and all insurance
contracts with respect thereto,
(ii) all other
security interests or liens and property subject thereto from time to time,
if
any, purporting to secure payment of such Receivable, whether pursuant to
the
Contract related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing such
Receivable,
(iii) all
guaranties, letters of credit, insurance and other agreements or arrangements
of
whatever character from time to time supporting or securing payment of such
Receivable whether pursuant to the Contract related to such Receivable or
otherwise,
(iv) all service
contracts and other contracts and agreements associated with such
Receivable,
(v) all Records related
to such Receivable,
(vi ) all of
Seller's right, title and interest in, to and under the Receivables Sale
Agreement in respect of such Receivable, and
(vii) all
proceeds of any of the foregoing.
"Required
Financial Institutions"
means, at any time, Financial Institutions with Commitments
in
excess of 66-2/3% of the Purchase Limit.
"Required
Notice Period"
means two Business Days.
"Responsible
Agent Party"
means any asset backed senior credit officer of the
Agent.
E-117
"Restricted
Junior Payment"
means (i ) any dividend or other distribution, direct or indirect,
on account of any shares of any class of capital stock of Seller now or
hereafter outstanding, except a dividend payable solely in shares of that
class
of stock or in any junior class of stock of Seller, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition
for
value, direct or indirect, of any shares of any class of capital stock of
Seller
now or hereafter outstanding, (iii) any payment or prepayment of principal
of,
premium, if any, or interest, fees or other charges on or with respect to,
and
any redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to the Subordinated Loans
(as
defined in the Receivables Sale Agreement), (iv) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of capital
stock of Seller now or hereafter outstanding, and (v) any payment of management
fees by Seller (except for reasonable management fees to the Transferor or
its
Affiliates in reimbursement of actual management services performed).
"Seller"has
the meaning
set forth in the preamble to this Agreement.
"Seller
Parties" has
the meaning set forth in the preamble to this Agreement.
"Servicer"
means
at
any time the Person (which may be the Agent) then authorized pursuant to
Article
VIII to service, administer and collect Receivables.
"Servicer
Reserve"means, on any date, an amount equal to 1% multiplied by
the Outstanding Balance of all Eligible Receivables as of the close of business
of the Servicer on such date.
"Servicing
Fee"has the
meaning set forth in Section 8.6.
"Servicer
Termination Event"
means an Amortization Event described in Section 9.1(a),(b),(c)
or
(d) with respect to the Servicer.
"Settlement
Period"
means (A) in respect of each Purchaser Interest of Conduit,
the
immediately preceding Accrual Period, and (B) in respect of each Purchaser
Interest of the Financial Institutions, the entire Tranche Period of such
Purchaser Interest.
"Specified
NFC Allocation Account"
means account No. ▇▇▇-▇-▇▇▇▇▇ at JPMorgan Chase Bank, 4 New
York
Plaza, 6th Floor, New York, New York 10004 (ABA No: ▇▇▇▇▇▇▇▇▇) or such other
account specified by the Seller Parties in a notice to the Agent.
"Subsidiary"of
a Person
means (i) any corporation more than 50% of the outstanding securities having
ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries
or
by such Person and one or more of its Subsidiaries, or (ii) any partnership,
association, limited liability company, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of Seller.
E-118
"Termination
Date" has
the meaning set forth in Section 2.2.
"Termination
Percentage"
has the meaning set forth in Section 2.2.
"Terminating
Financial Institution"
has the meaning set forth in Section 13.6(a).
"Terminating
Tranche"
has the meaning set forth in Section 4.3(b).
"Tranche
Period" means,
with respect to any Purchaser Interest held by a Financial Institution:
(a) if Yield for
such Purchaser Interest is calculated on the basis of the LIBO Rate, a period
of
one, two, three or six months, or such other period as may be mutually agreeable
to the Agent and Seller, commencing on a Business Day selected by Seller
or the
Agent pursuant to this Agreement. Such Tranche Period shall end on the day
in
the applicable succeeding calendar month which corresponds numerically to
the
beginning day of such Tranche Period, provided, however, that if there is
no
such numerically corresponding day in such succeeding month, such Tranche
Period
shall end on the last Business Day of such succeeding month; or
(b) if Yield for
such Purchaser Interest is calculated on the basis of the Prime Rate, a period
commencing on a Business Day selected by Seller and agreed to by the Agent,
provided no such period shall exceed one month.
If
any Tranche Period would end on a day which is not a Business Day,
such Tranche Period shall end on the next succeeding Business Day, provided,
however, that in the case of Tranche Periods corresponding to the LIBO Rate,
if
such next succeeding Business Day falls in a new month, such Tranche Period
shall end on the immediately preceding Business Day. In the case of any Tranche
Period for any Purchaser Interest which commences before the Amortization
Date
and would otherwise end on a date occurring after the Amortization Date,
such
Tranche Period shall end on the Amortization Date. The duration of each Tranche
Period which commences after the Amortization Date shall be of such duration
as
selected by the Agent.
"Transaction
Documents"
means, collectively, this Agreement, each Purchase Notice,
the
Receivables Sale Agreement, the Transfer Agreement (but only those portions
that
relate to the Receivables), each Lock-Box Account Agreement, each Blocked
Account Agreement, the Fee Letter, the Subordinated Note (as defined in the
Receivables Sale Agreement) and all other instruments, documents and agreements
executed and delivered in connection herewith.
"Transactions"means,
collectively, (a) the execution and delivery by each Seller Party of the
Transaction Documents to which it is a party, (b) the sale by the Seller
of the
Receivables, Related Security and Collections pursuant to this Agreement
and use
of the proceeds thereof, and (c) the performance of each Seller Party's other
obligations under the Transaction Documents to which it is a party.
"Transfer
Agreement"means that certain Master Intercompany Agreement dated
April 26, 1993, as amended through the date hereof, by and between Parent
and
Transferor.
E-119
"Transferor
Credit Agreement"
means that certain Credit Agreement, dated as of December 8,
2000,
originally among Transferor, Arrendadora Financiera Navistar, S.A. de C.V.,
Servicios Financieros Navistar, S.A. de C.V. and Navistar Comercial, S.A.
de
C.V., as Borrowers, various lenders, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (as successor to
The
Chase Manhattan Bank), as Administrative Agent, Bank of America, N.A., as
Syndication Agent, and The Bank of Nova Scotia, as Documentation Agent, as
the
same may be amended, restated or otherwise modified from time to time.
"Transferor"means
Navistar Financial Corporation, in its capacity as seller under the Receivables
Sale Agreement.
"UCC"means
the Uniform
Commercial Code as from time to time in effect in the specified
jurisdiction.
"Weekly
Report"means a
report, in substantially the form of Exhibit XI hereto (appropriately complete),
furnished by the Servicer to the Agent pursuant to Section 8.5.
"Weekly
Settlement Date"
means the third Business Day of each week.
"Yield"means
for each
respective Tranche Period relating to Purchaser Interests of the Financial
Institutions, an amount equal to the product of the applicable Discount Rate
for
each Purchaser Interest multiplied by the Capital of such Purchaser Interest
for
each day elapsed during such Tranche Period including the first day but
excluding the last day, annualized on a 360 day basis.
"YieldReserve"
means,
on any
date, an amount equal to 1% multiplied by the Net Receivables Balance as
of the
close of business of the Servicer on such date.
All
accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC
in the
State of Illinois, and not specifically defined herein, are used herein as
defined in such Article 9.
E-120
EXHIBIT
II
FORM
OF PURCHASE
NOTICE
[DATE]
Bank
One, NA (Main Office Chicago), as Agent
1
Bank One Plaza, IL1-0079
Asset-Backed
Finance
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Jupiter Administrator
Re:
PURCHASE NOTICE
Ladies
and Gentlemen:
Reference
is hereby made to the Receivables Purchase Agreement, dated
as of April 8, 2004, by and among Truck Retail Accounts Corporation, a Delaware
corporation (the "Seller"),
Navistar Financial
Corporation, as Servicer, the Financial Institutions,
Jupiter Securitization Corporation ("Conduit"),
and
Bank
One, NA (Main Office Chicago), as Agent (the "Receivables
Purchase
Agreement"). Capitalized terms used herein shall have
the meanings assigned to such terms in the Receivables Purchase Agreement.
The
Agent is hereby notified of the following Incremental
Purchase:
Purchase
Price: $__________________________
Date
of
Purchase:
__________________________
Requested
Discount
Rate: [LIBO
Rate] [Prime Rate] [Pooled Commercial Paper rate]
Please
credit the Purchase Price in immediately available funds to our Facility
Account
[and then wire-transfer the Purchase Price in immediately available funds
on the
above-specified date of purchase to:
[Account
Name]
[Account
No.]
[Bank
Name & Address]
[ABA
#]
Reference:
Telephone
advice to: [Name] @ tel. No. ( )
Please
advise [Name] at telephone no
() if
Conduit will not be making this purchase.
E-121
In
connection with the Incremental Purchase to be made on the above listed "Date
of
Purchase" (the "Purchase
Date"), the
Seller hereby certifies that the following statements are true on the date
hereof, and will be true on the Purchase Date (before and after giving effect
to
the proposed Incremental Purchase):
(i) the
representations and warranties of the Seller set forth in Section 5.1 of
the
Receivables Purchase Agreement are true and correct on and as of the Purchase
Date as though made on and as of such date;
(ii) no event has
occurred and is continuing, or would result from the proposed Incremental
Purchase, that will constitute an Amortization Event or a Potential Amortization
Event;
(iii) the Facility
Termination Date has not occurred, the Aggregate Capital does not exceed
the
Purchase Limit and the aggregate Purchaser Interests do not exceed 100%;
and
(iv) the amount of
Aggregate Capital is $ after
giving effect to the Incremental Purchase to be made on the Purchase Date.
Very
truly yours,
TRUCK
RETAIL ACCOUNTS CORPORATION
By: ______________________________
Name:
______________________________
Title:
______________________________
E-122
EXHIBIT
III
STATE
OF
ORGANIZATION; PLACES OF BUSINESS; LOCATIONS OF RECORDS;
FEDERAL
EMPLOYER
IDENTIFICATION NUMBER AND ORGANIZATIONAL
IDENTIFICATION
NUMBER
NAVISTAR:
Places
of Business:
Locations
of Records:
▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Federal
Employer Identification Number:
36-XXXXXXX
Organizational
Identification Number:
04290010
Trade
and Assumed Names, Prior Names:
International
Harvester Credit Corporation
International
Finance Group
SELLER
Places
of Business:
Locations
of Records:
▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Federal
Employer Identification Number:
36-XXXXXXX
Organizational
Identification Number:
3270162
Trade
and Assumed Names, Prior Names:
None.
E-123
EXHIBIT
IV
NAMES
OF LOCK-BOX
BANKS; BLOCKED ACCOUNT BANKS; LOCK-BOX
ACCOUNTS;
BLOCKED
ACCOUNTS
Lock
Box :
Related Lock-Box Account:
Lock-Box
No. 198381,
P.O. Account
No.: XXXXXXXXXX maintained with
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Bank of America, ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Proceeds
Allocation Account: No. XXX-X-XXXXX located at JPMorgan
Chase Bank, 4 New York Plaza, 6th Floor, New York, New York 10004 (ABA No.
▇▇▇▇▇▇▇▇▇)
Blocked
Account: a trust account number XXXXXXXX.X in the name
"Blocked Account for Bank One, NA (Main Office Chicago), as Agent" maintained
with JPMorgan Chase Bank, 4 New York Plaza, 6th Floor, New York, New York
10004.
E-124
EXHIBIT
V
FORM
OF COMPLIANCE
CERTIFICATE
To:
Bank
One, NA (Main Office Chicago), as Agent
This
Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement dated as of April 8, 2004 among Truck Retail
Accounts Corporation (the "Seller"),
Navistar
Financial Corporation (the "Servicer"),
the
Purchasers party thereto and Bank One, NA (Main Office Chicago), as agent
for
such Purchasers (the "Agreement").
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the duly elected _______________of
Seller.
2. I
have reviewed the terms of the Agreement and
I have made, or have caused to be made under my supervision, a detailed review
of the transactions and conditions of Seller and its Subsidiaries, if any,
with
respect to the accounting period covered by the attached financial
statements.
3. The
examinations described in paragraph 2 did
not disclose, and I have no knowledge of, the existence of any condition
or
event which constitutes an Amortization Event or Potential Amortization Event,
as each such term is defined under the Agreement, as of the date of this
Certificate, except as set forth in paragraph 5 below.
4. Described
below are the exceptions, if any, to
paragraph 3 by listing, in detail, the nature of the condition or event,
the
period during which it has existed and the action which Seller has taken,
is
taking, or proposes to take with respect to each such condition or event:
TRUCK
RETAIL ACCOUNTS CORPORATION
By:
_________________________________
Name:
_________________________________
Title:
_________________________________
E-125
EXHIBIT
VI
FORM
OF LOCK-BOX
ACCOUNT AGREEMENT
[To
BE
ATTACHED]
E-126
Date:
April 8, ▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Ladies
and Gentlemen:
This
letter is delivered to you pursuant to the Receivables
Purchase Agreement, dated as of April 8, 2004 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Agreement") among
Navistar Financial Corporation (with its successors, "Navistar Financial",
"we" or "us"), Truck Retail Accounts Corporation, Jupiter Securitization
Corporation and Bank One, NA (Main Office Chicago), as agent (with its
successors in such capacity, the "Agent"), and in
connection with the Account No. XXXXXXXXXX (the "Lockbox Account"),
our Lock-box No. XXXXXX (the "Lock-box" or the "Lock-box Service")
▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ maintained with you.
We
hereby instruct you, and by your signature below you hereby
agree,
(i) to transfer,
not later than on the third business day after the execution of this letter
and
on each business day thereafter, by wire transfer, all collected and available
funds deposited into the Lockbox Account maintained by you into the Navistar
Financial Proceeds Allocation Account No. XXX-X-XXXXX maintained at JPMorgan
Chase Bank, 4 New York Plaza, 6th Floor, New York, New York 10004 (ABA No.
▇▇▇▇▇▇▇▇▇) (the "Proceeds Allocation
Account") until instructed in writing by the Agent to do otherwise
pursuant to paragraph (f) below, and
(ii) (x) to deposit
all cash, checks, drafts and other instruments or items for the payment of
money
(collectively, "Checks") paid into any Lock-box maintained by you in the
related
Lockbox Account maintained by you (except that you may deal with items which
are
postdated, improperly endorsed or otherwise irregular in accordance with
your
Standard Terms and Conditions, which are attached hereto as Exhibit A, as
modified by our existing operating instructions) and (y) to transfer, on
each
Business Day, all collected and available funds deposited into any such Lockbox
Account to the Proceeds Allocation Account. A "Business Day" is each day
except
Saturdays, Sundays and your holidays. Funds are not available, if in your
reasonable determination, they are subject to a hold, dispute or legal process
preventing their withdrawal.
By
executing a copy of this letter, you
E-127
(a) confirm that
you have established on behalf of Navistar Financial the Lockbox Account
and
Lock-box Service indicated in the first paragraph of this letter,
(b) agree that such
Lockbox Account and Lock-box shall clearly indicate that certain of the items
and funds delivered to the Lock-box or deposited into the Lockbox Account
are
the property of Navistar Financial subject to the security interest of the
Agent
pursuant to the Agreement,
(c) agree that you
will comply with the instructions originated by the Agent directing disposition
of the funds in each such Lockbox Account without further consent by Navistar
Financial,
(d) confirm that
(i) you have not received notice of any other currently effective lien or
claim
on the Lockbox Account and (ii) you do not yourself have any lien or other
claim
on the Lockbox Account (other than any interest you may have as a Secured
Party
under the Agreement),
(e) agree to take
such other action as may be reasonably necessary or appropriate from time
to
time under the UCC to perfect the Agent's Security Interest in the Lockbox
Account,
(f) agree that
within a reasonable period of time, not to exceed two Business Days (as defined
below), after your receipt of a notice from the Agent, substantially in the
form
of Annex 1 attached hereto, you will, each Business Day therafter transfer
by
wire transfer the collected and available balance in the Lockbox Account
to the
account of the Agent specified in the Notice, and
(g) agree that all
Checks delivered to the Lock-box or deposited into the Lockbox Account will
not
be subject to deduction, set-off, banker's lien or any other right in your
favor
except that (i) if you, at any time, determine that there is an inaccuracy
in
such Lockbox Account or that an entry previously posted to such Lockbox Account
was revoked or did not become final (including but not limited to) the return
of
deposited items unpaid) then you may debit such amount against such Lockbox
Account, and (ii) you may debit against such account any fees directly related
to the operation of such account, if Navistar Financial has not paid such
fees
within thirty days of your making a demand for their payment.
If
you (because of insufficient funds or for any other reason)
cannot obtain payment pursuant to paragraph (d) above of such amount by debiting
such account, we agree to pay such amount to you immediately upon demand.
We
agree to indemnify and, at your option, defend you against all
liabilities, claims, losses and expenses (excluding routine operating expenses),
including reasonable attorneys' fees and court fees and costs incurred by
you as
a result of your agreeing to this letter or your relying upon or complying
with
this letter or any information or instruction received by you from us, the
Agent. Notwithstanding the above, we shall have no obligation to indemnify
you
for or defend you against such liabilities, claims, losses and expenses to
the
E-128
extent
such liabilities, claims, losses or expenses are the result of
your gross negligence, willful misconduct or bad faith.
You
will be liable to us or the Agent under or in connection with
this letter or such Lockbox Account or Lock-box, to make an adjustment to
such
account or to pay an amount beyond the final balance actually posted to such
account by you, only to the extent of our direct losses or the Agent's direct
losses and only to the extent such losses are caused by your willful misconduct
or failure to exercise ordinary care. The amount of your liability under
or in
connection with this letter or such account, to make an adjustment to such
account or otherwise, will be limited to (a) the refund of any amount wrongly
debited or misdirected by you from such account which we were not obliged
to
pay, back-dated for account analysis purposes as of the date of the debit
or
misdirection (or at your election, without back-dating but with interest
added,
computed at your effective Federal Funds rate in effect from time to time),
and
(b) the refund of fees paid by us for services performed by you in connection
with these accounts and any services provided by you in connection therewith
to
the extent that such services were not properly performed by you, and (c)
after
such accounts are closed, payment of the balance posted to such accounts.
In no
event will you be liable for any special, indirect, exemplary or consequential
damages. In no event will you be liable as a result of an act or omission
if it
is due to compliance with this letter or with applicable laws, regulations,
operating circulars, clearing house rules or funds-transfer system rules,
any
act or omission by us or the Agent, any act or omission by any other bank,
clearing house, funds-transfer system, agent or other person, mechanical
failure
of your equipment, power failure, strike or lock-out, fire or other casualty,
riot or civil commotion, windstorm, earthquake, flood or other Act of God,
delay
in transportation, governmental regulation or interference, or any event
beyond
your control. The Agent and we acknowledge that you are not a party to the
Agreement.
Neither
the Agent nor any other Secured Party shall be required to
pay you any compensation or indemnity whatsoever for providing the services
contemplated herein.
All
notices and other communications in connection with this
letter shall be addressed to the respective party at its address or telefax
number set forth below the respective party's name on the signature page
of this
letter or any other address or telefax number which a party shall specify
for
the purpose of communications in connection herewith, by notice in writing
to
the other parties. You may rely, and shall be fully protected in acting,
upon
any resolution, statement, certificate, instrument, opinion, report, notice,
request, consent or other paper or document which it believes to be genuine
and
to have been signed or presented by the proper party or, in the case of telefax
transmissions, to have been sent by the proper party or parties.
You
may terminate this letter upon thirty days' prior written
notice to the Agent and us. You may also terminate this letter at any time
by
written notice to the Agent and us if either the Agent or we breach any terms
of
this letter.
This
letter shall be binding upon and inure to the benefit of each
party hereto and shall inure to the benefit of the Agent and each of the
other
secured parties under the Agreement and their respective successors and assigns.
This letter shall not be altered in
E-129
any
material manner except by a writing signed by each party
hereto, provided, however, that your fees and charges are subject to change
on
thirty days' prior written notice to us.
We
agree to pay to you, upon receipt of your invoice, all
out-of-pocket costs, expenses and attorneys' fees incurred by you in connection
with the enforcement of this letter and any instrument or agreement required
hereunder, including but not limited to any such costs, expenses and fees
arising out of the resolution of any conflict, dispute, motion regarding
entitlement to rights or rights of action, or other action to enforce your
rights in a case arising under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code. We agree to
pay
you, upon receipt of your invoice, all costs, expenses and attorneys' fees
incurred by you in the preparation of this letter (including any amendments
hereto or instruments or agreements required hereunder).
Notwithstanding
any of the other provisions in this letter, in the
event of the commencement of a case pursuant to ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
filed by or against us, or in the event of the commencement of any similar
case
under then applicable federal or state law providing for the relief of debtors
or the protection of creditors by or against us, you may act as you deem
necessary to comply with all applicable provisions of governing statutes
and
shall be held harmless from any claim of any of the parties for so doing.
This
letter may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
Nothing
contained in this letter shall create any agency, fiduciary,
joint venture or partnership relationship between you and us or the Agent.
This
letter shall be governed by and construed in accordance with
the substantive laws of the State of Illinois without regard to the choice
of
law principles of such jurisdiction.
E-130
Please
acknowledge receipt of this letter and your acceptance of the
terms hereof by signing a copy of this letter in the space provided below.
Very
truly
yours,
NAVISTAR
FINANCIAL
CORPORATION
By:
/s/ ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Vice President and Treasurer
▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Telefax
number: (▇▇▇)
▇▇▇-▇▇▇▇
Attention:
Vice
President & Treasurer
Acknowledged
and agreed to as of this
__
day of April, 2004.
BANK
OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Bank
of America
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BANK
ONE, NA (MAIN OFFICE CHICAGO), as
Agent
By: /s/
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇-▇▇▇▇, 1-21
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telefax Number (▇▇▇)▇▇▇-▇▇▇▇
E-131
EXHIBIT
A
STANDARD
TERMS AND
CONDITIONS
The
Lockbox Service involves processing Checks that arc received at a
Lockbox Address. With this Service, Company instructs its customers to mail
checks it wants to have processed under the Service to Navistar Financial
Corporation (the "Company") Lockbox Address. Bank picks up mail at the Lockbox
Address according to its mail pick-up schedule. Bank of America, N.A. (the
"Bank") will have unrestricted and exclusive access to the mail directed
to the
Lockbox Address. Bank will provide Company with the Lockbox Service for a
Lockbox Address when Company has completed and Bank has received Bank's then
current set-up documents for the Lockbox Address.
If
Bank receives any mail containing Company's lockbox number at
Bank's lockbox operations location (instead of the Lockbox Address), Bank
may
handle the mail as if it had been received at the Lockbox Address.
PROCESSING
Bank
will handle Checks received at the Lockbox Address according to
the applicable deposit account agreement, as if the Checks were delivered
by
Company to Bank for deposit to the Account, except as modified by this
Agreement.
Bank
will open the envelopes picked up from the Lockbox Address and
remove the contents. For the Lockbox Address, Checks and other documents
contained in the envelopes will be inspected and handled in the manner specified
in the Company's set-up documents. Bank captures and reports information
related
to the lockbox processing, where available, if Company has specified this
option
in the set-up documents. Bank will endorse all Checks Bank processes on
Company's behalf.
If
Bank processes an unsigned check as instructed in the set-up
documents, and the check is paid, but the account owner does not authorize
payment, Company agrees to indemnify Bank, the drawee bank (which may include
Bank) and any intervening collecting bank for any liability or expense incurred
by such indemnitee due to the payment and collection of the check.
If
Company instructs Bank not to process a check bearing a
handwritten or typed notation "Payment in Full" or words of similar import
on
the face of the check, Company understands that Bank has adopted procedures
designed to detect Checks bearing such notations; however, Bank will not
be
liable to Company or any other party for losses suffered if Bank fails to
detect
Checks bearing such notations.
E-132
RETURNED
CHECK
Unless
Company and Bank agree to another processing procedure, Bank
will reclear a Check once which has been returned and marked "Refer to Maker,"
"Not Sufficient Funds" or "Uncollected Funds." If the Check is returned for
any
other reason or if the Check is returned a second time, Bank will debit the
applicable Account and return the Check to Company. Company agrees that Bank
will not send a returned item notice to Company for a returned Check unless
Company and Bank have agreed otherwise.
ACCEPTABLE
PAYEES
For
the Lockbox Address, Company will provide to Bank the names of
Acceptable Payees ("Acceptable Payee" means Company's name and any other
payee
name provided to Bank by Company as an acceptable payee for Checks to be
processed under the Lockbox Service). Bank will process a check only if it
is
made payable to an Acceptable Payee and if the check is otherwise processable.
Company warrants that each Acceptable Payee has authorized Checks payable
to it
to be credited to the Account Company designates for the Lockbox Service.
Bank
may treat as an Acceptable Payee any variation of any Acceptable Payee's
name
that Bank deems to be reasonable.
CHANGES
TO PROCESSING INSTRUCTIONS
Company
may request Bank orally or in writing to make changes to the
processing instructions (including changes to Acceptable Payees) for any
Lockbox
Address by contacting its Bank representative. Bank will not be obligated
to
implement any requested changes until Bank has actually received the requests
and had a reasonable opportunity to act upon them. In making changes, Bank
is
entitled to rely on instructions purporting to be from Company.
E-133
ANNEX
1
[BANK
ONE, N.A.]
Bank
of America
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
RE:
Navistar
Financial Corporation
Account
No.
______________________
Ladies
and Gentlemen:
Reference
is made to the letter agreement dated April 8, 2004 (the
"Agreement") between Navistar Financial Corporation and you regarding the
above-described account (the "Lockbox Account"). In accordance with Section
(f)
on page 2 of the Agreement, we hereby give you notice of our exercise of
control
of the Lockbox Account and we hereby instruct you to transfer funds to our
account as follows:
Bank
Name: _____________________
ABA
No.: _____________________
Account
Name: ___________________
Account
No.: _____________________
Very
truly yours,
BANK
ONE, N.A.
By___________________________
Name:________________________
Title:________________________
E-134
EXHIBIT
VII
FORM
OF ASSIGNMENT
AGREEMENT
THIS
ASSIGNMENT AGREEMENT (this "Assignment
Agreement")
is entered into as of the ____day of ___________, ___, by and
between __________________ ("Assignor")
and ___________________ ("Assignee").
PRELIMINARY
STATEMENTS
A. This
Assignment Agreement is being executed
and delivered in accordance with Section 12.1(b) of that certain Receivables
Purchase Agreement dated as of April 8, 2004 by and among Truck Retail Accounts
Corporation, Navistar Financial Corporation, as Servicer, Jupiter Securitization
Corporation, Bank One, NA (Main Office Chicago), as Agent, and the Financial
Institutions party thereto (as amended, modified or restated from time to
time,
the "Purchase
Agreement").
Capitalized terms used and not otherwise defined herein are
used
with the meanings set forth or incorporated by reference in the Purchase
Agreement.
B. Assignor
is a Financial Institution party to
the Purchase Agreement, and Assignee wishes to become a Financial Institution
thereunder; and
C. Assignor
is selling and assigning to Assignee
an undivided ________% (the "Transferred
Percentage")
interest in all of Assignor's rights and obligations under
the
Purchase Agreement and the Transaction Documents, including, without limitation,
Assignor's Commitment and (if applicable) the Capital of Assignor's Purchaser
Interests as set forth herein.
AGREEMENT
The
parties hereto hereby agree
as follows:
1. The
sale, transfer and assignment effected by
this Assignment Agreement shall become effective (the "EffectiveDate")
two
(2)
Business Days (or such other date selected by the Agent in its sole discretion)
following the date on which a notice substantially in the form of Schedule
II to
this Assignment Agreement ("Effective
Notice") is
delivered by the Agent to Conduit, Assignor and Assignee. From
and after
the Effective Date, Assignee shall be a Financial Institution party to the
Purchase Agreement for all purposes thereof as if Assignee were an original
party thereto and Assignee agrees to be bound by all of the terms and provisions
contained therein.
2. If
Assignor has no outstanding Capital under
the Purchase Agreement, on the Effective Date, Assignor shall be deemed to
have
hereby transferred and assigned to Assignee, without recourse, representation
or
warranty (except as provided in paragraph 6 below), and the Assignee shall
be
deemed to have hereby irrevocably taken, received and assumed from Assignor,
the
Transferred Percentage of Assignor's Commitment and all rights and obligations
associated therewith under the terms of the Purchase Agreement,
including,
E-135
without
limitation, the Transferred Percentage of Assignor's future
funding obligations under Section 4.1 of the Purchase Agreement.
3. If
Assignor has any outstanding Capital under
the Purchase Agreement, at or before 12:00 noon, local time of Assignor,
on the
Effective Date Assignee shall pay to Assignor, in immediately available funds,
an amount equal to the sum of (i) the Transferred Percentage of the outstanding
Capital of Assignor's Purchaser Interests (such amount, being hereinafter
referred to as the "Assignee's
Capital;
(ii) all
accrued but
unpaid (whether or not then due) Yield attributable to Assignee's Capital;
and
(iii) accruing but unpaid fees and other costs and expenses payable in respect
of Assignee's Capital for the period commencing upon each date such unpaid
amounts commence accruing, to and including the Effective Date (the "Assignee's
Acquisition Cost");
whereupon, Assignor shall be deemed to have sold, transferred
and
assigned to Assignee, without recourse, representation or warranty (except
as
provided in paragraph 6 below), and Assignee shall be deemed to have hereby
irrevocably taken, received and assumed from Assignor, the Transferred
Percentage of Assignor's Commitment and the Capital of Assignor's Purchaser
Interests (if applicable) and all related rights and obligations under the
Purchase Agreement and the Transaction Documents, including, without limitation,
the Transferred Percentage of Assignor's future funding obligations under
Section 4.1 of the Purchase Agreement.
4. Concurrently
with the execution and delivery
hereof, Assignor will provide to Assignee copies of all documents requested
by
Assignee which were delivered to Assignor pursuant to the Purchase
Agreement.
5. Each
of the parties to this Assignment
Agreement agrees that at any time and from time to time upon the written
request
of any other party, it will execute and deliver such further documents and
do
such further acts and things as such other party may reasonably request in
order
to effect the purposes of this Assignment Agreement.
6. By
executing and delivering this Assignment
Agreement, Assignor and Assignee confirm to and agree with each other, the
Agent
and the Financial Institutions as follows: (a) other than the representation
and
warranty that it has not created any Adverse Claim upon any interest being
transferred hereunder, Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made by any other Person in or in connection with the Purchase Agreement
or the
Transaction Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of Assignee, the Purchase Agreement or
any
other instrument or document furnished pursuant thereto or the perfection,
priority, condition, value or sufficiency of any collateral; (b) Assignor
makes
no representation or warranty and assumes no responsibility with respect
to the
financial condition of the Seller, any Obligor, any Affiliate of the Seller
or
the performance or observance by the Seller, any Obligor, any Affiliate of
the
Seller of any of their respective obligations under the Transaction Documents
or
any other instrument or document furnished pursuant thereto or in connection
therewith; (c) Assignee confirms that it has received a copy of the Purchase
Agreement and copies of such other Transaction Documents, and other documents
and information as it has requested and deemed appropriate to make its own
credit analysis and decision to enter into this Assignment Agreement; (d)
Assignee will, independently and without reliance upon the Agent, Conduit,
the
Seller or any other Financial Institution or Purchaser and
E-136
based on such documents and information as it shall deem appropriate
at the
time, continue to make its own credit decisions in taking or not taking action
under the Purchase Agreement and the Transaction Documents; (e) Assignee
appoints and authorizes the Agent to take such action as agent on its behalf
and
to exercise such powers under the Transaction Documents as are delegated
to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (f) Assignee agrees that it will perform in accordance
with their terms all of the obligations which, by the terms of the Purchase
Agreement and the other Transaction Documents, are required to be performed
by
it as a Financial Institution or, when applicable, as a Purchaser.
7. Each party
hereto represents and warrants to and agrees with the Agent that it is aware
of
and will comply with the provisions of the Purchase Agreement, including,
without limitation, Sections 4.1, 13.1 and 14.6 thereof.
8. Schedule
I hereto sets forth the revised
Commitment of Assignor and the Commitment of Assignee, as well as administrative
information with respect to Assignee.
9. THIS ASSIGNMENT
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF ILLINOIS.
10. Assignee
hereby covenants and agrees that,
prior to the date which is one year and one day after the payment in full
of all
senior indebtedness for borrowed money of Conduit, it will not institute
against, or join any other Person in instituting against, Conduit any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state
of
the United States.
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers of
the
date hereof.
[ASSIGNOR]
By: ______________________
Title:______________________
[ASSIGNEE]
By:_______________________
Title:______________________
E-137
SCHEDULE
I TO ASSIGNMENT AGREEMENT
LIST
OF LENDING OFFICES, ADDRESSES
FOR
NOTICES AND COMMITMENT AMOUNTS
Date:______________,
_______
Transferred
Percentage: _________%
|
A1
|
▇-▇
|
▇-▇
|
▇-▇
|
|
|
Assignor
|
Commitment
(prior to giving effect to the Assignment
Agreement)
|
Commitment
(after giving effect to the Assignment Agreement)
|
Outstanding
Capital (if any)
|
Ratable
Share of Outstanding Capital
|
|
▇-▇
|
▇-▇
|
▇-▇
|
||
|
Assignee
|
Commitment
(after giving effect to the Assignment Agreement)
|
Outstanding
Capital (if any)
|
Ratable
Share of Outstanding Capital
|
|
Address
for
Notices
Attention:
Phone:
Fax:
E-138
SCHEDULE
II TO
ASSIGNMENT AGREEMENT
EFFECTIVE
NOTICE
TO: _______________________ ,
Assignor
_______________________
_______________________
_______________________
TO: ________________________,
Assignee
________________________
________________________
________________________
The
undersigned, as Agent under the Receivables Purchase Agreement
dated as of April 8, 2004 by and among Truck Retail Accounts Corporation,
a
Delaware corporation, Navistar Financial Corporation, as Servicer, Jupiter
Securitization Corporation, Bank One, NA (Main Office Chicago), as Agent,
and
the Financial Institutions party thereto, hereby acknowledges receipt of
executed counterparts of a completed Assignment Agreement dated as of_________,
____ between________________, as Assignor, and _______________, as
Assignee. Terms defined in such Assignment Agreement are used herein
as therein defined.
1. Pursuant
to such Assignment Agreement, you
are advised that the Effective Date will be ____________, _____.
2. Conduit
hereby consents to the Assignment Agreement as required by Section 12.1(b)
of
the Receivables Purchase Agreement.
[3.
Pursuant to such Assignment Agreement, the Assignee is required
to pay $_________ to Assignor at or before 12:00 noon (local time of Assignor)
on the Effective Date in immediately available funds.]
Very
truly yours,
BANK
ONE, NA (MAIN OFFICE CHICAGO),
individually
and as Agent
By: ______________________________
Title:______________________________
E-139
JUPITER
SECURITIZATION CORPORATION
By: ________________________________
Authorized Signatory
E-140
EXHIBIT
VIII
CREDIT
AND
COLLECTION POLICY
SEE
EXHIBIT V TO RECEIVABLES SALE AGREEMENT
E-141
EXHIBIT
IX
FORM
OF
CONTRACTS)
SEE
ATTACHED
E-142
TERMS
AGREEMENT
____________________________________
Buyer
Name
____________________________________
Address
____________________________________
City,
State. Zip
Invoicing
Terms
_____________________________________
(Buyer)
from time to time orders various quantities of trucks from Navistar. For
any
and all trucks
currently on order and all future orders.
Buyer
agrees
to
accept
invoicing for Buyer's
account
upon
completion of
manufacture at Navistar's assembly plant. Title to
such trucks shall
pass to
Buyer upon
tender
of
invoice.
It
is understood that Buyer
will
take
physical delivery
of trucks subject to this Agreement at the first destination specified on
Buyer's
purchase
order or on other written
notification.
Navistar
will maintain
responsibility for
the physical condition of such trucks until delivery is completed
at the
designated delivery
location.
Payment
Terms
Account
terms have been established upon acceptance of
Buyer's order.
A.
Buyer
agrees
that
payment shall be due to Navistar ______ days from date of factory invoice
(build date).
B.
Buyer
agrees that
payment shall be due to Navistar ______ days from date of delivery.
While
a late charge may be asessed from due date to actual date of
payment, it is not intended for an late charge to be accepted in lieu of
prompt
payment.
This
Agreement governs all purchases orders from the date hereof
until canceled in writing by either party.
Acknowledged:
By: ______________________________________
______________________________________
Title
Date:_____________________________________
By: ______________________________________
National
Account Manager
Navistar International Transportation Corp
E-143
ADDITIONAL
PROVISIONS OF
SALE
|
1.
|
The
trucks and equipment covered by this agreement will be invoiced
immediately upon completion of manufacture at assembly plant
and the title
shall pass to purchaser upon tender of
invoice.
|
|
2.
|
The
seller will maintain responsibility for the physical condition
of the
trucks and equipment covered by this agreement until physical
delivery is
completed to the purchaser or his
agent.
|
|
3.
|
While
a late charge may be assessed from due date to actual date of
payment, it
is not intended for late charges to be accepted in lieu of prompt
payment.
|
|
4.
|
The
trade allowance set forth herein is based upon our appraisal
of the
trade-in referred to in its present mechanical condition, free
of all
liens, and with the equipment and attachments set forth upon
our appraisal
sheet. Such trade-in shall be subject to reappraisal at
the time it is delivered to us and if it is reappraised at a
different
value than the trade allowance set forth herein, because of
difference in mechanical condition or because of removal or
substitution of equipment or parts or attachments, or because
it is
subject to a lien not set forth herein, the trade allowance shall
be
changed to such reappraised value and the difference between
the trade
allowance set forth herein and the reappraised value, less any lien
not set forth herein, shall be paid in cash at the time that
the new
vehicle or vehicles covered by this proposal are delivered to
you.
|
|
5.
|
You
agree to accept the goods covered by this proposal, as fulfillment
thereof, with such changes in design and materials, or either
of them,
that the manufacturer may make.
|
|
6.
|
If
any sales or excise taxes now in effect shall be increased, any
new sales
excise, floor or processing taxes shall be imposed by federal,
state or
local laws, or if the amount of such tax actually due exceeds
the amount
specified in this proposal, you are to reimburse us for any and
all such
increased, or additional new, taxes that we may be required to
pay or to
reimburse others by reason of the manufacturer, importation,
purchase or
sale of the vehicles and equipment carried by this
proposal.
|
|
7.
|
We
shall not be responsible for delays in transportation or to delay
the same
on time when prevented by strikes, fires or accidents, or by
the demand
exceeding the available supply, or by any other cause reasonable
beyond
our control.
|
|
8.
|
The
limited warranties applicable to the vehicles described herein
are
Navistar International Corp’s standard printed warranties which are
incorporated herein by reference.
|
NOTE: Disclaimer. The
corporation’s standard printed warranties are in lieu of all other warranties,
expressed or implied. Navistar International Corp. specifically
disclaims warranties of MERCHANTABILITY AND FITNESS FOR A
PARTICULAR
E-144
PURPOSE,
all other representations to the use/purchaser, and all other obligations
or
liabilities. The corporation further excludes liability incidental or
consequential damages, on the part of the corporation or seller. No person
is
authorized to give any other warranties or to assume any liabilities on
the
corporation or seller’s behalf unless made or assumed in writing by the
corporation or the seller.
NOTE: Remedies
under state law. Some states do not allow the exclusion or limitation
of incidental or consequential damages, so the above limitation or exclusion
may
not apply to you. Navistar International Transportation
Corp’s warranties give you specific legal rights and you may also have other
legal rights which may vary from state to state.
E-145
EXHIBIT
X
FORM
OF MONTHLY REPORT
[To
Be Attached]
E-146
Truck
Retail Account
Corporation
Monthly
Report
For: March 2004
As
of ▇▇▇▇▇ ▇▇,
▇▇▇▇
|
▇.
|
Receivables
Rollforward
|
|
|
Beginning
Receivables
|
271,835,046
|
|
|
Gross
Sales
|
105,089,715
|
|
|
Additional
Post Invoice
Sales
|
95,403
|
|
|
Total
Cash
Collections
|
(126,014,221)
|
|
|
Dilution
|
(330,200)
|
|
|
Charge-offs
|
0
|
|
|
Recoveries
|
0
|
|
|
Unapplied
Cash
|
0
|
|
|
Other
Adjustments
|
0
|
|
|
Total
Receivables
|
250,675,743
|
|
II.
|
Master
Aging
Schedule
|
Aging
|
|
|
Current
|
165,875,499
|
66.17%
|
|
|
1
–
30
days past
due
|
60,134,384
|
23.99%
|
|
|
31
–
60
days past
due
|
5,881,180
|
2.35%
|
|
|
61
–
90
days past
due
|
639,527
|
0.26%
|
|
|
91
–
120
days past
due
|
981,840
|
0.39%
|
|
|
>
120
days past
due
|
421,366
|
0.17%
|
|
|
Future
(unapplied cash &
terms>30)
|
0
|
0.00%
|
|
|
Non-Aged
|
36,991,108
|
14.76%
|
|
|
Non-Aged
Credits
|
(20,012,163)
|
-7.98%
|
|
|
Other
Credits & Unapplied
Cash
|
(236,906)
|
-0.09%
|
|
|
Total
Receivables
|
250,675,834
|
100.00%
|
|
|
UNRECONCILED
DIFFERENCE
|
(90)
|
||
|
Past
Due Aging Schedule of A’s
and B’s
|
|||
|
Aging
|
|||
|
Current
|
97,698,875
|
85.08%
|
|
|
1
–
30
days past
due
|
14,078,350
|
12.26%
|
|
|
31
–
60
days past
due
|
1,972,648
|
1.72%
|
|
|
61
–
90
days past
due
|
596,145
|
0.52%
|
|
|
91
–
120
days past
due
|
329,934
|
0.29%
|
|
|
>
120
days past
due
|
349,415
|
0.30%
|
|
|
Credits
&
Unapplied
Cash
|
(192,897)
|
-0.17%
|
|
|
Total
Receivables
|
114,832,470
|
100.00%
|
|
|
Past
Invoice Aging Schedule of
C’s
|
|||
|
Current
|
Aging
|
||
|
1
–
30
days
past invoice
|
63,157,101
|
53.38%
|
|
|
31
–
60
days past
invoice
|
48,198,057
|
40.74%
|
|
|
61
–
90
days past
invoice
|
5,863,897
|
4.96%
|
|
|
91
–
120
days
past invoice
|
137,584
|
0.12%
|
|
|
>
120
days past
invoice
|
994,076
|
0.84%
|
|
|
Credits
&
Unapplied
Cash
|
(44,009)
|
-0.04%
|
|
|
Total
Receivables
|
118,306,705
|
100.00%
|
|
|
III.
|
Eligible
Receivables
|
||
|
Total
Receivables
|
250,675,743
|
||
|
Minus: A
&
B Receivables> 60 days past due
|
1,275,494
|
||
|
Total
B Receivables
|
105,835,211
|
||
|
Undelivered
B Receivables
|
68,607,238
|
||
|
25%
Haircut on Current undelivered B’s
|
17,151,809
|
||
|
10%
Haircut on B’s
|
10,583,521
|
||
|
25%
Haircut on 1-30dpi C’s
|
15,789,275
|
||
|
C
Receivables>90 days past invoice
|
1,131,660
|
||
|
Non-aged
(N) Receivables less N Credit
|
16,978,944
|
||
|
Contra-Accounts>
$500K
|
0
|
0
|
|
|
Non-Extended
Terms> 120 Days
|
0
|
||
|
Extended
Terms Receivables
|
0
|
||
|
U.S.
Government Receivables> 5%
|
1,100,776
|
0
|
|
|
Obligors
w/ 30%of A&B Rec’s>60 dpd (Note #1)
|
38,996
|
||
|
Obligors
w/ 30%of C’s Rec’s>90 dpi (Note #1)
|
0
|
||
|
Bankrupt
Obligors
|
0
|
||
|
Other
Ineligibles
|
0
|
||
|
Eligible
Receivables
Balance
|
187,726,043
|
||
E-147
|
IV.
|
Capital
Availability
|
||
|
Eligible
Receivables
Balance
|
187,726,043
|
||
|
Minus: Excess
Concentrations (see Section VI)
|
59,892,783
|
||
|
Cendant
excess concentration
|
0
|
||
|
Net
Receivable
Balance
|
127,833,260
|
||
|
Minus: Loss
Reserve Percentage X Net Receivables Bal (Note #2)
|
20.00%
|
25,566,652
|
|
|
Dilution
Reserve Percentage X Net Receivables Balance (Note
#3)
|
5.00%
|
6,391,663
|
|
|
Yield
& Servicing Reserve Percentage X Net Receivables Balance
(Note#4)
|
1.00%
|
1,278,333
|
|
|
In the event of a Credit
Enhancement Trigger, the aggregate reserves would be the greater
of:
(a)
35% or
(b) the sum of the Loss, Dilution and Yield and Servicing
Reserve.
|
|||
|
Total
Reserve Requirement
|
33,236,648
|
||
|
Available
for Funding
|
94,596,613
|
||
|
Capital
Outstanding (cannot exceed $100 million)
|
0
|
||
|
Purchaser
Interest (cannot exceed 100%) (Note #5)
|
0.00%
|
||
|
Amount
Available or Paydown Required
|
0
|
||
|
AMOUNT
ADVANCED/PAID DOWN
|
0
|
||
|
Purchaser
Interest after
Draw/Paydown (cannot exceed 100%)
|
0.00%
|
||
|
V.
|
Compliance
(Note
#6)
|
Termination
Event?
|
||||
|
3-Month
Average Dilution Ration
(cannot be greater than 2.5%)
|
0.13%
|
No
|
||||
|
Current
month dilution
ratio
|
0.25%
|
|||||
|
One
month prior dilution
ratio
|
0.09%
|
|||||
|
Two
month prior dilation
ratio
|
0.04%
|
|||||
|
3-Month
Average Master Aging
Delinquency Ratio (cannot be greater than 5.5%)
|
1.38%
|
No
|
||||
|
Current
month delinquency
ratio
|
0.81%
|
|||||
|
One
month prior delinquency
ratio
|
1.41%
|
|||||
|
Two
month prior delinquency
ratio
|
1.92%
|
|||||
|
3-Month
Average Master Aging
Default Ratio (cannot be greater than 0.5%)
|
0.89%
|
No
|
||||
|
Current
month default
ratio
|
0.26%
|
|||||
|
One
month prior
default ratio
|
0.90%
|
|||||
|
Two
month prior default
ratio
|
1.51%
|
|||||
|
VI.
|
Obligor
Concentration
Limits
|
20.00% | Loss Reserve Floor | ||||
|
Obligor
Name
|
Obligor
Total
|
Ineligibles
|
Eligible
Receivables
|
Concentration
Limit
%
|
Limit
Amount
|
Excess
Concentration
|
|
|
Anheuser
▇▇▇▇, Inc. and
Affiliates
|
164,160
|
0
|
164,160
|
18.00%
|
33,790,688
|
0
|
|
|
Walmart
Leasing and
Affiliates
|
13,590,288
|
1,432,695
|
12,157,594
|
18.00%
|
33,790,688
|
0
|
|
|
PHH/Ameri
Gas And Affiliates
(Cendant)
|
4,710,826
|
376,480
|
4,334,346
|
10.00%
|
18,722,604
|
0
|
|
|
Safeway
Stores
|
947,457
|
206,922
|
740,535,0
|
10.00%
|
18,722,604
|
0
|
|
|
▇▇▇▇
▇▇▇ and
Affiliates
|
0
|
0
|
0
|
10.00%
|
18,722,604
|
0
|
|
|
Penske
|
63,181,606
|
2,845,277
|
60,336,329
|
6.67%
|
12,515,070
|
47,821,259
|
|
|
Budget
(Cendant)
|
42,165,715
|
11,321,587
|
30,844,128
|
10.00%
|
18,772,604
|
12,071,524
|
|
|
Ryder
|
18,367,117
|
1,765,665
|
16,601,452
|
10.00%
|
18,772,604
|
0
|
|
|
Obligor
1
|
0
|
0
|
0
|
6.67%
|
12,515,070
|
0
|
|
|
Obligor
2
|
0
|
0
|
0
|
6.67%
|
12,515,070
|
0
|
|
|
TOTAL
|
143,127,169
|
17,948,626
|
125,178,543
|
59,892,783
|
Notes:
1
ALL Receivables of any A & B Obligor for whom receivables
greater than 60 dpd
constitute, in the
aggregate, more than 30% of all Receivables of such
Obligor.
All
Receivables of any C Obligor for whom receivables greater than 90
dpi constitute, in the aggregate, more than 30% of all Receivables of such
Obligor.
2
This reserve percentage is calculated dynamically based on recent
portfolio performance.
3
This reserve percentage is calculated dynamically based on recent
portfolio performance.
4
This reserve percentage a static percentage.
5
Purchaser Interest is defined as follows: Capital / NRB - (Reserve
Percentage X NRB).
6
Dilution Ratio is defined as current month's dilution divided by
sales 1-month prior, which cannot be greater than 2.5%
Delinquency
Ratio is defined as the aggregate Oustanding Balance of
all Receivables that were greater than 60 days divided by the aggregate
Outstanding Balance of all Receivables, which cannot be greater than 5.5%
Default Ratio is defined as the sum of the aggregate Outstanding Balance of
all
Receivables unpaid for more than 90 but less than 121 days and the aggregate
Oustanding Balance of all Receivables that
became
Charged-Off prior to 90 days past due divided by the aggregate
Oustanding Balance of all Receivables, which cannot be greater than 4.5%
The
undersigned hereby represent and warrants that the foregoing is a
true and accurate accounting with respect to the outstandings of March 31,
2004
in accordance with the Receivables Purchase Agreement date as of April 8, 2004
and that all Representations and Warranties are restated and reaffirmed.
Signed
by: /s/ ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Vice
President & Treasurer
E-148
EXHIBIT
XI
FORM
OF WEEKLY
REPORT
[To
Be
Attached]
E-149
EXHIBIT
XII
FORM
OF REDUCTION
NOTICE
TRUCK
RETAIL
ACCOUNTS CORPORATION
REDUCTION
NOTICE
DATED ,
20_
Bank
One,
NA
(Main Office Chicago),
as
Agent ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Jupiter Administrator Ladies and Gentlemen:
Reference
is made to the Receivables Purchase Agreement dated as of
April 8, 2004 (as amended, supplemented or otherwise modified from time to
time,
the "Receivables
Purchase Agreement")
among Truck Retail Accounts Corporation (the "Seller"),
Navistar
Financial
Corporation., as initial Servicer, Jupiter Securitization Corporation, and
Bank
One, NA (Main Office Chicago), as Agent. Capitalized terms defined in the
Receivables Purchase Agreement are used herein with the same meanings.
The
Seller hereby notifies the Agent that it wishes to make an
Aggregate Reduction of $and that the Proposed Reduction Date for such
Aggregate
Reduction is, 20_, which gives effect to the Required
Notice Period.
IN
WITNESS WHEREOF,
the Seller has caused this Reduction Notice to be executed and delivered
as of the date first above written.
TRUCK
RETAIL ACCOUNTS CORPORATION, as Seller
By:
Name:
Title:
E-150
SCHEDULE
A
COMMITMENTS
OF
FINANCIAL INSTITUTIONS
Financial
Institution
Commitment
Bank
One, NA (Main Office
Chicago) $102,
000,000
E-151
SCHEDULE
B
DOCUMENTS
TO BE
DELIVERED TO THE AGENT
ON
OR PRIOR TO THE
INITIAL PURCHASE
PART
I:
Documents to be Delivered in Connection with the Receivables Sale
Agreement.
1.
Executed
copies of the Receivables Sale Agreement, duly executed by the parties
thereto
2.
Copy
of the Resolutions
of the Board of Directors of Transferor certified by its Secretary, authorizing
Transferor's execution, delivery and performance of the Receivables Sale
Agreement and the other documents to be delivered by it thereunder.
3. Articles or
Certificate of Incorporation of Transferor certified by the Secretary of State
of the jurisdiction of incorporation of Transferor on or within thirty (30)
days
prior to the initial Purchase (as defined in the Receivables Sale
Agreement).
4. Good Standing
Certificate for Transferor issued by the Secretaries of State of its state
of
incorporation and each jurisdiction where it has material operations, each
of
which is listed below:
a.
b.
5. A certificate of
the Secretary of Transferor certifying: (i) the names and signatures of the
officers authorized on its behalf to execute the Receivables Sale Agreement
and
any other documents to be delivered by it thereunder and (ii) a copy of
Transferor's By-Laws.
6. Pre-filing state
and federal tax lien, judgment lien and UCC lien searches against Transferor
from the following jurisdictions:
a. Delaware
b. Illinois
7. Copies of proper
financing statements, duly filed under the UCC on or before the date of the
initial Purchase (as defined in the Receivables Sale Agreement) in all
jurisdictions as may be necessary or, in the opinion of Seller (or its assigns),
desirable, under the UCC of all appropriate jurisdictions or any comparable
law
in order to perfect the ownership interests contemplated by the Receivables
Sale
Agreement.
8. Copies of proper
UCC termination statements, if any, necessary to release all security interests
and other rights of any Person in the Receivables, Contracts or Related Security
previously granted by Transferor.
E-152
9. Executed Lock-Box
Account Agreements for each Lock-Box and Blocked Account Agreements for each
Blocked Account.
10. A favorable
opinion of legal counsel for Transferor reasonably acceptable to Seller (or
its
assigns) which addresses the following matters and such other matters as Seller
(or its assigns) may reasonably request:
--Transferor
is a corporation duly incorporated, validly existing,
and in good standing under the laws of its state of incorporation.
--Transferor
has all requisite authority to conduct its business in
each jurisdiction where failure to be so qualified would have a material adverse
effect on Transferor's business.
--The
execution and delivery by Transferor of the Receivables Sale
Agreement and each other Transaction Document to which it is a party and its
performance of its obligations thereunder have been duly authorized by all
necessary corporate action and proceedings on the part of Transferor and will
not:
(a) require any
action by or in respect of, or filing with, any governmental body, agency or
official (other than the filing of UCC financing statements);
(b) contravene, or
constitute a default under, any provision of applicable law or regulation or
of
its articles or certificate of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon Transferor;
or
(c) result in the
creation or imposition of any Adverse Claim on assets of Transferor or any
of
its Subsidiaries (except as contemplated by the Receivables Sale
Agreement).
--The
Receivables Sale Agreement and each other Transaction Document
to which it is a party has been duly executed and delivered by Transferor and
constitutes the legal, valid, and binding obligation of Transferor enforceable
in accordance with its terms, except to the extent the enforcement thereof
may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
- -The
provisions of the Receivables Sale Agreement are effective to create a valid
security interest in favor of Seller in all Receivables and upon the filing
of
financing statements, Seller shall acquire a first priority, perfected security
interest in such Receivables.
- -To
the best of the opinion giver's knowledge, there is no action, suit or other
proceeding against Transferor or any Affiliate of Transferor, which would
materially adversely affect the business or financial condition of Transferor
and its Affiliates taken as a whole or which would materially adversely affect
the ability of Transferor to perform its obligations under the Receivables
Sale
Agreement.
11. A
"true sale" opinion
and "substantive
consolidation"
opinion of counsel for Transferor with respect to the transactions
contemplated by the Receivables Sale Agreement.
E-153
12. A
Compliance
Certificate.
13. Executed copies
of (i) all consents from and authorizations by any Persons and (ii) all waivers
and amendments to existing credit facilities, that are necessary in connection
with the Receivables Sale Agreement.
14. Executed copies
of the Subordinated Note (as defined in the Receivables Sale Agreement) by
Seller in favor of Transferor.
PART
II: Documents to Be Delivered in Connection with the
Agreement
1. Executed
copies of the Agreement, duly executed by the parties thereto.
2. Copy
of the
Resolutions of the Board of Directors of each Seller Party certified by its
Secretary authorizing such Person's execution, delivery and performance of
this
Agreement and the other documents to be delivered by it hereunder.
3. Articles
or Certificate of Incorporation of each Seller Party certified by the Secretary
of State of its jurisdiction of incorporation on or within thirty (30) days
prior to the initial Incremental Purchase.
4. Good Standing
Certificate for each Seller Party issued by the
Secretaries of State of its state of incorporation and each jurisdiction where
it has material operations, each of which is listed below:
a. Seller:
b. Servicer:
5. A
certificate of the Secretary of each Seller Party certifying (i) the names
and
signatures of the officers authorized on its behalf to execute this Agreement
and any other documents to be delivered by it hereunder and (ii) a copy of
such
Person's By-Laws.
6. Pre-filing
state and federal tax lien, judgment lien and UCC lien searches against each
Seller Party from the following jurisdictions:
a. Seller: Delaware
and Illinois
b. Servicer:
Delaware and Illinois
7. Copies
of proper financing statements, duly filed under the UCC on or before the date
of the initial Incremental Purchase in all jurisdictions as may be necessary
or,
in the opinion of the Agent, desirable, under the UCC of all appropriate
jurisdictions or any comparable law in order to perfect the ownership interests
contemplated by this Agreement.
E-154
8. Copies
of proper UCC termination statements, if any, necessary to release all security
interests and other rights of any Person in the Receivables, Contracts or
Related Security previously granted by Seller.
9. Executed
copies of Lock-Box Account Agreements for each Lock-Box and Blocked Account
Agreements for each Blocked Account.
10. A
favorable opinion of legal counsel for the Seller Parties reasonably acceptable
to the Agent which addresses the following matters and such other matters as
the
Agent may reasonably request:
--Each
Seller Party is a corporation duly incorporated, validly
existing, and in good standing under the laws of its state of
incorporation.
--Each
Seller Party has all requisite authority to conduct its
business in each jurisdiction where failure to be so qualified would have a
material adverse effect on such Person's business.
--The
execution and delivery by each Seller Party of this Agreement
and each other Transaction Document to which it is a party and its performance
of its obligations thereunder have been duly authorized by all necessary
corporate action and proceedings on the part of such Person and will not:
(a) require any
action by or in respect of, or filing with, any governmental body, agency or
official (other than the filing of UCC financing statements);
(b) contravene, or
constitute a default under, any provision of applicable law or regulation or
of
its articles or certificate of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such
Person; or
(c) result in the
creation or imposition of any Adverse Claim on assets of such Person or any
of
its Subsidiaries (except as contemplated by this Agreement).
--This
Agreement and each other Transaction Document to which such
Person is a party has been duly executed and delivered by such Person and
constitutes the legal, valid, and binding obligation of such Person, enforceable
in accordance with its terms, except to the extent the enforcement thereof
may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
--The
provisions of the Agreement are effective to create a valid
security interest in favor of the Agent for the benefit of the Purchasers in
all
Receivables, and upon the filing of financing statements, the Agent for the
benefit of the Purchasers shall acquire a first priority, perfected security
interest in such Receivables.
--To
the best of the opinion giver's knowledge, there is no action,
suit or other proceeding against any Seller Party or any of their respective
Affiliates, which would materially adversely affect the business or financial
condition of such Person and its Affiliates taken as a
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whole
or which would materially adversely affect the ability of such
Person to perform its obligations under any Transaction Document to which it
is
a party.
11.
If requested by Conduit or the Agent, a favorable
opinion of legal counsel for each Financial Institution, reasonably acceptable
to the Agent which addresses the following matters:
- -This
Agreement has been duly authorized by all necessary corporate action of such
Financial Institution.
- -This
Agreement has been duly executed and delivered by such Financial Institution
and, assuming due authorization, execution and delivery by each of the other
parties thereto, constitutes a legal, valid and binding obligation of such
Financial Institution, enforceable against such Financial Institution in
accordance with its terms.
12. A
Compliance Certificate.
13. The
Fee Letter.
14. A
Monthly Report as of March 31,
2004.
15. Executed
copies of (i) all consents from and authorizations by any Persons and (ii)
all
waivers and amendments to existing credit facilities, that are necessary in
connection with this Agreement.
16. Officer's
Certificate Re: Recycled
SPVs.
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