NAVISTAR FINANCIAL CORPORATION,
Servicer
and
NAVISTAR FINANCIAL SECURITIES CORPORATION,
Seller
and
CHEMICAL BANK,
1990 Trust Trustee
and
THE BANK OF NEW YORK,
Master Trust Trustee
POOLING AND SERVICING AGREEMENT
Dated as of
June 8, 1995
NAVISTAR FINANCIAL DEALER NOTE MASTER TRUST
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ..............................................................1
SECTION 1.01 Definitions..........................................1
SECTION 1.02 Other Definitional Provisions.......................21
ARTICLE II
CONVEYANCE OF 1990 TRUST SELLER CERTIFICATE; CONVEYANCE OF DEALER NOTES.....22
SECTION 2.01 Conveyance of 1990 Trust Seller's Certificate and
Other Assets........................................22
SECTION 2.02 Conveyance of Dealer Notes..........................22
SECTION 2.03 Acceptance by Master Trust Trustee..................24
SECTION 2.04 Representations and Warranties of the Seller Relating
to the Seller......................................26
SECTION 2.05 Representations and Warranties of the Seller
Relating to the Agreement and any Supplement and to
the Dealer Notes...................................28
SECTION 2.06 Transfer of Ineligible Dealer Notes.................30
SECTION 2.07 Purchase of Certificateholders' Interest............31
SECTION 2.08 Covenants of the Seller.............................32
SECTION 2.09 Seller's Officer's Certificate......................32
ARTICLE III
ADMINISTRATION AND SERVICING OF DEALER NOTES................................33
SECTION 3.01 Acceptance of Appointment and Other Matters Relating
to Servicer........................................33
SECTION 3.02 Servicing Compensation..............................34
SECTION 3.03 Representations and Warranties of the Servicer......34
SECTION 3.04 Reports and Records for the Master Trust Trustee....36
SECTION 3.05 Servicer Certificate................................36
SECTION 3.06 Annual Independent Public Accountants' Servicing
Report.............................................37
SECTION 3.07 Tax Treatment.......................................37
SECTION 3.08 Notices by the Servicer.............................38
SECTION 3.09 Custody of Dealer Notes.............................38
SECTION 3.10 Covenants of the Servicer...........................38
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS ANDALLOCATION AND APPLICATION OF COLLECTIONS...39
SECTION 4.01 Rights of Certificateholders........................39
SECTION 4.02 Establishment of the Collections Account and the
Excess Funding Account..............................40
SECTION 4.03 Collections and Allocations.........................41
SECTION 4.04 Establishment of the Interest Funding Account,
Series Principal Accounts, Distribution Accounts and
Other Series Accounts...............................43
SECTION 4.05 Servicer's Failure to Give Instructions.............44
SECTION 4.06 Perfected Interest in Eligible Investments..........45
ARTICLE V
DISTRIBUTIONS AND REPORTS TOINVESTOR CERTIFICATEHOLDERS.....................45
ARTICLE VI
THE INVESTOR CERTIFICATES...................................................45
SECTION 6.01 The Certificates....................................45
SECTION 6.02 Authentication of Certificates......................46
SECTION 6.03 Registration of Transfer and Exchange of Certificates46
SECTION 6.04 Mutilated, Destroyed, Lost or Stolen Certificates...48
SECTION 6.05 Persons Deemed Owners...............................48
SECTION 6.06 Appointment of Paying Agent.........................49
SECTION 6.07 Access to List of Investor Certificateholders' Names
and Addresses......................................49
SECTION 6.08 Authenticating Agent................................50
SECTION 6.09 New Issuances.......................................51
SECTION 6.10 Book-Entry Certificates.............................53
SECTION 6.11 Notices to Clearing Agency..........................54
SECTION 6.12 Definitive Certificates.............................54
SECTION 6.13 Global Certificate; Exchange Date...................55
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER........................................56
SECTION 7.01 Liability of Seller.................................56
SECTION 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller..........................56
SECTION 7.03 Limitation on Liability of Certain Persons..........57
SECTION 7.04 Seller Indemnification of the Master Trust and the
Master Trust Trustee................................58
SECTION 7.05 Seller Authorized to File Reports Pursuant to
SecuritiesExchange Act..............................58
SECTION 7.06 Other Indebtedness..................................58
SECTION 7.07 Corporate Actions; Amendment of Certificate of
Incorporation.......................................59
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER......................................59
SECTION 8.01 Servicer Liability..................................59
SECTION 8.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer........................59
SECTION 8.03 Limitation on Liability of the Servicer and Others..60
SECTION 8.04 Indemnification of the Master Trust and the Master
Trust Trustee.......................................60
SECTION 8.05 Servicer Resignation................................61
SECTION 8.06 Access to Certain Documentation and Information
Regarding the Dealer Notes..........................61
SECTION 8.07 Delegation of Duties................................61
SECTION 8.08 Examination of Records..............................62
ARTICLE IX
EARLY AMORTIZATION EVENTS...................................................62
SECTION 9.01 Early Amortization Events...........................62
SECTION 9.02. Additional Rights Upon the Occurrence of Certain
Events.............................................63
ARTICLE X
SERVICER TERMINATION EVENT..................................................64
SECTION 10.01 Servicer Termination Event..........................64
SECTION 10.02 Master Trust Trustee to Act; Appointment of
Successor Servicer..................................66
SECTION 10.03 Notification to Investor Certificateholders.........67
SECTION 10.04 Waiver of Past Breaches.............................67
ARTICLE XI
THE MASTER TRUST TRUSTEE....................................................68
SECTION 11.01 Duties of Master Trust Trustee.....................68
SECTION 11.02 Certain Matters Affecting the Master Trust Trustee..70
SECTION 11.03 Master Trust Trustee Not Liable for Recitals in
Certificates........................................71
SECTION 11.04 Master Trust Trustee May Not Own Investor
Certificates........................................71
SECTION 11.05 The Servicer to Pay Master Trust Trustee's
Fees and Expenses...................................71
SECTION 11.06 Eligibility Requirements for Master Trust Trustee...71
SECTION 11.07 Resignation or Removal of Master Trust Trustee......72
SECTION 11.08 Successor Master Trust Trustee......................72
SECTION 11.09 Merger or Consolidation of Master Trust Trustee.....73
SECTION 11.10 Appointment of Co-Master Trust Trustee or
Separate Master Trust Trustee.......................73
SECTION 11.11 Tax Returns.........................................74
SECTION 11.12 Master Trust Trustee May Enforce Claims
Without Possession of Certificates..................74
SECTION 11.13 Suits for Enforcement...............................75
SECTION 11.14 Representations and Warranties of Master Trust
Trustee.............................................75
SECTION 11.15 Maintenance of Office or Agency.....................75
SECTION 11.16 Requests for Agreement..............................76
ARTICLE XII
TERMINATION................................................................ 76
SECTION 12.01 Termination of Master Trust.........................76
SECTION 12.02 Optional Termination................................77
SECTION 12.03 Final Payment with Respect to any Series............77
SECTION 12.04 Seller's Termination Rights.........................79
ARTICLE XIII
MISCELLANEOUS PROVISIONS....................................................79
SECTION 13.01 Amendment...........................................79
SECTION 13.02 Protection of Right, Title and Interest to Master
Trust..............................................80
SECTION 13.03 Limitations on Rights of Certificateholders.........81
SECTION 13.04 GOVERNING LAW.......................................82
SECTION 13.05 Notices.............................................82
SECTION 13.06 Severability of Provisions..........................82
SECTION 13.07 Assignment..........................................83
SECTION 13.08 Certificates Nonassessable and Fully Paid...........83
SECTION 13.09 Further Assurances..................................83
SECTION 13.10 No Waiver; Cumulative Remedies......................83
SECTION 13.11 Counterparts........................................83
SECTION 13.12 Third-Party Beneficiaries...........................83
SECTION 13.13 Actions by Investor Certificateholders..............84
SECTION 13.14 No Petition.........................................84
SECTION 13.15 Merger and Integration..............................84
SECTION 13.16 Headings............................................84
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EXHIBITS
Exhibit A NFSC Certificate
Exhibit B Form of Seller's Officer's Certificate
Exhibit C Form of Initial Report
Exhibit D Form of Officer's Certificate provided by Servicer re Termination
Event
Exhibit E Form of Certificate of Foreign Clearing Agency
Exhibit F Form of Alternate Certificate to be delivered to Foreign Clearing
Agency
Exhibit G Form of Certificate to be delivered to Foreign Clearing Agency
Exhibit H Opinion of Counsel
Exhibit I Amended and Restated Certificate of Incorporation of NFSC
Exhibit J Amended and Restated Master Revolving Credit Agreement
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POOLING AND SERVICING AGREEMENT, dated as of June 8,
1995, by and among Navistar Financial Securities Corporation, a
Delaware corporation, as Seller, Navistar Financial Corporation,
a Delaware corporation, as Servicer, Chemical Bank, a New York
corporation, as 1990 Trust Trustee, and The Bank of New York, a
New York banking corporation, as Master Trust Trustee.
In consideration of the mutual agreements contained
herein, each party agrees as follows for the benefit of the other
parties and for the benefit of the Certificateholders:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Whenever used in this
Agreement, the following words and phrases shall have the
following meanings:
"1990 Trust" shall mean the trust created by the 1990
Trust Agreement.
"1990 Trust Accounts" means collectively the
Collections Account, the Interest Deposit Account, the
Certificate Principal Account, the Liquidity Reserve Account, the
Spread Account and the Distribution Account, in each case as
defined in and established under the 1990 Trust Agreement.
"1990 Trust Agreement" shall mean the Pooling and
Servicing Agreement, dated as of December 1, 1990, among NFC,
NFSC, and Chemical Bank (as successor to Manufacturers Hanover
Trust Company), as supplemented and amended from time to time.
"1990 Trust Investment Securities" shall mean
investments of 1990 Trust Principal Collections in Eligible
Investments necessary under the 1990 Trust Agreement to maintain
the 1990 Trust Seller Interest at an amount not less than the
Minimum 1990 Trust Seller Interest.
"1990 Trust Investor Certificate" shall mean, any one
of the certificates executed by the Seller and authenticated by
the 1990 Trust Trustee pursuant to the 1990 Trust Agreement.
"1990 Trust Principal Collections" shall mean, with
respect to any Due Period prior to the 1990 Trust Termination
Date, the sum of Dealer Note Collections and the aggregate amount
of proceeds of maturing 1990 Trust Investment Securities.
"1990 Trust Seller Certificate" shall mean the "Seller
Certificate" under, and as defined in, the 1990 Trust Agreement.
"1990 Trust Seller Interest" shall mean the "Seller
Interest" under, and as defined in, the 1990 Trust Agreement.
"1990 Trust Termination Date" shall mean the date,
which will be given retroactive effect, which is the last day of
the Due Period related to the Distribution Date under the 1990
Trust Agreement on which the Class Invested Amount (as defined in
the 1990 Trust Agreement) of each of the Class A-1, Class A-2 and
Class A-3 Investor Certificates (as defined in, and issued
pursuant to, the 1990 Trust Agreement) is reduced to zero.
"1990 Trust Trustee" shall mean Chemical Bank, a New
York corporation.
"Accumulation Period" shall have, with respect to each
Series, the meaning specified in the related Supplement.
"Active Trustee" shall mean (a) prior to the 1990 Trust
Termination Date, the 1990 Trust Trustee and (b) after the 1990
Trust Termination Date, the Master Trust Trustee.
"Advance" shall mean, for any Due Period, an advance to
the Collections Account by the Servicer of an amount equal to all
Dealer Finance Charges for such Due Period which have not been
paid by the related Transfer Date (other than the Uncollectible
Finance Charges for such Due Period).
"Advance Reimbursement" shall mean the reimbursement by
the Master Trust to the Servicer of an Advance, which shall occur
(i) when Unpaid Dealer Finance Charges are paid on the Dealer
Notes to which the Advance relates or, if earlier, (ii) when the
Servicer determines that it will be unable to recover Unpaid
Dealer Finance Charges on the Dealer Notes to which the Advance
relates.
"Agreement" shall mean this Pooling and Servicing
Agreement and all amendments hereof and supplements hereto.
"Aggregate NITC Earned Interest" shall mean, on any
Calculation Day or NITC Interest Transfer Date with respect to
any Due Period or any portion thereof, the aggregate amount of
NITC Earned Interest on all Non-Interest Bearing Dealer Notes
accrued during such Due Period.
"Aggregate NITC Future Due Interest" shall mean, on any
Calculation Day, the aggregate amount of NITC Future Due Interest
on all Non-Interest Bearing Dealer Notes.
"Amortization Period" shall mean, with respect to any
Series, the period for such Series designated as the Amortization
Period, the Early Amortization Period, the Accumulation Period,
or other amortization or accumulation period, in each case as
defined with respect to such Series in the related Supplement.
"Applicants" shall have the meaning specified in
Section 6.07.
"Appointment Date" shall have the meaning specified in
Section 9.02.
"Assignment" shall mean, with respect to any Business
Day, the assignment of Dealer Notes to the Master Trust on such
Business Day.
"Authenticating Agent" shall have the meaning specified
in Section 6.08.
"Authorized Newspaper" shall mean any newspaper or
newspapers of general circulation in New York City customarily
published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Bearer Certificates" shall have the meaning specified
in Section 6.01.
"Beneficiary" shall mean any of the holders of the
Investor Certificates and any Enhancement Provider.
"Book-Entry Certificates" shall mean certificates
evidencing a beneficial interest in the Investor Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 6.10;
provided, that after the occurrence of a condition whereupon
book-entry registration and transfer are no longer permitted and
Definitive Certificates are to be issued to the Certificate
Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" shall mean, unless otherwise defined
with respect to any Series in the related Supplement, any day
other than a Saturday, a Sunday or a day on which banking
institutions in New York, New York, Chicago, Illinois, or the
city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to be closed or
remain closed.
"Calculation Day" shall have the meaning specified in
the Interest Deposit Agreement.
"Cedel" shall mean Centrale de Livraison de Valeurs
Mobilieres S.A.
"Certificate" shall mean any one of the Investor
Certificates of any Series (or Class within a Series) or any one
of the Master Trust Seller's Certificates.
"Certificate Owner" shall mean, with respect to a
Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
"Certificate Register" shall mean the register
maintained pursuant to Section 6.03, providing for the
registration of the Certificates and transfers and exchanges
thereof.
"Certificateholder" or "Holder" shall mean an Investor
Certificateholder or a Person in whose name any one of the Master
Trust Seller's Certificates is registered.
"Certificateholders' Interest" shall have the meaning
specified in Section 4.01.
"Class" shall mean, with respect to any Series, any one
of the classes of Investor Certificates of that Series.
"Clearing Agency" shall mean an organization registered
as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker,
dealer, bank, other financial institution or other Person for
whom from time to time a Clearing Agency or Foreign Clearing
Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency or Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series,
the Closing Date specified in the related Supplement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Collections" shall mean (i) prior to the 1990 Trust
Termination Date, amounts distributed by the 1990 Trust to the
Master Trust as holder of any 1990 Trust Investor Certificate
issued to and held by the Master Trust or as assignee of the
Seller's rights under the 1990 Trust Agreement and (ii) after the
1990 Trust Termination Date, NITC Finance Charges, Dealer Finance
Charge Collections and Principal Collections.
"Collections Account" shall have the meaning specified
in Section 4.02.
"Common Depository" shall mean the Person specified in
the applicable Supplement, in its capacity as common depository
for the respective accounts of any Foreign Clearing Agencies.
"Corporate Trust Office" shall mean the principal
office of the Master Trust Trustee at which at any particular
time its corporate trust business shall be principally
administered, which office at the date of the execution of this
Agreement is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New
York, New York 10286, Attention: Corporate Trust Administration.
"Coupon" shall have the meaning specified in Section
6.01.
"Credit Guidelines" shall mean the policies and
procedures (i) relating to the operation of NFC's wholesale
floor-plan financing business, including, without limitation, the
written policies and procedures and the exercise of judgment by
NFC employees in accordance with NFC's normal practice for
determining the creditworthiness of Dealers and the extension of
floor-plan financing to Dealers, and (ii) relating to the
maintenance of dealer notes, as such policies and procedures may
be amended from time to time.
"Current Interest Rate" shall mean, with respect to any
Dealer Note during any Due Period, the interest rate on such
Dealer Note billed by NFC during such Due Period.
"Dealer" shall mean (i) a Person with whom NITC or an
affiliate of NITC has a valid dealer sales/maintenance agreement
to sell Navistar Vehicles (it being understood that any such
Person may also have an agreement with an OEM Supplier to sell
OEM Vehicles), (ii) a truck equipment manufacturer with whom NITC
has a valid agreement to sell NITC vehicles, (iii) a Person with
whom NFC has a valid agreement to extend used truck floor plan
terms, and "Dealer Agreement" shall mean any of the foregoing
agreements or (iv) a Person for whom NFC provides financing for
OEM Vehicles.
"Dealer Finance Charge Collections" shall mean, with
respect to any Due Period, the amount of Dealer Finance Charges
received from Dealers for such Due Period plus Advances deposited
in the Collections Account for such Due Period plus any Unpaid
Dealer Finance Charges or Uncollectible Finance Charges from
prior Due Periods, in each case to the extent actually collected
by the Transfer Date related to the relevant Due
Period.
"Dealer Finance Charges" shall mean, with respect to
any Due Period, the interest and other finance charges accrued
with respect to the Dealer Notes outstanding during such Due
Period and billed by the Servicer on a monthly basis to Dealers.
Dealer Finance Charges do not include NITC Finance Charges.
"Dealer Note" shall mean a promissory note acquired by
NFC to finance (i) a Navistar Vehicle or an OEM Vehicle purchased
by a Dealer or (ii) a used medium or heavy-duty truck or a new or
used trailer for which NFC chooses to provide financing to a
Dealer. When used herein, unless the context otherwise requires,
"Dealer Notes" shall refer to those Dealer Notes which are held
by the Master Trust.
"Dealer Note Collections" shall mean, with respect to
any Business Day, (i) all payments including Insurance Proceeds,
if any, received by the Servicer from Persons other than NFC in
respect of repayment of principal of the Dealer Notes at one of
its administrative units charged with processing funds and
recording them in the Servicer's records, in the form of cash,
checks, wire transfers or other forms of payment in accordance
with the Dealer Agreement in effect from time to time, (ii) all
cash payments made by NFC or NITC in respect of non-cash proceeds
received from Dealers or credits granted to Dealers by NITC with
respect to the repayment of principal of the Dealer Notes and
(iii) recoveries made by the Servicer allocable to the Dealer
Notes, in each case as deposited in the Collections Account on
such Business Day.
"Dealer Note Losses" shall mean, with respect to any
Due Period, the aggregate face amount of Dealer Notes written off
as uncollectible by the Servicer during such Due Period, minus
the amount of any recovery made during such Due Period on Dealer
Notes previously written off as uncollectible.
"Definitive Certificates" shall have the meaning
specified in Section 6.10.
"Definitive Euro-Certificates" shall have the meaning
specified in Section 6.13.
"Depository Agreement" shall mean the Letter of
Representations among the Seller, the Master Trust Trustee and
the initial Clearing Agency dated June 8, 1995.
"Determination Date" shall mean, with respect to any
Due Period, the twelfth day of each calendar month next following
the end of such Due Period, or if such twelfth day is not a
Business Day, the next Business Day thereafter.
"Distribution Account" shall have the meaning specified
in Section 4.04(b).
"Distribution Date" shall mean, with respect to any Due
Period, the twenty-fifth day of the calendar month next following
the end of such Due Period, or, if such twenty-fifth day is not a
Business Day, the next Business Day thereafter.
"Distribution Period" shall mean, with respect to any
Due Period, the one month period beginning on, and including, the
Distribution Date for the previous Due Period and ending on, and
including, the day immediately preceding the Distribution Date
for the current Due Period (except that the first Distribution
Period occurring after the 1990 Trust Termination Date will begin
on the 1990 Trust Termination Date and end on the day preceding
the first Distribution Date).
"Due Period" shall mean, unless otherwise defined with
respect to a Series in the related Supplement, a calendar month,
beginning on the first day of such month and ending on the last
day of such month. When used with respect to a Transfer Date,
Determination Date or Distribution Date, "Due Period" shall mean
the Due Period related to such Transfer Date, Determination Date
or Distribution Date, as the case may be.
"Early Amortization Event" shall have the meaning
specified in Section 9.01 and, with respect to any Series, shall
also mean any Early Amortization Event specified in the related
Supplement.
"Early Amortization Period" shall mean, with respect to
any Series, the period beginning at the close of business on the
Business Day immediately preceding the day on which the Early
Amortization Event is deemed to have occurred, and in each case
ending upon the first to occur of (a) the payment in full to the
Investor Certificateholders of such Series of the Series Invested
Amount with respect to such Series, (b) the Series Termination
Date with respect to such Series and (c) such other date, if
any, as may be set forth in the related Supplement.
"Eligible Dealer Note" shall mean each Dealer Note:
(a) which is payable in United States Dollars;
(b) which was created in compliance with all
Requirements of Law applicable to any member of the
Navistar Group the failure with which to comply would
have a material adverse affect upon Investor
Certificateholders;
(c) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required
to be obtained, effected or given by any member of the
Navistar Group in connection with the creation of such
Dealer Note or the execution, delivery and performance
by NITC or an OEM Supplier of the Dealer Agreement
pursuant to which such Dealer Note was created, have
been duly obtained, effected or given and are in full
force and effect as of such date of creation;
(d) as to which at all times following the
transfer of such Dealer Note to the Trust, the Master
Trust will have good and marketable title thereto free
and clear of all Liens arising prior to the transfer or
arising at any time under or through any member of the
Navistar Group;
(e) which will at all times be the legal, valid
and binding payment obligation of the Dealer obligated
thereunder enforceable against such Dealer in
accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting the
enforcement of creditors' rights in general and except
as such enforceability may be limited by general
principles of equity (whether considered in a suit at
law or in equity);
(f) which constitutes either an "account,"
"chattel paper," or "general intangible" under and as
defined in Article 9 of the UCC;
(g) which is not subject to any right of
rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury
laws) of the Dealer, other than defenses arising out of
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the
enforcement of creditors' rights in general and except
as such enforceability may be limited by general
principles of equity (whether considered in a suit at
law or equity);
(h) as to which, at the time of transfer of such
Dealer Note to the Master Trust, the Servicer has
satisfied all obligations required to be fulfilled on
its part with respect to such Dealer Note;
(i) as to which, at the time of transfer of such
Dealer Note to the Trust, the Servicer has not taken
nor failed to take any action which would impair the
rights of the Master Trust or the Certificateholders
therein;
(j) which, at the time of transfer of such Dealer
Note to the Master Trust, has not been issued by a
Dealer that is insolvent;
(k) which, at the time of transfer of such Dealer
Note to the Master Trust, has not been issued by a
Dealer that has been placed on cash-on-delivery terms
by the Servicer;
(l) which, at the time of transfer of such Dealer
Note to the Master Trust, is not past due over thirty
days;
(m) which has not been issued by a Dealer in
connection with such Dealer's purchase of parts from
NITC or an OEM Supplier;
(n) which, when the principal amount of such
Dealer Note is added to the principal amount of the
other outstanding Dealer Notes issued by the same
Dealer previously or concurrently transferred to the
Master Trust, shall not cause the sum of the principal
amounts of all such Dealer Notes to exceed the greater
of (1) $4,000,000 or (2) 2% of the sum of the aggregate
principal balance of Dealer Notes and the aggregate
principal amount of funds on deposit in the Excess
Funding Account as of the close of business on the
Business Day preceding the date on which such Dealer
Note is to be transferred to the Master Trust;
(o) which, in the case of an OEM Note, when the
principal amount of such OEM Note is added to the
principal amounts of the other outstanding OEM Notes
previously transferred to the Master Trust, shall not
cause the sum of such principal amounts to exceed 10%
(or any larger percentage as to which the Rating Agency
Condition has been satisfied) of the sum of the
aggregate principal balance of Dealer Notes and the
aggregate principal amount of funds on deposit in the
Excess Funding Account as of the close of business on
the Business Day preceding the date on which such
Dealer Note is to be transferred to the Master Trust;
(p) as to which a valid first priority security
interest in the Financed Vehicle has been transferred
to the Master Trust;
(q) as to which the Navistar Group has assigned
to the Master Trust designation as loss payee on the
insurance policies insuring the Financed Vehicle
against casualty and theft losses;
(r) the principal amount of which is due when the
related Financed Vehicle is sold;
(s) the interest rate of which (1) is based on
the prime rate or another benchmark floating interest
rate and (2) is subject to adjustment at least monthly;
(t) the principal amount of which (1) in the case
of a Financed Vehicle which is a new vehicle, is equal
to not more than one hundred percent of the invoice
price of such Financed Vehicle, (2) in the case of a
Financed Vehicle which is a used vehicle purchased by a
Dealer from a NITC used truck center or a repossessed
vehicle purchased from NFC, is equal to not more than
one hundred percent of the agreed upon purchase price,
and (3) in the case of a Financed Vehicle which is a
used or repossessed vehicle taken in trade by a Dealer
or purchased by a Dealer from outside sources, is equal
to not more than seventy-five percent of the "as is"
value of such Financed Vehicle as determined by NFC's
appraisal thereof;
(u) which was created in accordance with the
standard practice of the Navistar Group; and
(v) which finances a new or used medium or
heavy-duty truck, bus or trailer produced by or for a
member of the Navistar Group or an OEM Supplier.
"Eligible Deposit Account" shall mean either (a) a
segregated account with an Eligible Institution or (b) a
segregated trust account with the corporate trust department of a
depository institution organized under the laws of the United
States of America or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank),
having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of
such depository institution shall have a credit rating from each
Rating Agency in one of its generic rating categories which
signifies investment grade.
"Eligible Institution" shall mean (a) the corporate
trust department of the Master Trust Trustee or (b) a depository
institution organized under the laws of the United States of
America or any one of the states thereof, or the District of
Columbia (or any domestic branch of a foreign bank), which at all
times (i) has either (A) a long-term unsecured debt rating of A2
or better by Moody's and of AA- or better by Standard & Poor's or
(B) a certificate of deposit rating of P-1 by Moody's and A-1+ by
Standard & Poor's and (ii) whose deposits are insured by the
FDIC. If so qualified, the Master Trust Trustee may be
considered an Eligible Institution for the purposes of clause (b)
of this definition.
"Eligible Investments" shall mean
(a) book-entry securities, negotiable instruments or
securities represented by instruments in bearer or
registered form having (except in the case of clause
(iv) below) remaining maturities occurring not later
than the Distribution Date next succeeding the Master
Trust Trustee's acquisition thereof, except as
otherwise described herein or in the related
Supplement, that evidence:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United
States of America;
(ii) demand deposits, time deposits or
certificates of deposit of, or bankers'
acceptances issued by, any depository institution
or trust company incorporated under the laws of
the United States of America or any state thereof
(or any domestic branch of a foreign bank) and
subject to supervision and examination by federal
or state banking or depository institution
authorities; provided, however, that at the time
of the Master Trust's investment or contractual
commitment to invest therein, the commercial paper
or other short-term unsecured debt obligations
(other than any such obligation whose rating is
based on the credit of a person or entity other
than such depository institution or trust company)
of such depository institution or trust company
shall have a credit rating not lower than the
highest investment category for short term
unsecured debt obligations granted by the
applicable Rating Agency from each Rating Agency
then rating the affected Series of Investor
Certificates;
(iii)commercial paper having, at the time of the
Master Trust's investment or contractual
commitment to investment therein, a rating not
lower than the highest investment category for
short term unsecured debt obligations granted by
the applicable Rating Agency from each Rating
Agency then rating the affected Series of Investor
Certificates; or
(iv) except during an Investment Period,
investments in money market funds rated not lower
than the highest rating category from each of the
Rating Agencies then rating the Investor
Certificates or otherwise approved by such Rating
Agencies in writing; and
(b) any other investment consisting of a financial
asset that by its terms converts to cash within a
finite period of time, provided that the Rating Agency
Condition is satisfied.
Account, Excess Funding Account, Negative Carry Reserve Fund and
Liquidity Reserve Account will be subject to the following
additional restrictions: (x) no more than 20% of the aggregate
Eligible Investments in all such accounts collectively shall be
obligations of or investments in any single issuer (except that
such 20% limitation shall not apply to Eligible Investments of
the type specified in clause (a)(i)); and (y) each Eligible
Investment shall be denominated and be payable solely in U.S.
dollars, shall bear interest at a specified rate that is, or is
based upon, LIBOR or a commercial paper rate, shall entitle the
holder to a fixed principal amount at maturity and shall have a
yield that is not inversely or disproportionately affected by
changes in interest rates.
"Enhancement" shall mean the rights and benefits
provided to the Investor Certificateholders of any Series or
Class pursuant to any letter of credit, surety bond, cash
collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest
rate swap agreement or other similar arrangement. The
subordination of any Series or Class to any other Series or Class
or of the Master Trust Seller's Interest to any Series or Class
shall be deemed to be an Enhancement.
"Enhancement Agreement" shall mean any agreement,
instrument or document governing the terms of any Enhancement or
pursuant to which any Enhancement is issued or outstanding.
"Enhancement Provider" shall mean the Person providing
an Enhancement, other than any Certificateholders (including any
holders of the Master Trust Seller's Certificates) the
Certificates of which are subordinated to any Series or Class.
"Euroclear Operator" shall mean ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels office, as operator of the
Euroclear System.
"Excess Funding Account" shall have the meaning
specified in Section 4.02(b).
"Excess Interest Collections" shall mean, with respect
to any Due Period, the aggregate amount for all outstanding
Series which the related Supplements specify are to be treated as
"Excess Interest Collections" for such Due Period.
"Exchange Date" shall mean any date that is after the
Series Issuance Date, in the case of Definitive Euro-Certificates
in registered form, or upon presentation of certification of
non-United States beneficial ownership (as described in Section
6.13), in the case of Definitive Euro-Certificates in bearer form.
"FDIC" shall mean the Federal Deposit Insurance
Corporation, or any successor entity thereto.
"Final Master Trust Termination Date" shall have the
meaning specified in Section 12.01.
"Finance Charge Collections" shall mean, with respect
to any Due Period, the positive amount, if any, by which the sum
of Dealer Finance Charge Collections and NITC Finance Charges
exceeds Advance Reimbursements, in each case for such Due Period.
"Finance Charges" shall mean, with respect to any Due
Period, Dealer Finance Charges and NITC Finance Charges for such
Due Period; provided, that with respect to the first Due Period
to occur after the 1990 Trust Termination Date, Finance Charges
shall also include the accrued and unpaid finance charges on the
Dealer Notes conveyed to the Master Trust on the 1990 Trust
Termination Date.
"Financed Vehicle" shall mean any vehicle (including a
trailer) financed by a Dealer Note.
"Foreign Clearing Agency" shall mean Cedel and the
Euroclear Operator.
"Global Certificate" shall have the meaning specified
in Section 6.13.
"Governmental Authority" shall mean the United States
of America, any state or other political subdivision thereof.
"Ineligible Dealer Note" shall have the meaning
specified in Section 2.06(c).
"Initial Invested Amount" shall mean, with respect to
any Series, the amount stated in the applicable Supplement.
"Insolvency Event" shall mean any event specified in
Section 9.01(a) or 9.01(b).
"Insolvency Proceeds" shall have the meaning specified
in Section 9.02(b).
"Insurance Proceeds" shall mean any amounts recovered
by the Servicer pursuant to any casualty insurance policies
covering any Dealer with respect to Financed Vehicles.
"Interest Deposit Account" shall have the meaning
specified in the Interest Deposit Agreement.
"Interest Deposit Agreement" shall mean the Interest
Deposit Agreement, dated the date hereof, among NITC, the
Servicer and the Master Trust Trustee.
"Interest Funding Account" shall have the meaning
specified in Section 4.04(a).
"Interest Start Date" shall mean, with respect to any
Dealer Note which has been a Non-Interest Bearing Dealer Note,
the date on which such Dealer Note ceases to be a Non-Interest
Bearing Dealer Note.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
"Investment Event" shall mean, with respect to any
Series, any Investment Event specified in the related Supplement.
"Investment Income" shall mean, with respect to any
Series for any Due Period, the sum of (i) the product of (a) the
Series Allocation Percentage and (b) the income from the
investment of funds on deposit in the Excess Funding Account and
the Collections Account for such Due Period and (ii) income for
such Due Period from the investment of funds on deposit in any
Series Account which is allocable to the Investor
Certificateholders of such Series, to the extent provided in the
related Supplement.
"Investment Period" shall mean, with respect to any
Series, the period specified in the related Supplement.
"Investor Certificate" shall mean any one of the
certificates (including the Bearer Certificates, the Registered
Certificates or any Global Certificate) executed by the Seller
and authenticated by or on behalf of the Master Trust Trustee,
substantially in the form attached to the related Supplement,
other than the Master Trust Seller's Certificates.
"Investor Certificateholder" shall mean the Person in
whose name a Registered Certificate is registered in the
Certificate Register or the bearer of any Bearer Certificate (or
the Global Certificate, as the case may be) or Coupon.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, encumbrance, lien or other security interest or
agreement, including, without limitation, any conditional sale or
other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing;
provided, however, that liens for municipal or other local taxes
shall not be Liens if such taxes shall not at the time be due and
payable or if the Seller shall currently be contesting the
validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect
thereto.
"Liquidity Reserve Account" shall have the meaning
specified in the 1990 Trust Agreement.
"Majority Holders" shall have the meaning specified in
Section 2.07.
"Manager" shall mean the lead manager, manager or
co-manager or person performing a similar function with respect
to an offering of Definitive Euro-Certificates.
"Master Revolving Credit Agreement" shall have the
meaning specified in the Purchase Agreement.
"Master Revolving Note" shall have the meaning
specified in the Purchase Agreement.
"Master Trust" shall mean the trust created by this
Agreement, the corpus of which shall consist of the property
described in Sections 2.01 and 2.02 of this Agreement and such
other property as may be described in any Supplement.
"Master Trust Seller's Certificates" shall mean,
collectively, the NFSC Certificate and any outstanding
Supplemental Certificates.
"Master Trust Seller's Interest" shall mean, with
respect to any Business Day on or after the 1990 Trust
Termination Date, the aggregate principal amount of Dealer Notes,
plus the aggregate amount of funds on deposit in the Excess
Funding Account, plus the aggregate amount of funds on deposit in
all Series Principal Accounts (and funds being held for deposit
therein), each as of such Business Day, minus the Trust Invested
Amount on such Business Day (or as of the Distribution Date on or
immediately preceding such Business Day).
"Master Trust Trustee" shall mean the institution
executing this Agreement as Master Trust Trustee, or its
successor in interest, or any successor trustee appointed as
herein provided.
"Minimum 1990 Trust Seller Interest" shall mean the
"Minimum Seller Interest" under, and as defined in, the 1990
Trust Agreement.
"Minimum Master Trust Seller's Interest" shall mean the
aggregate of all Minimum Series Seller's Interests for all
outstanding Series.
"Minimum Series Seller's Interest" shall mean, with
respect to any Series, the amount stated in the related
Supplement.
"Monthly Servicer and Settlement Statement" shall have
the meaning specified in Section 3.04(b).
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Navistar Group" shall mean NIC, NITC, NFC, NFSC and
any other direct or indirect subsidiaries of NIC.
"Navistar Vehicle" shall mean any medium- or heavy-duty
truck produced by, or for, NITC or an affiliate of NITC and sold
by NITC to Dealers.
"New Vehicle Dealer Note" shall mean an outstanding
Dealer Note that was issued to finance the purchase of a new
vehicle.
"NFC" shall mean Navistar Financial Corporation, a
Delaware corporation.
"NFSC" shall mean Navistar Financial Securities
Corporation, a Delaware corporation.
"NFSC Certificate" shall mean the certificate executed
by the Seller and authenticated by the Master Trust Trustee,
substantially in the form of Exhibit A.
"NIC" shall mean Navistar International Corporation, a
Delaware corporation.
"NITC" shall mean Navistar International Transportation
Corp., a Delaware corporation.
"NITC Earned Interest" shall mean, on any Calculation
Day or NITC Interest Transfer Date with respect to any Dealer
Note that was a Non-Interest Bearing Dealer Note during the
related Due Period or any portion thereof, an amount equal to the
product of (i) the product of (a) the principal amount of such
Non-Interest Bearing Dealer Note and (b) the Current Interest
Rate and (ii) the quotient of (a) a number equal to the number of
days elapsed during the Due Period for which the Dealer Note is
outstanding and is a Non-Interest Bearing Dealer Note and (b) the
actual number of days in the related calendar year.
"NITC Finance Charges" shall mean, with respect to any
Due Period, the sum of (i) the amount of Up-Front Interest Credit
granted by NITC during such Due Period and (ii) the amount of
Aggregate NITC Earned Interest for such Due Period.
"NITC Future Due Interest" shall mean, with respect to
any Non-Interest Bearing Dealer Note on any Calculation Day, an
amount equal to the product of (i) the product of (a) the
principal amount of such Non-Interest Bearing Dealer Note and (b)
the Current Interest Rate and (ii) the quotient of (a) a number
equal to the number of days from and including the Calculation
Day to, but not including, the Interest Start Date for such
Dealer Note and (b) the actual number of days in the related
calendar year.
"NITC Interest Amount" shall have the meaning specified
in the Interest Deposit Agreement.
"NITC Interest Transfer Date" shall have the meaning
specified in the Interest Deposit Agreement.
"Non-Interest Bearing Dealer Note" shall mean any
Eligible Dealer Note during the time for which NITC is obligated
to pay or has paid interest on behalf of the Dealer that issued
such Dealer Note.
"OEM Note" shall mean a Dealer Note financing an OEM
Vehicle.
"OEM Supplier" shall mean any Person who sells OEM
Vehicles to a Dealer and who has entered into an agreement for
the benefit of NFC to repurchase new vehicle inventory from NFC
upon NFC's foreclosure upon such inventory owned by such Dealer
(subject to such customary conditions and limitations as are
acceptable to NFC).
"OEM Vehicle" shall mean a new medium or heavy duty
truck manufactured by, or for, a manufacturer other than NITC.
"Officer's Certificate" shall mean a certificate signed
by a Vice President (or officers holding offices with equivalent
or more senior responsibilities whose names appear on a list of
such officers furnished to the Master Trust Trustee by the
Servicer or Successor Servicer, as such list may be amended from
time to time) of the Servicer or any Successor Servicer, and
delivered to the Master Trust Trustee.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be counsel for or an employee of the Seller or
NFC or its affiliates, in a form reasonably acceptable to the
Master Trust Trustee.
"Paying Agent" shall mean any paying agent appointed
pursuant to Section 6.06 and shall initially be the 1990 Trust
Trustee. The Paying Agent shall at all times be the 1990 Trust
Trustee or a bank or trust company with a rating, or with a
parent with a rating, of BBB-/Baa3 or better from the Rating
Agencies.
"Person" shall mean an individual, a partnership or a
Corporation. The term "Corporation" for the purposes of the
preceding sentence only shall mean a corporation, joint stock
company, business trust or other similar association.
"Prefunding" shall mean the deposit of proceeds from
the issuance of a new Series of Certificates in the Excess
Funding Account in an amount necessary to prevent the amount of
the Master Trust Seller's Interest from being less than the
Minimum Master Trust Seller's Interest.
"Principal Collections" shall mean, with respect to any
Business Day after the 1990 Trust Termination Date, the sum of
Dealer Note Collections for such Business Day and the aggregate
principal amount of Eligible Investments in the Excess Funding
Account maturing on such Business Day.
"Principal Losses" shall mean, with respect to any Due
Period beginning after the 1990 Trust Termination Date, the sum
of (i) the Dealer Note Losses and (ii) the aggregate amount of
losses on the sale of Eligible Investments in the Excess Funding
Account.
"Principal Shortfall" shall mean, with respect to any
Series, the amount stated in the related Supplement.
"Principal Terms" shall mean, with respect to any
Series, the principal terms of such Series, which may include
without limitation: (a) the name or designation; (b) the initial
principal amount (or method for calculating such amount or, with
respect to any variable funding certificate, variations in
principal amount); (c) the rate of interest thereon (or method
for the determination thereof); (d) the payment date or dates and
the date or dates from which interest shall accrue; (e) the
method of allocating Collections to Investor Certificateholders;
(f) the designation of any Series Accounts and the terms
governing the operation of any such Series Accounts; (g) the
amount of the Servicing Fee allocable to such Series and the
Investor Certificateholders' portion thereof; (h) the issuer and
terms of any form of Enhancement with respect thereto; (i) the
terms of which the Investor Certificates of such Series may be
exchanged for Investor Certificates of another Series,
repurchased by the Seller or remarketed to other investors; (j)
the Series Termination Date; (k) the number of Classes of
Investor Certificates of such Series and, if more than one Class,
the rights and priorities of each such Class; (l) the extent to
which the Investor Certificates of such Series will be issuable
in temporary or permanent global form (and, in such case, the
depositary for such global certificate or certificates, the terms
and conditions, if any, upon which such global certificate may be
exchanged, in whole or in part, for Definitive Certificates, and
the manner in which any interest payable on a temporary or global
certificate will be paid); (m) whether the Investor Certificates
of such Series may be issued in bearer form and any limitations
imposed thereon; (n) the priority of such Series with respect to
any other Series; (o) whether such Series will be prefunded; and
(p) any other terms of such Series.
"Purchase Agreement" shall mean the Purchase Agreement
dated the date hereof between NFC and NFSC.
"Rating Agencies" shall mean, with respect to any
outstanding Series, any nationally recognized statistical rating
organization then maintaining a rating on such Series at the
Seller's request.
"Rating Agency Condition" shall mean, with respect to
any action relating to a Series, that each Rating Agency shall
have notified the Seller, the Servicer and the Master Trust
Trustee in writing that such action will not result in a
reduction or withdrawal of the rating of such outstanding Series.
"Record Date" shall mean, with respect to any Due
Period, the Business Day preceding the Distribution Date for such
Due Period.
"Registered Certificates" shall have the meaning
specified in Section 6.01.
"Requirements of Law" for any Person shall mean the
certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any requirement of any
law, rule or regulation or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local; provided, however,
that any such requirement shall not be deemed a Requirement of
Law if the enforcement of such requirement would not have a
material adverse effect upon the collectability of the Dealer
Notes taken as a whole.
"Responsible Officer" shall mean the Chairman or any
Vice Chairman of the Board of Directors of the Master Trust
Trustee, the Chairman or Vice Chairman of the Executive or
Standing Committee of the Board of Directors of the Master Trust
Trustee, the President, any Executive Vice President, Senior Vice
President, Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the Cashier,
any Assistant or Deputy Cashier, any Trust Officer or Assistant
Trust Officer, the Controller and any Assistant Controller or any
other officer of the Master Trust Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the
particular subject.
"Revolving Period" shall mean, with respect to any
Series, the period stated in the related Supplement.
"Schedule 1" shall mean the computer file, hard copy or
microfiche list delivered to the Master Trust Trustee pursuant to
Section 2.02(d) hereof which shall contain a true and complete
list of Dealer Notes conveyed to the Master Trust on the 1990
Trust Termination Date.
"Schedule 2" shall mean the schedule delivered to the
Master Trust Trustee pursuant to Section 2.02(d) indicating the
amount of cash held in the 1990 Trust Accounts and conveyed to
the Master Trust Trustee on the 1990 Trust Termination Date.
"Seller" shall mean NFSC.
"Series" shall mean any series of Investor Certificates.
"Series Account" shall mean any deposit, trust, escrow,
reserve or similar account maintained for the benefit of the
Investor Certificateholders of any Series of Class, as specified
in any Supplement.
"Series Adjusted Invested Amount" shall mean, with
respect to any outstanding Series, the Adjusted Invested Amount
stated in the related Supplement.
"Series Allocation Percentage" shall mean, with respect
to any Series and for any Due Period, the percentage equivalent
of a fraction, the numerator of which is the Series Adjusted
Invested Amount for such Series and the denominator of which is
the Trust Adjusted Invested Amount, in each case as of the end of
the Distribution Date preceding such Due Period (after giving
effect to all payments made on such Distribution Date).
"Series Invested Amount" shall have, with respect to
any Series, the meaning stated in the related Supplement.
"Series Issuance Date" shall mean, with respect to any
Series, the date on which the Investor Certificates of such
Series are to be originally issued in accordance with Section
6.09 and the related Supplement.
"Series Principal Account" shall have the meaning
specified in Section 4.04(a).
"Series Termination Date" shall mean, with respect to
any Series, the date specified in the applicable Supplement.
"Servicer" shall mean initially NFC and thereafter any
Person appointed as the Successor Servicer as herein provided to
service the Dealer Notes pursuant to Section 10.02.
"Servicer Termination Event" shall have the meaning
specified in Section 10.01.
"Servicing Fee" shall have the meaning specified in
Section 3.02.
"Servicing Officer" shall mean any employee of the
Servicer involved in, or responsible for, the administration and
servicing of the Dealer Notes whose name appears on a list of
servicing officers furnished to the Master Trust Trustee by the
Servicer, as such list may from time to time be amended.
"Shared Principal Collections" shall mean, with respect
to any Business Day, the aggregate amount for all outstanding
Series of Principal Collections which the related Supplements
specify are to be treated as "Shared Principal Collections" for
such Business Day.
"Special Servicer Agent" with respect to a Series, if
any, shall have the meaning specified in the related Supplement.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Group.
"Successor Servicer" shall have the meaning specified
in Section 10.02(a).
"Supplement" shall mean, with respect to any Series, a
supplement to this Agreement executed and delivered in connection
with the original issuance of the Investor Certificates of such
Series pursuant to Section 6.09, and all amendments thereof and
supplements thereto.
"Supplemental Certificate" shall have the meaning
specified in Section 6.09.
"Tax Opinion" shall mean, with respect to any action,
an opinion of counsel to the effect that, for Federal income tax
purposes, (a) such action will not adversely affect the
characterization of the Investor Certificates of any outstanding
Series or Class as debt or as a partnership interest, as
applicable, and (b) such action will not cause or constitute a
taxable event with respect to any Investor Certificateholders or
the Master Trust or cause the Master Trust to be treated as an
association (or publicly traded partnership) taxable as a
corporation.
"Tax Sharing Agreement" shall mean the Tax Allocation
Agreement effective as of October 1, 1981 of NITC (formerly known
as International Harvester Company) as the same has been and may
be amended from time to time.
"Termination Notice" shall have the meaning specified
in Section 10.01(e).
"Transfer Agent" shall have the meaning specified in
Section 6.03(a).
"Transfer Date" shall mean, with respect to any Due
Period, the Business Day preceding the Distribution Date for such
Due Period.
"Trust Adjusted Invested Amount" shall mean, at any
time of determination, the sum of the Series Adjusted Invested
Amounts for all outstanding Series at such time.
"Trust Invested Amount" shall mean, at any time of
determination, the sum of the Series Invested Amounts for all
outstanding Series at such time.
"UCC" shall mean the Uniform Commercial Code, as
amended from time to time, as in effect in the states of
Illinois, New York and Delaware, unless specified otherwise.
"Uncollectible Finance Charges" shall mean, with
respect to any Due Period, the amount of Dealer Finance Charges
that the Servicer, on or before the related Determination Date,
determines in its sole discretion will be uncollectible.
"Unpaid Dealer Finance Charges" shall mean, with
respect to any Due Period, the amount of Dealer Finance Charges
that are not collected by the Servicer by the related Transfer
Date.
"Up-Front Interest Credit" shall mean, with respect to
any Due Period or portion thereof, an amount equal to the
aggregate amount of interest credits granted to Dealers by NITC
during such Due Period with respect to Eligible Dealer Notes.
"Used Vehicle Dealer Note" shall mean an outstanding
Dealer Note that was issued to finance a used vehicle for resale
by a Dealer.
"Variable Funding Certificates" shall mean a Series of
Investor Certificates, in one or more Classes, issued pursuant to
Section 6.09 and a Variable Funding Supplement hereto.
"Variable Funding Supplement" shall mean a Supplement
executed in connection with the issuance of Variable Funding
Certificates.
SECTION 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting
terms not defined in Section 1.01, and accounting terms partly
defined in Section 1.01 to the extent not defined, shall have the
respective meanings given to them under generally accepted
accounting principles in effect on the date hereof. To the
extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein
shall control.
(c) All references to "dealer notes" shall refer to
dealer notes issued by Dealers with respect to used vehicles or
dealer notes issued by Dealers to NITC or NFC with respect to new
vehicles purchased by such Dealers either from NITC or from an
OEM Supplier.
(d) All references to property held, owned or acquired
by the Master Trust shall include property held, owned or
acquired by the Master Trust Trustee, as trustee hereunder.
(e) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement; references to any Article, Section or Exhibit
are references to Articles, Sections and Exhibits in or to this
Agreement unless otherwise specified; and the term "including"
means "including without limitation."
(f) With respect to any Distribution Date or Transfer
Date, the "related Due Period," and the "related Distribution
Period," will mean the Due Period and Distribution Period
respectively, immediately preceding such Distribution Date or
Transfer Date, and the relationships between Due Periods and
Distribution Periods will be correlative to the foregoing
relationships.
(g) Each defined term used in this Agreement has a
comparable meaning when used in its plural or singular form.
Each gender-specific term used in this Agreement has a comparable
meaning whether used in a masculine, feminine or gender-neutral
form.
ARTICLE II
CONVEYANCE OF 1990 TRUST SELLER CERTIFICATE;
CONVEYANCE OF DEALER NOTES
SECTION 2.01 Conveyance of 1990 Trust Seller's
Certificate and Other Assets. By execution of this Agreement,
the Seller does hereby sell, transfer, assign, setover and
otherwise convey, without recourse (except as otherwise expressly
provided herein), to the Master Trust for the benefit of the
Certificateholders and the other Beneficiaries all right, title
and interest of the Seller in and to (i) the 1990 Trust Seller's
Certificate, and all monies due or to become due with respect
thereto and all proceeds (as defined in Section 9-306 of the UCC)
thereof and (ii) all other rights of the Seller under the terms
of the 1990 Trust Agreement (including, without limitation, the
right to exchange the 1990 Trust Seller Certificate pursuant to
Section 6.12 of the 1990 Trust Agreement, the right to receive
distributions and other payments from the 1990 Trust, the rights
of the Seller upon termination of the 1990 Trust pursuant to
Section 12.04 of the 1990 Trust Agreement and the right to
receive funds on deposit in the Liquidity Reserve Account). If
such sale, transfer, assignment, set-over or conveyance is deemed
to create a security interest in such property, the Seller does
hereby grant to the Master Trust a security interest therein
(which shall be deemed to be a first perfected security
interest) and agrees that this Agreement shall constitute a
security agreement under applicable law.
SECTION 2.02 Conveyance of Dealer Notes and Other
Property.
(a) Effective as of the 1990 Trust Termination Date,
the Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Master Trust for the benefit of the
Certificateholders and the other Beneficiaries, without recourse
(subject to the obligations herein):
(i) all right, title, and interest of the Seller
in and to the Dealer Notes held by the Seller as of the
1990 Trust Termination Date, all monies due (including
accrued finance charges) or to become due with respect
thereto and all proceeds (as defined in Section 9-306
of the UCC) of such Dealer Notes;
(ii) the interest of the Seller in the security
interests in the Financed Vehicles related to such
Dealer Notes granted by Dealers pursuant to the Dealer
Agreements and any accessions to such security
interests; and
(iii) the interest of the Seller in the related
Insurance Proceeds.
(b) Effective as of the 1990 Trust Termination Date,
the 1990 Trust Trustee hereby sells, transfers, assigns, sets
over and otherwise conveys to the Master Trust for the benefit of
the Certificateholders and the other Beneficiaries, without
recourse (subject to the obligations herein):
(i) all right, title and interest of the 1990
Trust in and to the Dealer Notes held by the 1990 Trust as
of the 1990 Trust Termination Date, all monies due
(including accrued finance charges) or to become due with
respect thereto and all proceeds (as defined in Section
9-306 of the UCC) of such Dealer Notes;
(ii) the interest of the 1990 Trust in the
security interests in the Financed Vehicles related to such
Dealer Notes granted by Dealers pursuant to the Dealer
Agreements and any accessions to such security interests;
(iii)the interest of the 1990 Trust in the related
Insurance Proceeds;
(iv) 1990 Trust Investment Securities;
(v) funds on deposit in the 1990 Trust Accounts
(other than funds on deposit for the benefit of, and
allocated to, 1990 Trust Investor Certificates that are not
held by the Master Trust); and
(vi) any of Seller's repurchase obligations
pursuant to Section 2.05(a) of the 1990 Trust Agreement.
Notwithstanding the provisions of Section 12.04 of the 1990 Trust
Agreement, the Seller hereby directs the 1990 Trust Trustee to
effect the conveyances to the Master Trust described above. The
parties hereto agree that prior to the 1990 Trust Termination
Date, the 1990 Trust Trustee shall have no duties or obligations
hereunder and that upon the sale, transfer, assignment, setover
and conveyance to the Master Trust as of the 1990 Trust
Termination Date of the property described above and acceptance
thereof by the Master Trust Trustee, the 1990 Trust Trustee shall
be terminated as a party to, and have no further obligations or
interests under, this Agreement.
(c) Effective on and after the 1990 Trust Termination
Date, except as otherwise provided in this Agreement or any
Supplement, the Servicer, on behalf of the Master Trust, shall
effect an Assignment on each Business Day from the Seller to the
Master Trust, without recourse, of:
(i) all right, title, and interest of the Seller
in and to all Dealer Notes existing on such Business
Day that are owned by the Seller and are identified by
the Servicer as Eligible Dealer Notes, all monies due
(including accrued finance charges) or to become due
with respect thereto and all proceeds (as defined in
Section 9-306 of the UCC) of such Dealer Notes;
(ii) the interest of the Seller in the security
interests in the Financed Vehicles related to such
Dealer Notes granted by Dealers pursuant to the Dealer
Agreements and any accessions to such security
interests; and
(iii)the interest of the Seller in the related
Insurance Proceeds.
The Servicer shall deliver to the Master Trust Trustee a computer
file, hard copy or microfiche list containing a true and complete
list of all Dealer Notes acquired on such Business Day, which
computer file, hard copy or microfiche list shall be deemed to be
an amendment, as of such Business Day, to Schedule 1 hereto and
shall be deemed to be an identification of the listed Dealer
Notes as Eligible Dealer Notes for purposes of clause (c)(i)
above. The Servicer shall effect such Assignments until the
first to occur of (i) an Insolvency Event (provided, however,
that if any of the events described in Section 9.01 (b) has
occurred and is unremedied, and if the 120-day period described
therein has not passed, no Assignments will take place until such
predicate event is remedied), (ii) the Final Master Trust
Termination Date and (iii) the date specified in a notice which
the Seller (or the Servicer on behalf of the Seller) delivers to
the Master Trust Trustee stating that the Seller will no longer
sell Dealer Notes to the Master Trust.
(d) In connection with the transfers set forth in
clauses (a), (b) and (c) of this Section 2.02, the Seller further
agrees, at its own expense, (i) as of the 1990 Trust Termination
Date and on each Business Day thereafter, to cause NFC as agent
of the Seller to indicate in NFC's computer files that Dealer
Notes have been sold to the Master Trust pursuant to this
Agreement for the benefit of the Certificateholders, and (ii) as
of the 1990 Trust Termination Date, to deliver Schedule 1 and
Schedule 2 to the Master Trust Trustee.
(e) If the sales, transfers, assignments, set-overs or
conveyances described in clauses (a), (b) or (c) of this Section
2.02 are deemed to create a security interest in such property,
the Seller or the 1990 Trust Trustee, as the case may be, does
hereby grant to the Master Trust a security interest therein
(which shall be deemed to be a first perfected security
interest), and agrees that this Agreement shall constitute a
security agreement under applicable law. Neither the Master
Trust Trustee nor the 1990 Trust Trustee shall be under any
obligation whatsoever to file such financing or continuation
statements or to make any other filing under the UCC in
connection with such sale and assignment.
SECTION 2.03 Acceptance by Master Trust Trustee.
(a) The Master Trust Trustee hereby undertakes to
perform its obligations as set forth herein. The Master Trust
Trustee hereby acknowledges its acceptance on behalf of the
Master Trust of all right, title and interest previously held by
the Seller in and to the 1990 Trust Seller's Certificate and the
other rights conveyed by the Seller pursuant to Section 2.01 as
of the date of this Agreement and declares that it shall maintain
such right, title and interest, upon the trust herein set forth,
for the benefit of all Certificateholders. The Master Trust
Trustee further agrees (i) as of each Series Issuance Date, to
(A) deliver the 1990 Trust Seller Certificate to the 1990 Trust
Trustee, and (B) accept in exchange therefor one or more newly
issued classes of 1990 Trust Investor Certificates and a reissued
1990 Trust Seller Certificate, and (ii) as of the 1990 Trust
Termination Date to (A) deliver the 1990 Trust Seller Certificate
and any 1990 Trust Investor Certificates held by the Master Trust
to the 1990 Trust Trustee for cancellation and (B) accept on
behalf of the Master Trust (and to acknowledge such acceptance on
the 1990 Trust Termination Date) all right, title and interest
previously held by the Seller or the 1990 Trust, as the case may
be, in and to the Dealer Notes existing as of the 1990 Trust
Termination Date and conveyed pursuant to Section 2.02 and
thereafter purchased by or assigned to the Master Trust, all
monies due or to become due with respect thereto and all proceeds
thereof, the interest in the security interests in the related
Financed Vehicles, the interest in the Insurance Proceeds and the
cash on deposit in the 1990 Trust Accounts and indicated on
Schedule 2, and declares that it shall maintain such right, title
and interest, upon the trust herein set forth, for the benefit of
all Certificateholders. Except to the extent expressly provided
otherwise herein, the Master Trust shall maintain physical
possession of the 1990 Trust Seller Certificate and each 1990
Trust Investor Certificate delivered to it hereunder.
(b) The obligation of the Master Trust Trustee to
accept:
(i) the 1990 Trust Seller Certificate and the
other rights conveyed pursuant to Section 2.01 shall be
subject to the condition that the Seller delivers the
1990 Trust Seller Certificate to the Master Trust
Trustee and records and files, at its own expense, one
or more financing statements with respect to the 1990
Trust Seller Certificate and such other rights meeting
the requirements of Illinois, New York and Delaware law
in such manner as is necessary to perfect the sale and
assignment of the 1990 Trust Seller Certificate to the
Master Trust;
(ii) any 1990 Trust Investor Certificate issuable
to the Master Trust shall be subject to the condition
that the Seller delivers the 1990 Trust Investor
Certificate to the Master Trust Trustee and takes any
further actions as may be necessary to perfect the sale
and assignment of such 1990 Trust Investor Certificate
to the Master Trust; and
(iii)Dealer Notes on the 1990 Trust Termination
Date pursuant to Section 2.02 shall be subject to the
condition that the Seller (A) assigns the financing
statements in effect under the 1990 Trust with respect
to such Dealer Notes meeting the requirements of
Illinois, New York and Delaware law in such manner as
is necessary to release the security interests of the
1990 Trust in any Dealer Notes (whether then existing
or to be acquired thereafter), all monies due or to
become due with respect thereto and all proceeds
thereof, the interest in the security interests in the
related Financed Vehicles and the interest in the
Insurance Proceeds and vest such security interests in
the Master Trust on or prior to the 1990 Trust
Termination Date and (B) records and files, at its own
expense, one or more financing statements with respect
to the Dealer Notes then existing and thereafter
purchased by or assigned to the Master Trust, for the
sale of accounts, general intangibles or chattel paper
as defined in Sections 9-105 and 9-106 of the UCC
meeting the requirements of Illinois, New York and
Delaware law in such manner as is necessary to perfect
the sale and assignment of such Dealer Notes, all
monies due or to become due with respect thereto and
all proceeds thereof, the interest in the security
interests in the related Financed Vehicles and the
interest in the Insurance Proceeds to the Master Trust
on or prior to the Closing Date of the issuance of the
first Series issued hereunder. The Seller shall
deliver a file-stamped copy of such termination
statements and financing statements or other evidence
of such filings to the Master Trust Trustee on or prior
to the 1990 Trust Termination Date or such Closing
Date, as the case may be.
(c) The Master Trust Trustee hereby agrees not to
disclose to any Person any of the information contained in
Schedule 1 or delivered to the Master Trust Trustee by the Seller
pursuant to Sections 2.01 or 2.02, except (i) as is required in
connection with the performance of its duties hereunder or in
enforcing the rights of the Certificateholders, (ii) to a
Successor Servicer appointed pursuant to Section 10.02 or (iii)
as required by law. The Master Trust Trustee agrees to protect
and maintain the security and confidentiality of such
information, and in connection therewith, shall allow the Seller
to inspect the Master Trust Trustee's security and
confidentiality arrangements from time to time during normal
business hours. The Master Trust Trustee shall provide the
Seller with written notice five days prior to any disclosure
pursuant to this Section 2.03(c).
(d) The Master Trust Trustee shall have no power to
create, assume or incur indebtedness or other liabilities in the
name of the Certificateholders or the Master Trust other than as
contemplated in this Agreement.
SECTION 2.04 Representations and Warranties of the
Seller Relating to the Seller. The Seller hereby represents and
warrants to the Master Trust Trustee, on behalf of the Master
Trust, with respect to the 1990 Trust Seller Certificate and any
1990 Trust Investor Certificate issued to the Master Trust, as of
the date of this Agreement and the date any such 1990 Trust
Investor Certificate is issued, and with respect to any Investor
Certificates, as of the date of any Supplement, the Closing Date
or Series Issuance Date, as the case may be, and the 1990 Trust
Termination Date, unless otherwise stated in such Supplement,
that:
(a) Organization and Good Standing. The Seller has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, and has
full corporate power and authority to execute, deliver and
perform its obligations under this Agreement and any Supplement
and to deliver to the Master Trust Trustee pursuant hereto the
1990 Trust Seller Certificate and any 1990 Trust Investor
Certificate issued to the Master Trust and to execute and deliver
to the Master Trust Trustee pursuant hereto the Certificates and,
in all material respects, to own its property and conduct its
business as such properties are presently owned and such business
is presently conducted.
(b) Due Authorization. The execution, delivery and
performance of this Agreement and any Supplement, and the
delivery to the Master Trust Trustee of the 1990 Trust Seller
Certificate and any 1990 Trust Investor Certificate issued to the
Master Trust, and the execution and delivery to the Master Trust
Trustee of the Certificates by the Seller have been duly
authorized by all necessary corporate action on the part of the
Seller.
(c) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
threatened against the Seller, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement,
any Supplement, the 1990 Trust Seller Certificate, any 1990 Trust
Investor Certificate issued to the Master Trust or the
Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Supplement, (iii) seeking
any determination or ruling that, in the reasonable judgment of
the Seller, would materially and adversely affect the performance
by the Seller of its obligations under this Agreement or any
Supplement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
this Agreement, any Supplement, the 1990 Trust Seller
Certificate, any 1990 Trust Investor Certificate issued to the
Master Trust or the Certificates, or (v) seeking to affect
adversely the income tax attributes of the Master Trust under the
United States federal, Illinois, Delaware or New York income tax
systems.
(d) No Violation. The execution and delivery of this
Agreement and any Supplement and the Certificates, the
performance of the transactions contemplated by this Agreement
and any Supplement and the fulfillment of the terms hereof, do
not and will not conflict with any material provision of the
Certificate of Incorporation or By-Laws of the Seller, and do not
and will not conflict with, violate, result in any breach of any
of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under
any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Seller is a party or by which it or
its properties is bound, or, to the best of Seller's knowledge,
any Requirement of Law applicable to the Seller.
(e) All Consents Required. All approvals,
authorizations, consents, orders, registrations or other actions
of any Person or of any governmental body or official required in
connection with the execution and delivery by the Seller of this
Agreement, the 1990 Trust Seller Certificate and the
Certificates, the performance by the Seller of the transactions
contemplated by this Agreement and the fulfillment by the Seller
of the terms hereof, have been obtained; provided, however, that
the Seller makes no representation or warranty regarding state
securities or "Blue Sky" laws in connection with the distribution
of the Certificates.
The representations and warranties set forth in this
Section 2.04 shall survive the transfer and assignment to the
Master Trust of the 1990 Trust Seller Certificate and the Dealer
Notes, respectively, and the termination of the rights and
obligations of the Servicer pursuant to Section 10.01. Upon
discovery by the Seller, the Servicer, the 1990 Trust Trustee or
the Master Trust Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach
shall give prompt written notice to the others.
SECTION 2.05 Representations and Warranties of the
Seller Relating to the Agreement and any Supplement and to the
Dealer Notes.
(a) Representations and Warranties. The Seller hereby
represents and warrants to the Master Trust Trustee, on behalf of
the Master Trust, with respect to the 1990 Trust Seller
Certificate and any 1990 Trust Investor Certificate issued to the
Master Trust, as of the date of this Agreement and the date any
such 1990 Trust Investor Certificate is issued and, with respect
to any Investor Certificates, as of the date of any Supplement,
the Closing Date or Series Issuance Date, as the case may be, and
the 1990 Trust Termination Date, unless otherwise stated in such
Supplement, and, with respect to matters involving Assignments,
as of the date of such Assignment, that:
(i) each of the 1990 Trust Agreement, this
Agreement, and any Supplement or Assignment,
constitutes a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance
with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of
creditors' rights in general and except as such
enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or
in equity);
(ii) as of the 1990 Trust Termination Date,
Schedule 1 to this Agreement and, as of the date of any
Assignment, any update thereto, will be an accurate and
complete listing in all material respects of all the
Dealer Notes as of the 1990 Trust Termination Date or
the date of the Assignment, as the case may be, and the
information contained therein with respect to the
identity of such Dealer Notes is and will be true and
correct in all material respects as of such applicable
date;
(iii)the 1990 Trust Seller Certificate is
conveyed, and any 1990 Trust Investor Certificate
issued to the Master Trust is transferred, to the
Master Trust free and clear of any Lien (except as
otherwise provided in the 1990 Trust Agreement);
(iv) this Agreement either constitutes a valid
transfer and assignment to the Master Trust of all
right, title and interest of the Seller or the 1990
Trust, as the case may be, in the 1990 Trust Seller
Certificate and the other rights conveyed pursuant to
Section 2.01 or any 1990 Trust Investor Certificate
issued to the Master Trust or, if this Agreement does
not constitute a valid transfer and assignment of such
property, it constitutes a grant of a "security
interest" (as defined in the UCC) in such property to
the Master Trust, which, in the case of the 1990 Trust
Seller Certificate and the other rights conveyed
pursuant to Section 2.01, is enforceable upon execution
and delivery of this Agreement, and which will be
enforceable with respect to any 1990 Trust Investor
Certificates hereafter issued to the Master Trust upon
such issuance. Upon delivery of the 1990 Trust Seller
Certificate to the Master Trust and the filing of any
financing statements described in Section 2.03(b)(i)
and, in the case of any 1990 Trust Investor Certificate
hereafter issued and delivered to the Master Trust,
upon such issuance and delivery and the filing of any
financing statements described in Section 2.03(b)(ii),
the Master Trust shall have a first priority perfected
security or ownership interest in such property;
(v) each Dealer Note conveyed to the Master Trust
by the Seller on the 1990 Trust Termination Date or on
the date of any Assignment, as the case may be, is
conveyed to the Master Trust free and clear of any Lien;
(vi) with respect to each Dealer Note conveyed to
the Master Trust by the Seller on the 1990 Trust
Termination Date or on the date of any Assignment, all
consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental
Authority required to be obtained, effected or given by
the Seller in connection with the conveyance of such
Dealer Note to the Master Trust have been duly
obtained, effected or given and are in full force and
effect;
(vii)this Agreement or the appropriate Assignment,
as the case may be, either constitutes a valid transfer
and assignment to the Master Trust of all right, title
and interest of the Seller or the 1990 Trust, as the
case may be, in the Dealer Notes and the proceeds
thereof or, if this Agreement or such Assignment does
not constitute a valid transfer and assignment of such
property, it constitutes a grant of a "security
interest" (as defined in the UCC) in such property to
the Master Trust, which, in the case of existing Dealer
Notes and the proceeds thereof, is enforceable upon
execution and delivery of this Agreement, and which
will be enforceable with respect to such Dealer Notes
hereafter acquired by, or assigned to the Master Trust
pursuant to an Assignment, upon such Assignment. Upon
the filing of any financing statements described in
Section 2.03(b)(ii) and, in the case of the Dealer
Notes hereafter created or transferred to the Master
Trust and the proceeds thereof, upon the creation or
transfer thereof, the Master Trust shall have a first
priority perfected security or ownership interest in
such property;
(viii) as of the 1990 Trust Termination Date,
each Dealer Note held by the Seller and to be
transferred to the Master Trust on such date, or as of
the date of any Assignment, each Dealer Note existing
on such date, is an Eligible Dealer Note in all
material respects;
(ix) as of the date of any Assignment, the Seller
is not insolvent;
(x) the Seller is not making any transfer
hereunder with the intent to defraud its creditors; and
(xi) the Seller is receiving reasonably
equivalent value for the Dealer Notes transferred by it
hereunder.
(b) Notice of Breach. The representations and
warranties set forth in this Section 2.05 shall survive the
transfer and assignment of the 1990 Trust Seller Certificate and
other rights of the Seller under the 1990 Trust Agreement, any
1990 Trust Investor Certificate and the Dealer Notes,
respectively, to the Master Trust. Upon discovery by the Seller,
the Servicer, the 1990 Trust Trustee or the Master Trust Trustee
of a breach of any of the representations and warranties set
forth in this Section 2.05, the party discovering such breach
shall give prompt written notice to the others.
SECTION 2.06 Transfer of Ineligible Dealer Notes.
(a) In the event of a breach with respect to a Dealer
Note of any representations and warranties set forth in Section
2.05(a)(v) or in the event that a Dealer Note is not an Eligible
Dealer Note as a result of the failure to satisfy any of the
conditions set forth in clauses (d) and (j) through (u) of the
definition of Eligible Dealer Note, each such Dealer Note shall
be automatically removed from the Master Trust on the terms and
conditions set forth below.
(b) In the event of a breach of any representations
and warranties set forth in Section 2.05(a)(vi), 2.05(a)(vii) or
2.05(a)(ix) or in the event any Dealer Note is not an Eligible
Dealer Note as a result of the failure to satisfy any of the
conditions set forth in clauses (a) through (c) and (e) through
(i) of the definition of Eligible Dealer Note, and as a result of
such breach or event the Master Trust's rights in, to or under
such Dealer Note or its proceeds are impaired or the proceeds of
such Dealer Note are not available for any reason to the Master
Trust free and clear of any Lien, then, upon the expiration of 60
days from the earlier to occur of the discovery of any such event
by the Seller, or receipt by the Seller of written notice of any
such event given by the Master Trust Trustee, each such Dealer
Note shall be removed from the Master Trust on the terms and
conditions set forth in Section 2.06(c); provided, however, that
no such removal shall be required to be made with respect to a
Dealer Note which is not an Eligible Dealer Note if, on any day
within such applicable period, such representations and
warranties with respect to such Dealer Note shall then be true
and correct, or the conditions in such clauses shall then be
satisfied, in all material respects as if such Dealer Note had
been created on such day.
(c) When removal of a Dealer Note is required pursuant
to Sections 2.06(a) or 2.06(b) above (any such Dealer Note being
an "Ineligible Dealer Note"), such Ineligible Dealer Note shall,
when the Seller makes the deposit referred to below, be
automatically removed from the Master Trust and the principal
balance of such Ineligible Dealer Note shall be deducted from the
prior principal balance of Dealer Notes in the Master Trust. The
Seller shall deposit in the Collections Account within two
Business Days of the day its removal is required an amount equal
to the principal amount of such Ineligible Dealer Note plus
accrued but unpaid finance charges thereon. Such deposit shall
be considered a payment in full of the Ineligible Dealer Note and
shall be applied as a Principal Collection in accordance with
Section 4.03. Upon each removal of an Ineligible Dealer Note
from the Master Trust, the Master Trust Trustee shall
automatically and without further action be deemed to transfer,
assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty (except for the warranty
that since the date of transfer by the Seller under this
Agreement the Master Trust Trustee has not sold, transferred or
encumbered such Ineligible Dealer Note), all the right, title and
interest of the Master Trust in and to such Ineligible Dealer
Note, all monies due or to become due with respect thereto and
all proceeds thereof. The Master Trust Trustee shall execute
such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by the Seller
to effect the conveyance of such Ineligible Dealer Note pursuant
to this Section 2.06. The provisions of Sections 2.06(a), (b)
and (c) shall constitute the sole remedy respecting any breach of
the representations and warranties set forth in Sections
2.05(a)(v), (vi), (vii) and (ix) with respect to such Dealer Note
available to the Certificateholders or the Master Trust Trustee
on behalf of Certificateholders.
(d) For the purposes of Sections 2.06(a) and 2.06(b)
above, proceeds of a Dealer Note shall not be deemed to be
impaired hereunder solely because such proceeds are held by the
Servicer (if the Servicer is NFC) for more than the applicable
period under Section 9-306(3) of the UCC.
SECTION 2.07 Purchase of Certificateholders'
Interest. In the event (x) of any breach of any of the
representations and warranties set forth in Sections 2.05(a)(i),
(ii), (iii) or (iv) or (y) a material amount of Dealer Notes are
Ineligible Dealer Notes, and such event has a material adverse
effect on the interests of the Investor Certificateholders,
either the holders of Investor Certificates evidencing not less
than a majority of the Trust Invested Amount (the "Majority
Holders") or the Master Trust Trustee at the direction of the
Majority Holders, by notice then given in writing to the Seller
(and to the Master Trust Trustee and the Servicer if given by the
Investor Certificateholders), may direct the Seller to purchase
the Certificateholders' Interest within 60 days of such notice,
or within such longer period as may be specified in such notice,
and the Seller shall be obligated to make such purchase on a
Distribution Date occurring within such period on the terms and
conditions set forth below; provided, however, that no such
purchase shall be required to be made if, prior to the
Determination Date preceding the final Distribution Date within
such period, the representations and warranties contained in
Sections 2.05(a)(i), (ii), (iii) and (iv) shall be satisfied in
all material respects or there shall no longer be a material
amount of Ineligible Dealer Notes, as the case may be, and any
material adverse effect on the interests of the Investor
Certificateholders caused thereby shall have been cured. The
Seller shall deposit in the Collections Account on a Transfer
Date occurring within such period an amount equal to the purchase
price (as described in the next sentence) for the Investor
Certificates. The purchase price for any such purchase will be
equal to the sum of the amounts specified therefor with respect
to each outstanding Series in the related Supplement.
Notwithstanding anything to the contrary in this Agreement, the
entire amount of the purchase price deposited in the Collections
Account shall be distributed to the Investor Certificateholders
on such Distribution Date in accordance with Section 12.03 and
the terms of each Supplement. Payment of such purchase price
into the Collections Account in immediately available funds shall
otherwise be considered a prepayment in full of the Dealer Notes
in the Master Trust. If the Master Trust Trustee or the Investor
Certificateholders give notice directing the Seller to purchase
the Certificateholders' Interest as provided above, the
obligation of the Seller to purchase the Certificateholders'
Interest pursuant to this Section 2.07 shall constitute the sole
remedy respecting an event of the type specified in the first
sentence of this Section 2.07 available to the Investor
Certificateholders (or the Master Trust Trustee on behalf of the
Investor Certificateholders).
SECTION 2.08 Covenants of the Seller. The Seller
hereby covenants that:
(a) Security Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer
to any other person, or grant, create, incur, assume or suffer to
exist any Lien (i) on the 1990 Trust Seller Certificate or on any
1990 Trust Investor Certificate issued to the Master Trust, or
any interest therein, or (ii) on any Dealer Note (except for the
Lien of the 1990 Trust Trustee prior to the 1990 Trust
Termination Date), whether existing as of the 1990 Trust
Termination Date or thereafter created, or any interest therein.
The Seller shall defend the right, title, and interest of the
Master Trust in, to and under the 1990 Trust Seller Certificate,
any such 1990 Trust Investor Certificate and any such Dealer Note
against all claims of third parties claiming through or under the
Seller.
(b) Allocations. In the event that the Seller is
unable for any reason to transfer dealer notes to the Master
Trust in accordance with the provisions of this Agreement, then,
in any such event, the Seller agrees to allocate and pay to the
Master Trust, after the date of such inability, all collections
with respect to any dealer notes that would otherwise have been
transferred to the Master Trust; and the Seller agrees to have
such amounts applied as Dealer Note Collections or Finance Charge
Collections, as the case may be, in accordance with Article IV.
(c) Delivery of Collections. In the event that the
Seller receives Collections (i) prior to the 1990 Trust
Termination Date, the Seller agrees to pay or cause to be paid to
the Servicer (or otherwise deposited in the Collections Account)
all such Collections and (ii) on or after the 1990 Trust
Termination Date, the Seller agrees to pay or cause to be paid to
the Servicer all such Collections, in each case as soon as
practicable after receipt thereof by the Seller but in no event
later than the second Business Day after receipt thereof by the
Seller.
SECTION 2.09 Seller's Officer's Certificate. The
Seller will deliver to the Master Trust Trustee, the Servicer and
the Rating Agencies, on or about April 15 of each calendar year,
beginning in April, 1996, or within ten Business Days of the
Seller's discovery of an event discussed in this Section 2.09, an
Officer's Certificate substantially in the form of Exhibit B
stating that (a) in the course of the performance by the signer
of his duties as officer of the Seller he would normally obtain
knowledge of a breach of any of the Seller's covenants contained
in this Agreement and (b) whether he has obtained knowledge of
any such breach of covenant, and, if so, specifying each such
breach of covenant of which the signer has knowledge and the
nature thereof. A copy of such certificate may be obtained by
any Investor Certificateholder by a request in writing to the
Master Trust Trustee addressed to the Corporate Trust Office.
ARTICLE III
ADMINISTRATION AND SERVICING OF DEALER NOTES
SECTION 3.01 Acceptance of Appointment and Other
Matters Relating to Servicer.
(a) In connection with and in consideration for the
conveyance of the 1990 Trust Seller Certificate, the Dealer Notes
and the other rights conveyed hereunder to the Master Trust, the
Seller, in its capacity as holder of the NFSC Certificate, agrees
to cause NFC to act as Servicer under this Agreement and NFC
agrees to act as Servicer under this Agreement. The Investor
Certificateholders by their acceptance of the Investor
Certificates consent to NFC acting as Servicer.
(b) The Servicer is hereby authorized in the name and
on behalf of the Master Trust Trustee and the Seller, and agrees,
to service and administer the Dealer Notes and collect payments
due under such Dealer Notes in accordance with its customary and
usual servicing procedures for servicing wholesale chattel paper
comparable to the Dealer Notes and in accordance with the Credit
Guidelines. The Servicer, acting alone or through any party
designated by it pursuant to Section 8.07, shall do any and all
things in connection with such servicing and administration which
it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 10.01, the
Servicer is hereby authorized and empowered, (i) unless such
power and authority is revoked by the Master Trust Trustee, to
instruct the Master Trust Trustee to make withdrawals and
payments from the Collections Account, the Excess Funding Account
and any Series Account as set forth in this Agreement or any
Supplement, (ii) effective on the 1990 Trust Termination Date, to
execute and deliver, on behalf of the Master Trust for the
benefit of the Certificateholders and the other Beneficiaries
(but in its own name, without reference to the fact that it is
acting for the Master Trust), any and all instruments of
satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to
the Dealer Notes and, after the delinquency of any such Dealer
Notes and to the extent permitted under and in compliance with
applicable law and regulations, to commence collection
proceedings with respect to such Dealer Notes, (iii) to make any
filings or registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and
any securities authority of any jurisdiction on behalf of the
Master Trust as may be necessary or advisable to comply with the
securities or reporting requirements laws of the United States or
any state or other jurisdiction, (iv) to instruct the Master
Trust Trustee to take any action required or permitted under any
Enhancement and (v) effective on the 1990 Trust Termination Date,
to delegate certain of its servicing, collection, enforcement and
administrative duties hereunder with respect to the Dealer Notes
to any Person who agrees to conduct such duties in accordance
with the Credit Guidelines and this Agreement; provided, however,
that the Servicer shall notify the Master Trust Trustee, the
Rating Agencies, and any Enhancement Providers in writing of any
such delegation of its duties which is not in the ordinary course
of its business, no delegation will relieve the Servicer of its
liability and responsibility with respect to such duties and the
Rating Agency Condition shall have been satisfied with respect to
any such delegation. The Master Trust Trustee shall furnish the
Servicer with any powers of attorney and other documents as the
Servicer may request necessary or appropriate under the laws of
any jurisdiction with authority over the Dealer Notes to enable
the Servicer to carry out its servicing and administrative duties
hereunder.
(c) In the event that the Seller is unable for any
reason to transfer dealer notes to the Master Trust in accordance
with the provisions of this Agreement, then, in any such event,
the Servicer agrees to apply, after the date of such inability,
all collections (to the extent received) with respect to any
dealer notes that would otherwise have been transferred to the
Master Trust as Dealer Note Collections or Finance Charge
Collections, as the case may be, in accordance with Article IV
and any Supplement. Dealer Notes written off as uncollectible in
accordance with this Agreement shall continue to be allocated in
accordance with Article IV and any Supplement.
(d) The Servicer shall under no circumstances be
obligated to use servicing procedures, offices, employees or
accounts for servicing Dealer Notes separate from the procedures,
offices, employees and accounts used by the Servicer in
connection with servicing other dealer notes.
SECTION 3.02 Servicing Compensation. Effective on
the 1990 Trust Termination Date, with respect to any Series, as
full compensation for its servicing activities hereunder and
reimbursement for its expenses as set forth in this paragraph,
the Servicer shall be entitled to receive a servicing fee in
respect of each day prior to the Final Master Trust Termination
Date, payable in arrears, on each date and in the manner
specified in the applicable Supplement. The "Servicing Fee"
shall be the aggregate of the fees specified in the Supplements
and shall be payable to the Servicer solely to the extent amounts
are available for payment in accordance with the terms of the
Supplements. The share of the Servicing Fee for any Series
allocable to Investor Certificateholders shall be determined in
accordance with the terms of the applicable Supplement. The
Servicer's expenses include the amounts due to the Master Trust
Trustee pursuant to Section 11.05 and the reasonable fees and
disbursements of independent accountants and all other expenses
incurred by the Servicer in connection with its activities
hereunder, and include all other fees and expenses of the Master
Trust not expressly stated herein to be for the account of the
Certificateholders; provided that in no event shall the Servicer
be liable for any federal, state or local income or franchise
tax, or any interest or penalties with respect thereto, assessed
on the Master Trust, the Master Trust Trustee or the
Certificateholders. The Servicer shall be required to pay such
expenses for its own account, and shall not be entitled to any
payment therefor other than the Servicing Fee. The Servicer
shall not be entitled to any payment for any activities it
conducts hereunder prior to the 1990 Trust Termination Date.
SECTION 3.03 Representations and Warranties of the
Servicer. The Servicer hereby represents and warrants to the
Master Trust Trustee, on behalf of the Master Trust, as of the
date of this Agreement, the 1990 Trust Termination Date, and with
respect to any Series of Investor Certificates, as of the date of
any Supplement and the Closing Date or Series Issuance Date, as
the case may be, unless otherwise stated in such Supplement,
that:
(a) Organization and Good Standing. The Servicer has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, is
qualified to do business in every jurisdiction in which the
failure to so qualify would have a material adverse effect on the
rights of the Certificateholders and has full corporate power and
authority to execute, deliver and perform its obligations under
this Agreement and any Supplement and to perform its obligations
under the 1990 Trust Agreement and to own its property and
conduct its business as such properties are presently owned and
such business is presently conducted.
(b) Due Authorization. The execution, delivery and
performance of this Agreement and any Supplement by the Servicer
have been duly authorized by all necessary corporate action on
the part of the Servicer and do not require any approval or
consent of any governmental agency or authority.
(c) Binding Obligation. Each of the 1990 Trust
Agreement, this Agreement and any Supplement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect
affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law
or in equity).
(d) Accuracy of Information. All information
heretofore furnished by the Servicer in writing to the Master
Trust Trustee for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Servicer in writing to the
Master Trust Trustee will be, true and accurate in every material
respect or based on reasonable estimates on the date as of which
such information is stated or certified.
(e) No Proceeding. There are no proceedings or
investigations, pending or, to the best knowledge of the
Servicer, threatened against the Servicer, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of the
1990 Trust Agreement, this Agreement or any Supplement or the
Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by the 1990 Trust Agreement, this Agreement or any
Supplement or the Certificates, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Servicer, would
materially and adversely affect the performance by the Servicer
of its obligations under the 1990 Trust Agreement, this Agreement
or any Supplement, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or
enforceability of the 1990 Trust Agreement, this Agreement or any
Supplement or the Certificates, or (v) seeking to affect
adversely the income tax attributes of the Master Trust under the
United States federal, Illinois, or New York income tax systems.
(f) No Violation. The execution and delivery of this
Agreement and any Supplement and the Certificates, the
performance of the transactions contemplated by this Agreement
and any Supplement and the fulfillment of the terms hereof, do
not and will not conflict with any material provision of the
Certificate of Incorporation or By-Laws of the Servicer, and do
not and will not conflict with, violate, result in any breach of
any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default
under any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Servicer is a party or by
which it or its properties is bound, or, to the best of
Servicer's knowledge, any Requirement of Law applicable to the
Servicer.
SECTION 3.04 Reports and Records for the Master Trust
Trustee.
(a) Initial Report. Within ten Business Days after
the 1990 Trust Termination Date, the Servicer shall prepare and
deliver to the Seller and the Master Trust Trustee an Officer's
Certificate substantially in the form of Exhibit C setting forth,
in each case as of the 1990 Trust Termination Date, (i) the
aggregate amount of Dealer Notes being transferred by the Seller
and the 1990 Trust, respectively, to the Master Trust, (ii) the
aggregate amount of accrued finance charges thereon, (iii) the
NITC Interest Amount with respect thereto, (iv) the amount of
funds being transferred by the 1990 Trust from the Spread Account
(as defined in the 1990 Trust Agreement) to the Master Trust, and
(v) the aggregate amount of 1990 Trust Investment Securities
being transferred by the 1990 Trust to the Master Trust.
(b) Monthly Servicer Certificates. On each
Determination Date preceding a Distribution Date, the Servicer
shall forward to the Seller, the Master Trust Trustee and the
Paying Agent a certificate of a Servicing Officer substantially
in the form set forth in the related Supplement (the "Monthly
Servicer and Settlement Statement"), which shall be distributed
as set forth in the related Supplement. Prior to the 1990 Trust
Termination Date, the Servicer shall deliver a copy of the
certificate required pursuant to Section 3.04(b) of the 1990
Trust Agreement to the Master Trust Trustee concurrently with the
delivery of such certificate to the 1990 Trust Trustee.
(c) Daily Report. To the extent required by any
Supplement, on each Business Day, the Servicer shall prepare a
completed report containing the information required in such
Supplement.
SECTION 3.05 Servicer Certificate. The Servicer will
deliver to the Master Trust Trustee, the Seller and the Rating
Agencies, on or about April 15 of each calendar year (beginning
in April 1996) or within ten Business Days of the Servicer's
discovery of a Servicer Termination Event, an Officer's
Certificate substantially in the form of Exhibit D stating that
(a) in the course of the performance by the signer of his duties
as officer of the Servicer he would normally obtain knowledge of
any Servicer Termination Event and (b) whether he has obtained
knowledge of any such Servicer Termination Event, and, if so,
specifying each such Servicer Termination Event of which the
signer has knowledge and the nature thereof. Prior to the 1990
Trust Termination Date, the Servicer shall deliver a copy of the
certificate required pursuant to Section 3.05 of the 1990 Trust
Agreement to the Master Trust Trustee concurrently with the
delivery of such certificate to the 1990 Trust Trustee. A copy
of any such certificates may be obtained by any Investor
Certificateholder by a request in writing to the Master Trust
Trustee addressed to the Corporate Trust Office.
SECTION 3.06 Annual Independent Public Accountants'
Servicing Report.
(a) On or about April 15 of each calendar year,
beginning in April 1996, the Servicer shall cause a firm of
nationally recognized independent public accountants (who may
also render other services to the Servicer or the Seller) to
furnish a report to the Master Trust Trustee, the Servicer and
any Special Servicer Agent to the effect that such firm is of the
opinion that the system of internal accounting controls in effect
on the date of such statement relating to the servicing
procedures performed by the Servicer under this Agreement, taken
as a whole, was sufficient for the prevention and detection of
errors and irregularities which would be material to the assets
of the Master Trust and that nothing has come to their attention
that would cause them to believe that such servicing has not been
conducted in compliance with Sections 3.02 and 8.07 and Article
IV of this Agreement, except for such exceptions as shall be set
forth in such report. Prior to the 1990 Trust Termination Date,
the Servicer shall deliver a copy of the report required pursuant
to Section 3.06(a) of the 1990 Trust Agreement to the Master
Trust Trustee and any Special Servicer Agent concurrently with
the delivery of such report to the 1990 Trust Trustee. A copy of
any such reports may be obtained by any Investor
Certificateholder by a request in writing to the Master Trust
Trustee addressed to the Corporate Trust Office.
(b) On or about April 15 of each calendar year,
beginning in April 1996, the Servicer shall cause a firm of
nationally recognized independent public accountants (who may
also render other services to the Servicer or the Seller) to
furnish a report to the Master Trust Trustee to the effect that
they have compared the mathematical calculations of each amount
set forth in each of the monthly certificates forwarded by the
Servicer pursuant to Section 3.04(b) during the preceding
calendar year with the computer reports of the Servicer and such
accountants are of the opinion that such amounts are in
agreement, except for such exceptions as shall be set forth in
such report. Prior to the 1990 Trust Termination Date, the
Servicer shall deliver a copy of the report required pursuant to
Section 3.06(b) of the 1990 Trust Agreement to the Master Trust
Trustee concurrently with the delivery of such report to the 1990
Trust Trustee. A copy of any such reports may be obtained by any
Investor Certificateholder by a request in writing to the Master
Trust Trustee addressed to the Corporate Trust Office.
SECTION 3.07 Tax Treatment. The Seller has
structured this Agreement and the Investor Certificates with the
intention that the Investor Certificates will qualify under
applicable federal, state, local and foreign tax law as
indebtedness. Except to the extent expressly specified to the
contrary in any Supplement, the Seller, the Servicer, the Holders
of the Master Trust Seller's Certificates, each Investor
Certificateholder, and each Certificate Owner agree to treat and
to take no action inconsistent with the treatment of the Investor
Certificates (or beneficial interest therein) as indebtedness for
purposes of federal, state, local and foreign income or franchise
taxes and any other tax imposed on or measured by income. Each
Investor Certificateholder, Holder of a Variable Funding
Certificate and the Holders of the Master Trust Seller's
Certificates, by acceptance of its Certificate and each
Certificate Owner, by acquisition of a beneficial interest in a
Certificate, agree to be bound by the provision of this Section
3.07. Each Certificateholder agrees that it will cause any
Certificate Owner acquiring an interest in a Certificate through
it to comply with this Agreement as to treatment as indebtedness
under applicable tax law, as described in this Section 3.07.
Furthermore, subject to Section 11.11, the Master Trust Trustee
shall treat the Master Trust as a security device only, and shall
not file tax returns or obtain an employer identification number
on behalf of the Master Trust.
SECTION 3.08 Notices by the Servicer. In the event
that NFC is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 10.02 shall deliver or make
available to NFC and the Seller each certificate and report
required to be prepared, forwarded or delivered thereafter
pursuant to this Agreement.
SECTION 3.09 Custody of Dealer Notes. To assure
uniform quality in servicing the Dealer Notes and to reduce
administrative costs, the Master Trust Trustee, upon the
execution and delivery of the Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such
appointment, in each case effective as of the 1990 Trust
Termination Date, to act as the agent of the Master Trust Trustee
as custodian of the following documents or instruments which are
hereby constructively delivered to the Master Trust Trustee with
respect to each Dealer Note:
(a) the original of the Dealer Note;
(b) any evidence of the original Dealer Agreement
fully executed by the Dealer that the Servicer shall have on file
in accordance with its customary procedures; and
(c) any and all other documents that the Servicer or
the Seller shall keep on file, in accordance with its customary
procedures, relating to a Dealer Note, a Dealer or a Financed
Vehicle.
SECTION 3.10 Covenants of the Servicer.
(a) Credit Guidelines. Effective on the 1990 Trust
Termination Date, NFC will not change in any material respect
its collection and monitoring policies and procedures from the
Credit Guidelines if any such change might reasonably be expected
to materially impair the collectability of the Dealer Notes or
allow any other party providing financing to a Dealer to have a
security interest in Financed Vehicles which is prior to NFC's
security interest in such Financed Vehicles, nor will NFC change
in any material respect its current practices with respect to the
recognition of estimated or actual loss on Dealer Notes in any
manner which might reasonably be expected to affect materially
the incidence of Principal Losses.
(b) Casualty Insurance. Effective on the 1990 Trust
Termination Date, if any Series are outstanding, the Servicer
shall maintain insurance policies insuring the Financed Vehicles
related to the Dealer Notes against casualty loss substantially
similar in amount and coverage to those maintained by the
Servicer as of the 1990 Trust Termination Date.
(c) Selection of Dealer Notes. Effective on the 1990
Trust Termination Date, if the Servicer is required, pursuant to
clause (n) of the definition of Eligible Dealer Note, to select
certain Dealer Notes from the dealer notes issued by a particular
Dealer for transfer to the Master Trust, such Dealer Notes shall
be selected in a manner that shall not be adverse to the rights
of the Investor Certificateholders.
(d) Recoveries. Effective on the 1990 Trust
Termination Date, the Servicer covenants and agrees that any
recoveries from or with respect to Dealers relating to a group of
Dealer Notes and dealer notes (other than recoveries relating to
a single Dealer Note or dealer note) will be allocated pro rata
between the Master Trust and NFC based on the principal amount of
losses on Dealer Notes issued by such Dealer and owned by the
Master Trust and the principal amount of losses on dealer notes
issued by such Dealer and owned by NFC or any other party, and
that any such recoveries allocable to the Master Trust will be
deposited in the Collections Account and treated as Dealer Note
Collections.
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01 Rights of Certificateholders. The
Investor Certificates shall represent fractional undivided
interests in the Master Trust, which, with respect to each
Series, shall consist of the right to receive, to the extent
necessary to make the required payments with respect to the
Investor Certificates of such Series at the times and in the
amounts specified in the related Supplement, the portion of
Collections allocable to Investor Certificateholders of such
Series pursuant to this Agreement and such Supplement, funds on
deposit in the Collections Account allocable to
Certificateholders of such Series pursuant to this Agreement and
such Supplement, funds on deposit in any related Series Account
and funds available pursuant to any related Enhancement
(collectively, with respect to all Series, the
"Certificateholders' Interest"), it being understood that the
Investor Certificates of any Series or Class shall not represent
any interest in any Series Account or Enhancement for the benefit
of any other Series or Class. The Master Trust Seller's
Certificates shall represent the ownership interest in the
remainder of the assets of the Master Trust not allocated
pursuant to this Agreement or any Supplement to the
Certificateholders' Interest, including the right to receive that
portion of Collections allocable to the Master Trust Seller's
Certificates and other amounts at the times and in the amounts
specified in any Supplement to be paid to the Seller on behalf of
all holders of the Master Trust Seller's Certificates; provided,
however, that the Master Trust Seller's Certificates shall not
represent any interest in the Collections Account, any Series
Account or any Enhancement, except as specifically provided in
this Agreement or any Supplement.
SECTION 4.02 Establishment of the Collections Account
and the Excess Funding Account.
(a) The Collections Account.
(i) The Master Trust Trustee, for the benefit of the
Certificateholders and the other Beneficiaries, shall cause
to be established and maintained in the name of the Master
Trust, an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held
for the benefit of the Certificateholders and the other
Beneficiaries (the "Collections Account"). Any funds on
deposit in the Collections Account, if invested, shall be
invested in Eligible Investments. Pursuant to authority
granted to it pursuant to Section 3.01(b), the Servicer
shall have the revocable power to instruct the Master Trust
Trustee to withdraw funds from the Collections Account for
the purpose of carrying out the duties of the Servicer
hereunder. The Servicer at all times shall maintain
accurate records reflecting each transaction in the
Collections Account.
(ii) Funds on deposit in the Collections Account
overnight or for a longer period shall at all times be
invested by the Master Trust Trustee in Eligible Investments
selected by the Servicer at the direction of the Servicer or
its agent, subject to the restrictions set forth below and
in Section 4.06. Any Eligible Investment with a stated
maturity shall mature no later than the following Transfer
Date. Net interest and earnings (less investment expenses)
on funds on deposit in the Collections Account shall be
included in the calculation of Investment Income for the
relevant Due Period.
(b) The Excess Funding Account.
(i) The Master Trust Trustee, for the benefit of the
Certificateholders and the other Beneficiaries, shall cause
to be established and maintained in the name of the Master
Trust, an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held
for the benefit of the Certificateholders and the other
Beneficiaries (the "Excess Funding Account"). Pursuant to
authority granted to it pursuant to Section 3.01(b), the
Servicer shall have the revocable power to instruct the
Master Trust Trustee to withdraw funds from the Excess
Funding Account for the purpose of carrying out the duties
of the Servicer hereunder. The Servicer at all times shall
maintain accurate records reflecting each transaction in the
Excess Funding Account.
(ii) Funds on deposit in the Excess Funding Account
overnight or for a longer period shall at all times be
invested by the Master Trust Trustee in Eligible Investments
at the direction of the Servicer or its agent, subject to
the restrictions set forth below and in Section 4.06.
Except as otherwise permitted by the Rating Agencies then
rating the Investor Certificates, any Eligible Investments
with a stated maturity shall mature no later than the
following Transfer Date. Net interest and earnings (less
investment expenses) on funds on deposit in the Excess
Funding Account shall be included in the calculation of
Investment Income for the relevant Due Period.
SECTION 4.03 Collections and Allocations.
(a) Deposits to the Collections Accounts. The
Servicer or the Master Trust Trustee, as the case may be, shall
deposit all Collections into the Collections Account within two
Business Days of receipt thereof in accordance with this Article
IV and the terms of each Supplement; provided, however, that,
after the 1990 Trust Termination Date, Dealer Note Collections
shall be deposited net of any Dealer Note Collections that
represent Advance Reimbursements; and provided further, that
notwithstanding anything to the contrary in this Agreement, so
long as NFC maintains an acceptable short term rating from each
of the Rating Agencies rating any outstanding Series of Investor
Certificates of at least A-1 by Standard & Poor's and P-1 by
Moody's (or the equivalent from other Rating Agencies) or NFC
otherwise obtains the Rating Agency confirmation described below,
subject to any limitations in the confirmations described below,
the Servicer need not make the deposits of Collections into the
Collections Account provided in this Section 4.03, but may make a
single deposit into the Collections Account in same-day or
next-day funds not later than 2:00 p.m., New York City time, on
the Transfer Date in a net amount equal to the amount which would
have been on deposit with respect to the immediately preceding
Due Period in the Collections Account; provided, however, that
prior to ceasing daily deposits as described above the Seller
shall have delivered to the Master Trust Trustee written
confirmation from each of the Rating Agencies that the failure by
NFC to make daily deposits will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class. In
addition, on each NITC Interest Transfer Date related to a Due
Period commencing after the 1990 Trust Termination Date, the
Servicer shall direct the Master Trust Trustee to withdraw from
the Interest Deposit Account and deposit in the Collections
Account an amount equal to the NITC Finance Charges for the
immediately preceding Due Period.
(b) Excepted Deposits and Withdrawals. Subject to
Section 4.03(e), but notwithstanding anything else in this
Agreement to the contrary, with respect to any Due Period,
(i) the Servicer shall only be required to deposit Collections
into the Collections Account up to the aggregate amount of
Collections required to be deposited into each Series Account or,
without duplication, distributed on the related Distribution Date
to Investor Certificateholders or to any Enhancement Provider
pursuant to the terms of any Supplement or Enhancement Agreement
and (ii) if at any time prior to such Distribution Date the
amount of Collections deposited in the Collections Account
exceeds the amount required to be deposited pursuant to clause
(i) above, the Servicer shall be permitted to withdraw the excess
from the Collections Account.
(c) Advances. No later than the Transfer Date related
to a Due Period commencing after the 1990 Trust Termination Date,
the Servicer shall deposit any Advance for such Due Period in the
Collections Account.
(d) Allocation for Series. Collections received prior
to the 1990 Trust Termination Date shall be allocated to each
outstanding Series in accordance with the related Supplement.
Effective as of the 1990 Trust Termination Date, unless otherwise
provided in the related Supplement, (i) on each Transfer Date
related to a Due Period commencing after the 1990 Trust
Termination Date, the amount of Finance Charge Collections for
the related Due Period available in the Collections Account
allocable to each Series shall be determined by multiplying the
aggregate amount of such Finance Charge Collections by the Series
Allocation Percentage for such Due Period with respect to such
Series, (ii) on each Business Day, the amount of Principal
Collections available in the Collections Account allocable to
each Series shall be determined by multiplying the aggregate
amount of such Principal Collections by the Series Allocation
Percentage for such Series for the Due Period in which such
Business Day occurs, and (iii) on each Transfer Date related to a
Due Period commencing after the 1990 Trust Termination Date, the
Dealer Note Losses for the related Due Period allocable to each
Series shall be determined by multiplying the aggregate amount of
such Dealer Note Losses by the Series Allocation Percentage for
such Due Period with respect to such Series. Effective as of the
1990 Trust Termination Date, the Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collections Account, withdraw the required amounts from the
Collections Account and deposit such amounts into the applicable
Series Account or the Excess Funding Account or pay such amounts
to the Seller in accordance with the provisions of this Article
IV and any Supplement. As of the 1990 Trust Termination Date,
1990 Trust Investment Securities and funds on deposit in the 1990
Trust Accounts (other than the Interest Deposit Account)
transferred to the Master Trust pursuant to Section 2.02(b) shall
be allocated among the outstanding Series based on the Series
Allocation Percentage for each such Series (or as otherwise
provided in the related Supplement). Amounts allocated to any
Series shall not, except as specified in the related Supplement,
be available to the Investor Certificateholders of any other
Series. Investment Income and other income from the investment
of funds on deposit in the Series Accounts for any Series shall
be allocated in accordance with the related Supplement.
Allocations within any Series between the Certificateholders'
Interest and the Master Trust Seller's Interest and among the
Classes in any Series shall be set forth in the related
Supplement or Supplements.
(e) Shared Principal Collections. On each Business
Day, Shared Principal Collections shall be allocated to each
outstanding Series that so provides in the related Supplement pro
rata based on the Principal Shortfall, if any, for each such
Series, and then, at the option of the Seller, any remainder may
be applied as principal with respect to the Variable Funding
Certificates. Thereafter, any remaining Shared Principal
Collections shall be paid on such Business Day to the Seller;
provided, however, that to the extent any such payment would
cause the Master Trust Sellers's Interest to be less than the
Minimum Master Trust Seller's Interest (or, in the Seller's
discretion, a greater amount), the remaining Shared Principal
Collections shall be retained in the Excess Funding Account and
invested in Eligible Investments to the extent necessary to
increase the Master Trust Seller's Interest to an amount equal to
(or, in the Seller's discretion, greater than) the Minimum Master
Trust Seller's Interest. Notwithstanding the foregoing, if an
Amortization Period or an Investment Period has commenced and is
continuing with respect to one or more outstanding Series, any
Shared Principal Collections otherwise payable to the Seller
shall be allocated to such Series or, if more than one Series is
in an Amortization Period or an Investment Period, shall be
divided among such Series pro rata based on the Series Allocation
Percentage for each such Series.
(f) Excess Interest Collections. To the extent
provided in any Supplement, Excess Interest Collections shall be
allocated to each outstanding Series that so provides in the
related Supplement pro rata to cover shortfalls (other than
Principal Shortfalls) based on the relative amounts of each such
Series' Shortfall, if any, for each such Series. Otherwise,
Excess Interest Collections will be allocated to the Seller.
SECTION 4.04 Establishment of the Interest Funding
Account, Series Principal Accounts, Distribution Accounts and
Other Series Accounts.
(a) Interest Funding and Series Principal Accounts.
(i) To the extent provided in any Supplement, the
Master Trust Trustee, for the benefit of the
Certificateholders of any Series, shall establish and
maintain or cause to be established and maintained in the
name of the Master Trust two Eligible Deposit Accounts for
each Series (an "Interest Funding Account" and a "Series
Principal Account," respectively), each bearing a
designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders
of such Series. The Master Trust shall possess all right,
title and interest in all funds on deposit from time to time
in any Interest Funding Account and any Series Principal
Account and in all proceeds thereof. Pursuant to authority
granted to it pursuant to Section 3.01(b), the Servicer
shall have the revocable power to instruct the Master Trust
Trustee to withdraw funds from any Interest Funding Account
and any Series Principal Account for the purpose of carrying
out the duties of the Servicer hereunder. The Servicer at
all times shall maintain accurate records reflecting each
transaction in each Interest Funding Account and each Series
Principal Account.
(ii) Funds on deposit in each Interest Funding Account
and each Series Principal Account overnight or for a longer
period shall at all times be invested by the Master Trust
Trustee in Eligible Investments selected by the Servicer at
the direction of the Servicer or its agent, subject to the
restrictions set forth below and in Section 4.06. Any
Eligible Investment with a stated maturity shall mature on
or prior to the date specified in the related Supplement.
Net interest and earnings (less investment expenses) on
funds on deposit in each Interest Funding Account and each
Series Principal Account, if any, shall be allocated and
distributed as provided in the related Supplement.
(b) Distribution Accounts.
(i) The Servicer, for the benefit of the Investor
Certificateholders of each Series, shall cause to be
established and maintained in the name of the Master Trust,
an Eligible Deposit Account for each Series (a "Distribution
Account") bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of
the Investor Certificateholders of such Series. The Master
Trust Trustee shall possess all right, title and interest in
all funds on deposit from time to time in each Distribution
Account and in all proceeds thereof. Each Distribution
Account shall be under the sole dominion and control of the
Master Trust Trustee for the benefit of the Investor
Certificateholders of the related Series.
(ii) Funds on deposit in each Distribution Account
overnight or for a longer period shall at all times be
invested in Eligible Investments selected by the Servicer at
the direction of the Servicer or its agent, subject to the
restrictions set forth below and in Section 4.06. Any
Eligible Investment with a stated maturity shall mature on
or prior to the date specified in the related Supplement.
Net interest and earnings (less investment expenses) on
funds on deposit in each Distribution Account, if any, shall
be allocated and distributed as provided in the related
Supplement.
(c) Series Accounts. To the extent provided in any
Supplement, the Master Trust Trustee, for the benefit of the
Certificateholders of any Series, shall establish and maintain or
cause to be established and maintained in the name of the Master
Trust, Eligible Deposit Accounts bearing a designation clearly
indicating that the funds deposited therein are held for the
benefit of the Certificateholders of such Series (any such
account, together with the Interest Funding Accounts, the Series
Principal Accounts and the Distribution Accounts, a "Series
Account"). The Master Trust shall possess all right, title and
interest in all funds on deposit from time to time in the Series
Accounts and in all proceeds thereof. Pursuant to authority
granted to it pursuant to Section 3.01(b), the Servicer shall
have the revocable power to instruct the Master Trust Trustee to
withdraw funds from the Series Accounts for the purpose of
carrying out the duties of the Servicer hereunder. The Servicer
at all times shall maintain accurate records reflecting
transactions in the Series Accounts.
(d) Administration of the Series Accounts. Funds on
deposit in the Series Accounts overnight or for a longer period
shall at all times be invested in Eligible Investments selected
by the Servicer at the direction of the Servicer or its agent,
subject to the restrictions set forth below and in Section 4.06.
Any Eligible Investment with a stated maturity shall mature on or
prior to the date specified in the related Supplement. Net
interest and earnings (less investment expenses) on funds on
deposit in the Series Accounts, if any, shall be allocated and
distributed as provided in the related Supplement.
SECTION 4.05 Servicer's Failure to Give
Instructions. If the Servicer fails to give instructions to make
any payment or deposit required to be made or given by the
Servicer at the time specified in this Agreement (except for any
payments that may be required pursuant to Section 8.04), the
Servicer shall, upon request of the Master Trust Trustee,
promptly provide the Master Trust Trustee with all information
necessary to allow the Master Trust Trustee to make such a
payment.
SECTION 4.06 Perfected Interest in Eligible
Investments. The Master Trust Trustee, acting in accordance with
instructions from the Servicer, shall take all actions necessary
to perfect its Security Interest in the Eligible Investments.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
INVESTOR CERTIFICATEHOLDERS
Distributions shall be made to, and reports shall be
provided to, Certificateholders as set forth in the applicable
Supplement.
ARTICLE VI
THE INVESTOR CERTIFICATES
SECTION 6.01 The Certificates. Subject to Sections
6.10 and 6.13, the Investor Certificates of any Series or Class
may be issued in bearer form ("Bearer Certificates") with
attached interest coupons and one or more special coupons
(collectively, the "Coupons") pursuant to Section 6.13, or in
fully registered form ("Registered Certificates") and shall be
substantially in the form of the exhibits with respect thereto
attached to the applicable Supplement. The NFSC Certificate will
be issued in registered form, substantially in the form of
Exhibit A, and shall upon issue, be executed and delivered by the
Seller to the Master Trust Trustee for authentication and
redelivery as provided in Section 6.02. Except as otherwise
provided in any Supplement, Bearer Certificates shall be issued
in minimum denominations of $5,000, $50,000 and $100,000 and
Registered Certificates shall be issued in minimum denominations
of $1,000 and in integral multiples of $1,000 in excess thereof.
If specified in any Supplement, the Investor Certificates of any
Series or Class shall be issued upon initial issuance as a single
certificate evidencing the aggregate original principal amount of
such Series or Class as described in Section 6.13. The NFSC
Certificate shall be a single certificate and shall initially
represent the entire Master Trust Seller's Interest. The
Certificates shall be executed on behalf of the Seller by any of
its Chairman of the Board of Directors, its President or one of
its Vice Presidents. The signature of any of these officers on
the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Seller shall bind the Seller, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificates.
No Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless
there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by the
Master Trust Trustee by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Agreement. Bearer Certificates shall be dated the Series
Issuance Date. All Registered Certificates and Master Trust
Seller's Certificates shall be dated the date of their
authentication.
SECTION 6.02 Authentication of Certificates. The
Master Trust Trustee shall authenticate and deliver the Investor
Certificates of each Series and Class that are issued upon
original issuance to or upon the order of the Seller against
payment to the Seller of the purchase price therefor. The Master
Trust Trustee shall authenticate and deliver the NFSC Certificate
to the Seller simultaneously with its delivery of the Investor
Certificates of the first Series to be issued hereunder. If
specified in the related Supplement for any Series or Class, the
Master Trust Trustee shall authenticate and deliver outside the
United States the Global Certificate that is issued upon original
issuance thereof.
SECTION 6.03 Registration of Transfer and Exchange of
Certificates. (a) The Master Trust Trustee shall cause to be
kept at the office or agency to be maintained in accordance with
the provisions of Section 11.15 a register (the "Certificate
Register") in which, subject to such reasonable regulations as it
may prescribe, a transfer agent (which shall initially be the
Master Trust Trustee) (the "Transfer Agent") shall provide for
the registration of the Registered Certificates as herein
provided. The Transfer Agent shall initially be the Master Trust
Trustee and any co-transfer agent and co-registrar chosen by the
Seller and acceptable to the Master Trust Trustee. Any reference
in this Agreement to the Transfer Agent shall include any
co-transfer agent and co-registrar unless the context requires
otherwise.
Subject to paragraph (c) below, upon surrender for
registration of transfer of any Registered Certificate at any
office or agency of the Transfer Agent maintained for such
purpose, one or more new Registered Certificates (of the same
Series and Class) in authorized denominations of like aggregate
fractional undivided interests in the Certificateholders'
Interest shall be executed, authenticated and delivered, in the
name of the designated transferee or transferees.
At the option of a Registered Certificateholder,
Registered Certificates (of the same Series and Class) may be
exchanged for other Registered Certificates of authorized
denominations of like aggregate fractional undivided interests in
the Certificateholders' Interest, upon surrender of the
Registered Certificates to be exchanged at any such office or
agency; Registered Certificates, including Registered
Certificates received in exchange for Bearer Certificates, may
not be exchanged for Bearer Certificates. At the option of the
Holder of a Bearer Certificate, subject to applicable laws and
regulations, Bearer Certificates may be exchanged for other
Bearer Certificates or Registered Certificates (of the same
Series and Class) of authorized denominations of like aggregate
fractional undivided interests in the Certificateholders'
Interest, upon surrender of the Bearer Certificates to be
exchanged at an office or agency of the Transfer Agent located
outside the United States. Each Bearer Certificate surrendered
pursuant to this Section 6.03 shall have attached thereto all
unmatured Coupons; provided that any Bearer Certificate so
surrendered after the close of business on the Record Date
preceding the relevant payment date or distribution date after
the expected final payment date need not have attached the Coupon
relating to such payment date or distribution date (in each case,
as specified in the applicable Supplement).
The preceding provisions of this Section 6.03
notwithstanding, the Master Trust Trustee or the Transfer Agent,
as the case may be, shall not be required to register the
transfer of or exchange any Certificate for a period of 15 days
preceding the due date for any payment with respect to the
Certificate.
Whenever any Investor Certificates are so surrendered
for exchange, the Seller shall execute, the Master Trust Trustee
shall authenticate and the Transfer Agent shall deliver (in the
case of Bearer Certificates, outside the United States) the
Investor Certificates which the Investor Certificateholder making
the exchange is entitled to receive. Every Investor Certificate
presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in a
form satisfactory to the Master Trust Trustee or the Transfer
Agent duly executed by the Investor Certificateholder or the
attorney-in-fact thereof duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Investor Certificates, but the Transfer
Agent may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
such transfer or exchange.
All Investor Certificates (together with any Coupons)
surrendered for registration of transfer and exchange or for
payment shall be canceled and disposed of in a manner
satisfactory to the Master Trust Trustee. The Master Trust
Trustee shall cancel and may, but shall not be required to,
destroy any Global Certificate upon its exchange in full for
Definitive Euro-Certificates and shall deliver a certificate of
destruction to the Seller. Such certificate shall also state
that a certificate or certificates of a Foreign Clearing Agency
to the effect referred to in Section 6.13 was received with
respect to each portion of the Global Certificate exchanged for
Definitive Euro-Certificates.
The Seller shall execute and deliver to the Master
Trust Trustee Bearer Certificates and Registered Certificates in
such amounts and at such times as are necessary to enable the
Master Trust Trustee to fulfill its responsibilities under this
Agreement and the Certificates.
(b) The Transfer Agent will maintain at its expense in
each of the Borough of Manhattan, The City of New York, an office
or agency where Investor Certificates may be surrendered for
registration of transfer or exchange (except that Bearer
Certificates may not be surrendered for exchange at any such
office or agency in the United States).
(c) Registration of transfer of Investor Certificates
containing a legend relating to the restrictions on transfer of
such Investor Certificates (which legend shall be set forth in
the Supplement relating to such Investor Certificates) shall be
effected only if the conditions set forth in the related
Supplement are satisfied. Investor Certificates issued upon
registration of transfer of, or Investor Certificates issued in
exchange for, Investor Certificates bearing the legend set forth
in the related Supplement shall also bear such legend unless the
Seller, the Servicer, the Master Trust Trustee and the Transfer
Agent receive an opinion of counsel, satisfactory to each of
them, to the effect that such legend may be removed.
Whenever an Investor Certificate containing the legend
set forth in the related Supplement is presented to the Transfer
Agent for registration of transfer, the Transfer Agent shall
promptly seek instructions from the Servicer regarding such
transfer and shall be entitled to receive instructions signed by
a Servicing Officer prior to registering any such transfer. The
Servicer hereby agrees to indemnify the Transfer Agent and the
Master Trust Trustee and to hold each of them harmless against
any loss, liability or expense incurred without negligence or bad
faith on their part arising out of or in connection with actions
taken or omitted by them in relation to any such instructions
furnished pursuant to this Section 6.03(c).
SECTION 6.04 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate (together, in the
case of Bearer Certificates, with all unmatured Coupons (if any)
appertaining thereto) is surrendered to the Transfer Agent, or
the Transfer Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is
delivered to the Transfer Agent and the Master Trust Trustee such
security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Master Trust
Trustee that such Certificate has been acquired by a bona fide
purchaser, the Seller shall execute, the Master Trust Trustee
shall authenticate and the Transfer Agent shall deliver (in the
case of Bearer Certificates, outside the United States), in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and aggregate
fractional undivided interest. In connection with the issuance
of any new Certificate under this Section 6.04, the Master Trust
Trustee or the Transfer Agent may require the payment by the
Certificateholder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Master
Trust Trustee and Transfer Agent) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.04 shall
constitute complete and indefeasible evidence of ownership in the
Master Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 6.05 Persons Deemed Owners. The Master Trust
Trustee, the Transfer Agent and any agent of either of them may
(a) prior to due presentation of a Registered Certificate for
registration of transfer, treat the Person or Persons in whose
name any Registered Certificate is registered as the owner of
such Registered Certificate for the purpose of receiving
distributions pursuant to the terms of the applicable Supplement
and for all other purposes whatsoever, and (b) treat the bearer
of a Bearer Certificate or Coupon as the owner of such Bearer
Certificate or Coupon for the purpose of receiving distributions
pursuant to the terms of the applicable Supplement and for all
other purposes whatsoever; and, in any such case, neither the
Master Trust Trustee, the Transfer Agent nor any agent of any of
them shall be affected by any notice to the contrary.
Notwithstanding the foregoing, in determining whether the holders
of the requisite Investor Certificates have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, Certificates owned by the Seller, the Servicer, any
other holder of a Master Trust Seller's Certificate or any
affiliate thereof, shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Master Trust
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Certificates which the Master Trust Trustee knows to be so owned
shall be so disregarded. Certificates so owned which have been
pledged in good faith shall not be disregarded and may be
regarded as outstanding if the pledgee establishes to the
satisfaction of the Master Trust Trustee the pledgee's right so
to act with respect to such Certificates and that the pledgee is
not the Seller, the Servicer, any other holder of a Master Trust
Seller's Certificate or any affiliate thereof.
SECTION 6.06 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to
Investor Certificateholders and shall have the revocable power to
withdraw funds for the purpose of making such distributions in
each case in accordance with the terms of the applicable
Supplement. The Master Trust Trustee may revoke such power and
remove the Paying Agent if the Master Trust Trustee determines in
its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement or the applicable
Supplement in any material respect. The Paying Agent shall
initially be the 1990 Trust Trustee. The 1990 Trust Trustee
shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Seller and upon the appointment of a
successor to act as Paying Agent. For so long as the 1990 Trust
Trustee shall act as Paying Agent, the provisions of Sections
11.01, 11.02 and 11.03 shall apply to the 1990 Trust Trustee in
its role as Paying Agent.
(b) The Master Trust Trustee shall cause any Paying
Agent (other than the 1990 Trust Trustee) to execute and deliver
to the Master Trust Trustee an instrument in which such Paying
Agent shall agree with the Master Trust Trustee that such Paying
Agent will hold all sums, if any, held by it for payment to the
Investor Certificateholders in trust for the benefit of the
Investor Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders.
SECTION 6.07 Access to List of Investor
Certificateholders' Names and Addresses . The Master Trust
Trustee will furnish or cause to be furnished by the Transfer
Agent to the Servicer, the Seller or the Paying Agent, within
five Business Days after receipt by the Master Trust Trustee of a
request therefor from the Servicer, the Seller or the Paying
Agent, respectively, in writing, a list in such form as the
Servicer, the Seller or the Paying Agent may reasonably require,
of the names and addresses of the Investor Certificateholders as
of the most recent Record Date for payment of distributions to
Investor Certificateholders. If three or more Holders of
Investor Certificates (the "Applicants") apply in writing to the
Master Trust Trustee, and such application states that the
Applicants desire to communicate with other Investor
Certificateholders with respect to their rights under this
Agreement or any Supplement or under the Investor Certificates
and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Master Trust Trustee,
after having been adequately indemnified by such Applicants for
its costs and expenses, shall afford or shall cause the Transfer
Agent to afford such Applicants access during normal business
hours to the most recent list of Certificateholders held by the
Master Trust Trustee, within five Business Days after the receipt
of such application. Such list shall be as of a date no more
than 45 days prior to the date of receipt of such Applicant's
request.
Every Certificateholder, by receiving and holding a
Certificate, agrees with the Master Trust Trustee that neither
the Master Trust Trustee, the Transfer Agent, nor any of their
respective agents shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source
from which such information was derived.
SECTION 6.08 Authenticating Agent.
(a) The Master Trust Trustee may appoint one or more
agents with respect to the Certificates which shall be authorized
to act on behalf of the Master Trust Trustee in authenticating
the Certificates in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the
Certificates (each such agent, an "Authenticating Agent").
Wherever reference is made in this Agreement or any Supplement to
the authentication of Certificates by the Master Trust Trustee or
the Master Trust Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of
the Master Trust Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Master
Trust Trustee by an authenticating agent. Each authenticating
agent must be acceptable to the Seller.
(b) Any institution succeeding to the corporate agency
business of an Authenticating Agent shall continue to be an
Authenticating Agent without the execution or filing of any paper
or any further act on the part of the Master Trust Trustee or
such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by
giving written notice of resignation to the Master Trust Trustee
and to the Seller. The Master Trust Trustee may at any time
terminate the agency of an Authenticating Agent by giving notice
of termination to such Authenticating Agent and to the Seller.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an Authenticating Agent shall
cease to be acceptable to the Master Trust Trustee or the Seller,
the Master Trust Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed
unless acceptable to the Master Trust Trustee and the Seller.
(d) The Master Trust Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation
for its services under this Section 6.08 and the Master Trust
Trustee shall be entitled to be reimbursed and the Servicer shall
reimburse the Master Trust Trustee for such payments, subject to
the provisions of Section 11.05.
(e) The provisions of Section 11.01, 11.02 and 11.03
shall be applicable to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section
6.08, the Certificates may have endorsed thereon, in lieu of the
Master Trust Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the
following form:
"This is one of the Certificates described in the
Pooling and Servicing Agreement.
________________________________________
________________________________________
As Authenticating Agent for the Master
Trust Trustee,
By:_____________________________________
Authorized Signatory"
SECTION 6.09 New Issuances.
(a) The Seller may from time to time direct the Master
Trust Trustee, on behalf of the Master Trust, to issue one or
more new Series of Investor Certificates. The Investor
Certificates of all outstanding Series shall be equally and
ratably entitled as provided herein to the benefits of this
Agreement without preference, priority or distinction, all in
accordance with the terms and provisions of this Agreement and
the applicable Supplement except, with respect to any Series or
Class, as provided in the related Supplement. If the Seller
directs the Master Trust Trustee to issue a new Series pursuant
to this Section 6.09 prior to the 1990 Trust Termination Date,
the Master Trust Trustee shall (unless otherwise provided in the
related Supplement), without any further action by the Seller or
any Certificateholder, deliver the 1990 Trust Seller Certificate
to the 1990 Trust Trustee in exchange for a 1990 Trust Investor
Certificate and a newly issued 1990 Trust Seller Certificate
(each of which shall be issued to the Master Trust in accordance
with the 1990 Trust Agreement).
(b) On or before the Series Issuance Date relating to
any new Series, the parties hereto (other than the 1990 Trust
Trustee, unless it has any obligations thereunder) shall execute
and deliver a Supplement which shall specify the Principal Terms
of such new Series. The terms of such Supplement may modify or
amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Master Trust Trustee to issue the
Investor Certificates of such new Series and to execute and
deliver the related Supplement is subject to the satisfaction of
the following conditions:
(i) on or before the fifth Business Day
immediately preceding the Series Issuance
Date, the Seller shall have given the Master
Trust Trustee, the Servicer, each Rating
Agency and any Enhancement Provider notice of
such issuance and the Series Issuance Date;
(ii) the Seller shall have delivered to
the Master Trust Trustee the related
Supplement, in form satisfactory to the
Master Trust Trustee, executed by each party
hereto other than the Master Trust Trustee
and the 1990 Trust Trustee;
(iii) the Seller shall have delivered
to the Master Trust Trustee any related
Enhancement Agreement executed by each of the
parties thereto, other than the Master Trust
Trustee;
(iv) the Rating Agency Condition shall
have been satisfied with respect to such
issuance;
(v) such issuance shall not result in
the occurrence of an Early Amortization Event
and the Seller shall have delivered to the
Master Trust Trustee and any Enhancement
Provider a certificate of a Vice President or
more senior officer, dated the Series
Issuance Date, to the effect that the Seller
reasonably believes that such issuance will
not result in the occurrence of an Early
Amortization Event and is not reasonably
expected to result in the occurrence of an
Early Amortization Event at any time in the
future;
(vi) the Seller shall have delivered to
the Master Trust Trustee and any Enhancement
Provider a Tax Opinion and an opinion of
counsel that the Investor Certificates of the
new Series will be characterized as debt or
as a partnership interest (other than an
interest in a publicly traded partnership),
in each case, dated the Series Issuance Date,
with respect to such issuance; and
(vii)if such issuance is to occur prior
to the 1990 Trust Termination Date, the
Master Trust Trustee shall, except as
otherwise provided in any Supplement, have
received a newly issued 1990 Trust Investor
Certificate and 1990 Trust Seller
Certificate, each of which are in a form
satisfactory to the Master Trust Trustee; and
(viii) the amount of the Master
Trust Seller's Interest shall not be less
than the Minimum Master Trust Seller's
Interest as of such date after giving effect
to such issuance and any Prefunding.
Upon satisfaction of the above conditions, the Master Trust
Trustee shall execute the Supplement and issue to the Seller the
Investor Certificates of such Series for execution and redelivery
to the Master Trust Trustee for authentication.
(c) The Seller may surrender the NFSC Certificate to
the Master Trust Trustee in exchange for a newly issued NFSC
Certificate and a second certificate (a "Supplemental
Certificate"), the terms of which shall be defined in a
Supplement to this Agreement (which Supplement shall be subject
to Section 13.01 to the extent that it amends any of the terms of
this Agreement), to be delivered to or upon the order of the
Seller (or the holder of a Supplemental Certificate, in the case
of the transfer or exchange thereof, as provided below), upon
satisfaction of the following conditions:
(i) the Rating Agency Condition shall
have been satisfied with respect to such
exchange (or transfer or exchange as provided
below); and
(ii) the Seller shall have delivered to
the Master Trust Trustee and any Enhancement
Provider a Tax Opinion, dated the date of
such exchange (or transfer or exchange as
provided below), with respect thereto.
The NFSC Certificate shall at all times be beneficially owned by
the Seller; provided, however, NFSC may transfer, assign, sell,
exchange or otherwise convey or pledge, hypothecate or otherwise
grant a security interest (subject to Section 7.06(b) hereof) in
any portion of the Master Trust Seller's Interest represented by
the NFSC Certificate so long as (x) the agreements and other
documentation relating to any such transfer, assignment, sale,
exchange, conveyance, pledge, hypothecation or grant are
consistent with the terms hereof, are subject to all terms hereof
and do not require any action prohibited or prohibit any action
required on the part of the Servicer, the Seller or the Master
Trust Trustee by the terms of this Agreement or necessary to
protect the interests of the Investor Certificateholders and (y)
NFSC shall have provided notice thereof to the Rating Agencies.
Any Supplemental Certificate may be transferred or exchanged only
upon satisfaction of the conditions set forth in clauses (i) and
(ii) of this Section 6.09(c).
SECTION 6.10 Book-Entry Certificates. Unless
otherwise specified in the related Supplement for any Series or
Class, the Investor Certificates, upon original issuance, shall
be issued in the form of several typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
the behalf of, the Seller. The Investor Certificates shall
initially be registered on the Certificate Register in the name
of CEDE & Co., the nominee of the Clearing Agency, and no
Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Investor
Certificates, except as provided in Section 6.12. Unless and
until definitive, fully registered Investor Certificates
("Definitive Certificates") have been issued to Certificate
Owners pursuant to Section 6.12:
(i) the provisions of this Section 6.10 shall be in
full force and effect;
(ii) the Seller, the Servicer and the Master Trust
Trustee may deal with the Clearing Agency or Foreign
Clearing Agency and the applicable Clearing Agency
Participants for all purposes (including the making of
distributions on the Investor Certificates) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section
6.10 conflict with any other provisions of this Agreement,
the provisions of this Section 6.10 shall control; and
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency or Foreign
Clearing Agency and the applicable Clearing Agency
Participants and shall be limited to those established by
law and agreements between such Certificate Owners and the
Clearing Agency or Foreign Clearing Agency and/or the
applicable Clearing Agency Participants. Pursuant to the
Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.12, the
initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor
Certificates to such Clearing Agency Participants. Anything
herein to the contrary notwithstanding, the rights of any
Certificate Owner to receive principal and interest with
respect to any Investor Certificate may be transferred only
by registering the new Certificate Owner on the Certificate
Register kept by the Clearing Agency, and any such transfer
is required to be reflected on the Certificate Register.
SECTION 6.11 Notices to Clearing Agency. Whenever
notice or other communication to the Certificateholders is
required under this Agreement or a Supplement, unless and until
Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 6.12, the Master Trust Trustee shall
give all such notices and communications specified herein to be
given to Investor Certificateholders to the Clearing Agency or
the Foreign Clearing Agency.
SECTION 6.12 Definitive Certificates. If Book-Entry
Certificates have been issued with respect to any Series or Class
and (a) the Seller advises the Master Trust Trustee that the
Clearing Agency or Foreign Clearing Agency is no longer willing
or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Series or Class and the
Master Trust Trustee or the Seller is unable to locate a
qualified successor, (b) the Seller, at its option, advises the
Master Trust Trustee that it elects to terminate the book-entry
system with respect to such Series or Class through the Clearing
Agency or Foreign Clearing Agency or (c) after the occurrence of
a Servicer Termination Event, Certificate Owners of any Series
representing beneficial interests aggregating not less than a
majority of the outstanding Series Invested Amount for such
Series advise the Master Trust Trustee and the Clearing Agency or
Foreign Clearing Agency through the applicable Clearing Agency
Participants in writing that the continuation of a book-entry
system through the applicable Clearing Agency or Foreign Clearing
Agency is no longer in the best interests of the Certificate
Owners, then the Master Trust Trustee shall notify all
Certificate Owners of such Series, through the applicable
Clearing Agency or Foreign Clearing Agency, of the occurrence of
any such event and of the availability of Definitive Certificates
to Certificate Owners of such Series requesting the same. Upon
surrender to the Master Trust Trustee of the Investor
Certificates by the Clearing Agency or Foreign Clearing Agency,
accompanied by registration instructions from the applicable
Clearing Agency or Foreign Clearing Agency for registration, the
Master Trust Trustee shall issue the Definitive Certificates of
such Series. Neither the Seller nor the Master Trust Trustee
shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or
to be performed by the applicable Clearing Agency or Foreign
Clearing Agency shall be deemed to be imposed upon and performed
by the Master Trust Trustee, to the extent applicable with
respect to such Definitive Certificates of such Series and the
Master Trust Trustee shall recognize the Holders of the
Definitive Certificates of such Series as Certificateholders of
such Series hereunder.
SECTION 6.13 Global Certificate; Exchange Date.
(a) If specified in the related Supplement for any Series or
Class, the Investor Certificates will initially be issued in the
form of a single temporary global Certificate (the "Global
Certificate") in bearer form, without interest coupons, in the
denomination of the entire aggregate principal amount of such
Series or Class and substantially in the form set forth in the
exhibit with respect thereto attached to the related Supplement.
The Global Certificate will be authenticated by the Master Trust
Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates.
The Global Certificate may be exchanged as described below for
Bearer or Registered Certificates in definitive form (the
"Definitive Euro-Certificates").
(b) The Manager shall, upon its determination of the
date of completion of the distribution of the Investor
Certificates of such Series or Class, so advise the Master Trust
Trustee, the Seller, the Common Depository, and each Foreign
Clearing Agency forthwith. Without unnecessary delay, but in any
event not prior to the Exchange Date, the Seller will execute and
deliver to the Master Trust Trustee at its London office or its
designated agent outside the United States definitive Bearer
Certificates in an aggregate principal amount equal to the entire
aggregate principal amount of such Series or Class. All Bearer
Certificates so issued and delivered will have Coupons attached.
The Global Certificate may be exchanged for an equal aggregate
principal amount of Definitive Euro-Certificates only on or after
the Exchange Date. A United States institutional investor may
exchange the portion of the Global Certificate beneficially owned
by it only for an equal aggregate principal amount of Registered
Certificates bearing the applicable legend set forth in the form
of Registered Certificate attached to the related Supplement and
having a minimum denomination of $500,000, which may be in
temporary form if the Seller so elects. The Seller may waive the
$500,000 minimum denomination requirement if it so elects. Upon
any demand for exchange for Definitive Euro-Certificates in
accordance with this paragraph, the Seller shall cause the Master
Trust Trustee to authenticate and deliver the Definitive
Euro-Certificates to the Holder (x) outside the United States, in
the case of Bearer Certificates, and (y) according to the
instructions of the Holder, in the case of Registered
Certificates, but in either case only upon representation to the
Master Trust Trustee of a written statement substantially in the
form of Exhibit E with respect to the Global Certificate or
portion thereof being exchanged, signed by a Foreign Clearing
Agency and dated on the Exchange Date or a subsequent date, to
the effect that it has received in writing or by tested telex a
certification substantially in the form of (i) in the case of
beneficial ownership of the Global Certificate or a portion
thereof being exchanged by a United States institutional investor
pursuant to the second preceding sentence, the certificate in the
form of Exhibit F signed by the Manager which sold the relevant
Certificates or (ii) in all other cases, the certificate in the
form of Exhibit G, the certificate referred to in this clause
(ii) being dated on the earlier of the first actual payment of
interest in respect of such Certificates and the date of the
delivery of such Certificate in definitive form. Upon receipt of
such certification, the Master Trust Trustee shall cause the
Global Certificate to be endorsed in accordance with paragraph
(d) below. Any exchange as provided in this Section 6.13 shall
be made free of charge to the holders and the beneficial owners
of the Global Certificate and to the beneficial owners of the
Definitive Euro-Certificates issued in exchange, except that a
person receiving Definitive Euro-Certificates must bear the cost
of insurance, postage, transportation and the like in the event
that such Person does not receive such Definitive
Euro-Certificates in person at the offices of a Foreign Clearing
Agency.
(c) The delivery to the Master Trust Trustee by a
Foreign Clearing Agency of any written statement referred to
above may be relied upon by the Seller and the Master Trust
Trustee as conclusive evidence that a corresponding certification
or certifications has or have been delivered to such Foreign
Clearing Agency pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the
Global Certificate for a Definitive Euro-Certificate or
Certificates, such Global Certificate shall be endorsed by or on
behalf of the Master Trust Trustee to reflect the reduction of
its principal amount by an amount equal to the aggregate
principal amount of such Definitive Euro-Certificate or
Certificates. Until so exchanged in full, such Global
Certificate shall in all respects, be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates
authenticated and delivered hereunder except that the beneficial
owners of such Global Certificate shall not be entitled to
receive payments of interest on the Certificates until they have
exchanged their beneficial interests in such Global Certificate
for Definitive Euro-Certificates.
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
SECTION 7.01 Liability of Seller. The Seller shall
be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller in such
capacity herein.
SECTION 7.02 Merger or Consolidation of, or
Assumption of the Obligations of, the Seller.
(a) Nothing in this Agreement shall prevent any
consolidation or merger of the Seller with or into any other
corporation, or any consolidation or merger of any other
corporation with or into the Seller, or any sale or transfer of
all or substantially all of the property and assets of the Seller
to any other corporation lawfully entitled to acquire the same;
provided that so long as Certificates are outstanding hereunder,
the Seller covenants and agrees that any such consolidation,
merger, sale or transfer shall be upon the condition that the due
and punctual performance and observance of all the terms,
covenants and conditions of this Agreement to be kept or
performed by the Seller shall, by an agreement supplemental
hereto, executed and delivered to the Master Trust Trustee, the
Servicer and, if applicable, the 1990 Trust Trustee, be assumed
by the corporation (if other than the Seller) formed by or
resulting from any such consolidation or merger, or which shall
have received the transfer of all or substantially all of the
property and assets of the Seller, just as fully and effectually
as if such successor corporation had been the original party of
the first part hereto; and in the event of any such sale or
transfer the predecessor Seller may be dissolved, wound up and
liquidated at any time thereafter; and further provided, that so
long as Certificates are outstanding hereunder, the Seller
covenants and agrees that it will not consummate any such
consolidation, merger, sale or transfer until the Rating Agency
Condition is satisfied. The Seller shall also deliver to the
Master Trust Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental agreement is a valid and
binding obligation of such surviving entity, enforceable against
such entity in accordance with its terms.
(b) The obligations of the Seller hereunder shall not
be assignable, nor shall any Person succeed to the obligations of
the Seller hereunder, except in each case in accordance with the
provisions of the foregoing paragraph.
SECTION 7.03 Limitation on Liability of Certain
Persons. No recourse under or upon any obligation or covenant of
this Agreement, or of any Certificate, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Seller or of any successor corporation,
either directly or indirectly through the Seller, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Agreement and the obligations of
the Seller hereunder are solely corporate obligations of the
Seller, and that no such personal liability whatever shall attach
to, or is or shall be incurred by the incorporators,
stockholders, officers or directors, as such, of the Seller or of
any successor corporation, or any of them, under or by reason of
the obligations or covenants of the Seller contained in this
Agreement or in any of the Certificates or implied therefrom; and
that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder,
officer or director, as such, under or by reason of the
obligations or covenants of the Seller contained in this
Agreement or in any of the Certificates or implied therefrom, are
hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement and the issue
of such Certificates. The Seller and any director or officer or
employee or agent of the Seller may rely in good faith on any
document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder.
SECTION 7.04 Seller Indemnification of the Master
Trust and the Master Trust Trustee. The Seller agrees to be
liable, directly to the injured party, for the entire amount of
any losses, claims, damages or liabilities (other than those
incurred by an Investor Certificateholder in the capacity of any
investor in the Investor Certificates or those which arise from
any action by any Investor Certificateholder) arising out of or
based on the arrangement created by this Agreement (to the extent
Master Trust assets remaining after the Investor
Certificateholders have been paid in full are insufficient to pay
such losses, claims, damages or liabilities) and the actions of
the Servicer taken pursuant thereto as though this Agreement
created a partnership under the Illinois Uniform Partnership Act
in which the Seller was a general partner; provided, however,
that the Seller shall not indemnify the Master Trust or the
Investor Certificateholders for any liabilities, costs or
expenses of the Master Trust with respect to any action taken by
the Master Trust Trustee at the request of the Investor
Certificateholders; provided, further, that the Seller shall not
indemnify the Master Trust or the Master Trust Trustee for any
liability, costs or expenses of the Master Trust or the Master
Trust Trustee resulting from the Master Trust Trustee's own
negligent action, its own negligent failure to act or its own
misconduct (subject to the provisions of Section 11.01(c)); and
provided, further, that the Seller shall not indemnify the
Investor Certificateholders with respect to any federal, state or
local income or franchise taxes (or any interest or penalties
with respect thereto) required to be paid by the Investor
Certificateholders in connection herewith to any taxing
authority, which taxes shall be the sole obligation of the
Investor Certificateholders. Any such indemnification shall only
be from assets of the Seller, shall be subordinate to the
security interest of the Master Trust in the Dealer Notes and
shall not constitute a claim against the Seller in excess of
assets of the Seller available to pay such claim in the event
such assets are insufficient to pay the full amount otherwise due
under this Section 7.04. In the event of the appointment of a
Successor Servicer, the Successor Servicer will (from its own
assets and not from the assets of the Master Trust) indemnify and
hold harmless the Seller against and from any losses, claims,
damages and liabilities of the Seller as described in this
Section arising from the actions or omissions of such Successor
Servicer. The provisions of this Section 7.04 shall survive the
termination of this Agreement and the Master Trust and the
resignation or removal of the Master Trust Trustee.
SECTION 7.05 Seller Authorized to File Reports Pursuant to
Securities Exchange Act. The Seller is hereby authorized by the
Master Trust Trustee to file on behalf of the Master Trust all
reports required to be filed with the Securities and Exchange
Commission or any exchange or association of securities dealers
pursuant to the Securities Exchange Act of 1934, as amended, or
any rules or regulations thereunder.
SECTION 7.06 Other Indebtedness. The Seller shall not
incur any indebtedness for borrowed money, or assume or guaranty
any indebtedness of any other Person, other than (a) indebtedness
incurred in connection with Investor Certificates,
(b) indebtedness incurred in connection with the acquisition of
Dealer Notes and assets related thereto or otherwise permitted by
this Agreement, the 1990 Trust Agreement or the other agreements
contemplated hereby or thereby, (c) additional indebtedness to
NFC (i) where NFC has delivered to the Seller an undertaking that
it will not institute against, or join any other Person in
instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law,
for at least one year after all Investor Certificates are paid in
full, (ii) that does not constitute a claim against the Seller in
the event that the Seller's assets are insufficient to pay in
full such obligations, (iii) is nonrecourse against any assets of
the Seller other than the assets pledged to secure such
additional debt, and (iv) which, if secured by the NFSC
Certificate, is fully subordinated to the Investor Certificates,
and (d) other indebtedness not exceeding $9,000 in any calendar
year for reasonable and customary operating expenses, unless the
Rating Agency Condition shall have been satisfied prior to the
incurrence or issuance thereof.
SECTION 7.07 Corporate Actions; Amendment of Certificate
of Incorporation.
(a) So long as any Investor Certificates are
outstanding, the Seller's board of directors will hold
appropriate meetings or will take appropriate action by written
consent in accordance with applicable state laws to authorize all
of the Seller's corporate actions.
(b) Prior to the first Distribution Date following the
1990 Trust Termination Date, the Seller will amend and restate
its Certificate of Incorporation so that such Certificate of
Incorporation, as amended and restated, shall read substantially
as set forth in Exhibit I (together with any changes thereon with
respect to which the Rating Agency Condition shall have been
satisfied), and the Certificateholders, by accepting a
Certificate, shall be deemed to have consented to such amendment
and restatement.
(c) Prior to the first Distribution Date following the
1990 Trust Termination Date, the Seller and the Servicer will
amend and restate their Master Revolving Credit Agreement so that
such Amended and Restated Master Revolving Credit Agreement shall
read substantially as set forth on Exhibit J (together with any
changes thereon with respect to which the Rating Agency Condition
shall have been satisfied).
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
SECTION 8.01 Servicer Liability. The Servicer shall
be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer in such
capacity herein.
SECTION 8.02 Merger or Consolidation of, or
Assumption of the Obligations of, the Servicer. Nothing in this
Agreement shall prevent any consolidation or merger of the
Servicer with or into any other corporation, or any consolidation
or merger of any other corporation with or into the Servicer, or
any sale or transfer of all or substantially all of the property
and assets of the Servicer to any other corporation lawfully
entitled to acquire the same; provided, however, that, so long as
Certificates are outstanding hereunder, the Servicer covenants
and agrees that any such consolidation, merger, sale or transfer
shall be upon the condition that the due and punctual performance
and observance of all the terms, covenants and conditions of this
Agreement to be kept or performed by the Servicer shall, by an
agreement supplemental hereto, executed and delivered to the
Master Trust Trustee, the Servicer and, if applicable, the 1990
Trust Trustee, be assumed by the corporation (if other than the
Servicer) formed by or resulting from any such consolidation or
merger, or which shall have received the transfer of all or
substantially all of the property and assets of the Servicer,
just as fully and effectually as if such successor corporation
had been the original party of the first part hereto; and in the
event of any such sale or transfer the predecessor Servicer may
be dissolved, wound up and liquidated at any time thereafter.
The Servicer shall also deliver to the Master Trust Trustee an
Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer and such
supplemental agreement is a valid and binding obligation of such
surviving entity, enforceable against such entity in accordance
with its terms. The Servicer shall deliver notice of any such
consolidation, merger, sale or transfer to each Rating Agency.
SECTION 8.03 Limitation on Liability of the Servicer
and Others. No recourse under or upon any obligation or covenant
of this Agreement, or of any Certificate, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past,
present or future, of the Servicer or of any successor
corporation, either directly or through the Servicer, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Agreement and the obligations of
the Servicer hereunder are solely corporate obligations of the
Servicer, and that no such personal liability whatever shall
attach to, or is or shall be incurred by the incorporators,
shareholders, officers or directors, as such, of the Servicer or
of any successor corporation, or any of them, under or by reason
of the obligations or covenants of the Servicer contained in this
Agreement or in any of the Certificates or implied therefrom; and
that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, shareholder,
officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations or covenants of the Servicer contained in this
Agreement or in any of the Certificates or implied therefrom, are
hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement and the issue
of such Certificates. The Servicer and any director or officer
or employee or agent of the Servicer may rely in good faith on
any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising
hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Dealer Notes in
accordance with this Agreement which in its reasonable opinion
may involve it in any expense or liability.
SECTION 8.04 Indemnification of the Master Trust and
the Master Trust Trustee. NFC, as Servicer, shall indemnify and
hold harmless the Master Trust and the Master Trust Trustee from
and against any loss, liability, expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged
acts or omissions arising out of activities of the Master Trust
or the Master Trust Trustee pursuant to this Agreement, including
but not limited to any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action,
proceeding or claim; provided, however, that NFC shall not
indemnify the Master Trust or the Investor Certificateholders for
any liabilities, costs or expenses of the Master Trust with
respect to any action taken by the Master Trust Trustee at the
request of the Investor Certificateholders; provided, further,
that NFC shall not indemnify the Master Trust or the Master Trust
Trustee for any liability, costs or expenses of the Master Trust
or the Master Trust Trustee resulting from the Master Trust
Trustee's own negligent action, its own negligent failure to act
or its own misconduct (subject to the provisions of Section
11.01(c)); provided, further, that NFC shall not indemnify the
Master Trust or the Master Trust Trustee for any liability, costs
or expenses of the Master Trust or the Master Trust Trustee
resulting from the negligent action, negligent failure to act or
misconduct of any Successor Servicer; and provided, further, that
NFC shall not indemnify the Master Trust or the Investor
Certificateholders with respect to any federal, state or local
income or franchise taxes (or any interest or penalties with
respect thereto) required to be paid by the Master Trust or the
Investor Certificateholders in connection herewith to any taxing
authority, which taxes shall be the sole obligation of the Master
Trust or the Investor Certificateholders. The provisions of this
Section 8.04 shall survive the termination of this Agreement and
the Master Trust and the resignation or removal of the Master
Trust Trustee.
SECTION 8.05 Servicer Resignation. The Servicer
shall not resign from the obligations and duties hereby imposed
on it except upon determination that (i) the performance of its
duties hereunder is no longer permissible under applicable law
and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i)
above by an Opinion of Counsel to such effect delivered to the
Master Trust Trustee. No such resignations shall become
effective until the Master Trust Trustee or a Successor Servicer
shall have assumed the responsibilities and obligations of the
Servicer in accordance with Section 10.02.
SECTION 8.06 Access to Certain Documentation and
Information Regarding the Dealer Notes. The Servicer shall
provide to the Master Trust Trustee access to the documentation
regarding the Dealer Notes, such access being afforded without
charge but only (i) upon reasonable request, (ii) during normal
business hours, (iii) subject to the Servicer's normal security
and confidentiality procedures and (iv) at offices designated by
the Servicer. Nothing in this Section 8.06 shall derogate from
the obligation of the Seller, the Master Trust Trustee or the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Dealers and the failure of the Servicer
to provide access as provided in this Section 8.06 as a result of
such obligation shall not constitute a breach of this Section
8.06.
SECTION 8.07 Delegation of Duties. In the ordinary
course of business, the Servicer may at any time delegate any of
its duties hereunder to any Person who agrees to conduct such
duties in accordance with the Credit Guidelines. Such delegation
shall not relieve the Servicer of its liabilities and
responsibilities with respect to such duties, and shall not
constitute a resignation within the meaning of Section 8.05
hereof. The Servicer shall provide the Rating Agencies and the
Master Trust Trustee with written notice prior to the delegation
of any material portion of its duties to any Person other than
NFC or its successors and assigns.
SECTION 8.08 Examination of Records. The Servicer
shall clearly and unambiguously identify each Dealer Note
purchased by, or assigned to, the Master Trust in its computer
records to reflect that such Dealer Notes have been conveyed to
the Master Trust pursuant to this Agreement. The Servicer shall,
prior to the sale or transfer to a third party of any dealer note
held in its custody, examine its computer and other records to
determine that it is not a Dealer Note.
ARTICLE IX
EARLY AMORTIZATION EVENTS
SECTION 9.01 Early Amortization Events. If any one
of the following events shall occur:
(a) any of the Seller, NITC, NIC or NFC shall file a
petition commencing a voluntary case under any chapter of the
federal bankruptcy laws; or the Seller or NFC shall file a
petition or answer or consent seeking reorganization,
arrangement, adjustment or composition under any other similar
applicable federal law, or shall consent to the filing of any
such petition, answer or consent; or the Seller or NFC shall
appoint, or consent to the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar
official in bankruptcy or insolvency of it or of any substantial
part of its property; or the Seller or NFC shall make an
assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become
due;
(b) any order for relief against any of the Seller,
NITC, NIC or NFC shall have been entered by a court having
jurisdiction in the premises under any chapter of the federal
bankruptcy laws, and such order shall have continued undischarged
or unstayed for a period of 120 days; or a decree or order by a
court having jurisdiction in the premises shall have been entered
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of the Seller or NFC
under any other similar applicable federal law, and such decree
or order shall have continued undischarged or unstayed for a
period of 120 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of the Seller or NFC
of any substantial part of their property, or for the winding up
or liquidation of their affairs, shall have been entered, and
such decree or order shall have remained in force undischarged or
unstayed for a period of 120 days; or
(c) the Master Trust shall become an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, and shall not be exempt from compliance with
such Act;
then, subject to applicable law, and after the applicable grace
period, if any, an amortization event (an "Early Amortization
Event") shall occur without any notice or other action on the
part of the Master Trust Trustee, the Certificateholders or any
other Beneficiary, immediately upon the occurrence of such event.
SECTION 9.02. Additional Rights Upon the Occurrence of
Certain Events.
(a) Effective as of the 1990 Trust Termination Date,
if an Insolvency Event occurs with respect to the Seller, the
Seller shall on the day such Insolvency Event occurs (the
"Appointment Date") immediately cease to transfer Dealer Notes to
the Master Trust and shall promptly give notice to the Master
Trust Trustee of such Insolvency Event. Notwithstanding any
cessation of the transfer to the Master Trust of additional
Dealer Notes, Dealer Notes transferred to the Master Trust prior
to the occurrence of such Insolvency Event and collections in
respect of such Dealer Notes whenever created or accrued in
respect of such Dealer Notes, shall continue to be a part of the
Master Trust. Upon the Appointment Date, the Master Trust shall
terminate, subject to the liquidation, winding-up and dissolution
procedures described below, and provided that the rights and
obligations of the parties to this agreement shall not terminate
during such liquidation, winding-up and dissolution. Within 15
days of the Appointment Date, the Master Trust Trustee shall (i)
publish a notice in an Authorized Newspaper that an Insolvency
Event has occurred and that the Master Trust Trustee intends to
sell, dispose of or otherwise liquidate the Dealer Notes on
commercially reasonable terms and in a commercially reasonable
manner and (ii) give notice to Investor Certificateholders
describing the provisions of this Section 9.02 and requesting
instructions from such holders. Unless the Master Trust Trustee
shall have received instruction within 90 days from the date
notice pursuant to clause (ii) above is first given from (x)
holders of Investor Certificates evidencing more than 50% of the
Series Invested Amount of each Series or, with respect to any
Series with two or more Classes, of each Class, to the effect
that such Investor Certificateholders disapprove of the
liquidation of the Dealer Notes and wish to reconstitute the
Master Trust pursuant to the terms of this Agreement and (y) each
holder of a Supplemental Certificate to such effect, then the
Master Trust Trustee shall promptly sell, dispose of or otherwise
liquidate the Dealer Notes in a commercially reasonable manner
and on commercially reasonable terms, which shall include the
solicitation of competitive bids. The Master Trust Trustee may
obtain a prior determination from any applicable conservator,
receiver or liquidator that the terms and manner of any proposed
sale, disposition or liquidation are commercially reasonable.
The provisions of Sections 9.01 and 9.02 shall not be deemed to
be mutually exclusive.
(b) The proceeds from the sale, disposition or
liquidation of the Dealer Notes pursuant to paragraph (a) of this
Section 9.02 ("Insolvency Proceeds") shall be immediately
deposited in the Collections Account. The Master Trust Trustee
shall determine conclusively the amount of the Insolvency
Proceeds which are deemed to be Principal Collections and Dealer
Finance Charge Collections. The Insolvency Proceeds shall be
allocated and distributed to Investor Certificateholders in
accordance with Article IV and the terms of each Supplement.
ARTICLE X
SERVICER TERMINATION EVENT
SECTION 10.01 Servicer Termination Event. If any one
of the following events (a "Servicer Termination Event") shall
occur on or after the 1990 Trust Termination Date:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give instructions to the Master Trust
Trustee to make any such payment, transfer or deposit or to give
notice to the Master Trust Trustee as to any action taken under
any Enhancement Agreement on or before the date occurring five
Business Days after the date such payment, transfer or deposit is
required to be made or given, as the case may be, under the terms
of this Agreement;
(b) failure on the part of the Servicer duly to
observe or perform in any material respect any other covenants or
material agreements of the Servicer set forth in this Agreement,
which continues unremedied for a period of 60 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Master
Trust Trustee;
(c) any representation, warranty or certification made
by the Servicer in this Agreement or in any certificate delivered
pursuant to this Agreement shall prove to have been incorrect
when made, which has a material adverse effect on the rights of
the Holders of the Investor Certificates and which
representation, warranty or certification, or the circumstances
or condition which caused such representation, warranty or
certification to be incorrect, continues to be incorrect or
uncured in any material respect for a period of 60 days after the
date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the
Master Trust Trustee;
(d) the Servicer shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws;
or the Servicer shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment, or composition
under any other similar applicable Federal law, or shall consent
to the filing of any such petition, answer, or consent; or the
Servicer shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator
or other similar official in bankruptcy or insolvency of it or of
any substantial part of its property; or the Servicer shall make
an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become
due; or
(e) any order for relief against the Servicer shall
have been entered by a court having jurisdiction in the premises
under any chapter of the federal bankruptcy laws, and such order
shall have continued undischarged or unstayed for a period of 120
days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or
composition of the Servicer under any other similar applicable
federal law, and such decree or order shall have continued
undischarged or unstayed for a period of 120 days; or a decree or
order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator, or other similar official in bankruptcy
or insolvency of the Servicer or of any substantial part of its
property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have
remained in force undischarged or unstayed for a period of 120
days; then, in the event of any Servicer Termination Event, so
long as the Servicer Termination Event shall not have been
remedied, the Master Trust Trustee or the holders of Investor
Certificates evidencing not less than a majority of the Trust
Invested Amount, by notice then given in writing to the Servicer
(a "Termination Notice"), shall terminate all of the rights and
obligations of the Servicer under this Agreement. After receipt
by the Servicer of such Termination Notice, and on the date that
a Successor Servicer shall have been appointed by the Master
Trust Trustee pursuant to Section 10.02, all authority and power
of the Servicer under this Agreement shall pass to and be vested
in a Successor Servicer; and, without limitation, the Master
Trust Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments upon the failure
of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer
of servicing rights. The Servicer agrees to cooperate with the
Master Trust Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to
conduct servicing hereunder, including, without limitation, the
transfer to such Successor Servicer of all authority of the
Servicer to service the Dealer Notes provided for under this
Agreement, including, without limitation, all authority over all
Principal Collections, Dealer Finance Charge Collections and NITC
Finance Charges which shall on the date of transfer be held by
the Servicer for deposit, or which have been deposited by the
Servicer in any Series Account, or which shall thereafter be
received with respect to the Dealer Notes, and in assisting the
Successor Servicer. The terminated Servicer shall promptly make
available its electronic records relating to the Dealer Notes to
the Successor Servicer in such electronic forms as the Successor
Servicer may reasonably request and shall promptly make available
to the Successor Servicer all other records, correspondence and
documents necessary for the continued servicing of the Dealer
Notes in the manner and at such times as the Successor Servicer
shall reasonably request. To the extent that compliance with
this Section 10.01 shall require the terminated Servicer to
disclose to the Successor Servicer information of any kind which
the Servicer reasonably deems to be confidential, the Successor
Servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall deem
necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of
performance under Section 10.01(a) for a period of 10 Business
Days or under Section 10.01(b) or (c) for a period of 60 Business
Days, shall not constitute a Servicer Termination Event if such
delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declared
or undeclared war, public disorder, rebellion or sabotage,
epidemics, landslides, lightning, fire, hurricanes, earthquakes,
floods or similar causes. The preceding sentence shall not
relieve the Servicer from using its best efforts to perform its
respective obligations in a timely manner in accordance with the
terms of this Agreement and the Servicer shall provide the Master
Trust Trustee, any Enhancement Providers, the Seller and the
Certificateholders with an Officer's Certificate giving prompt
notice of such failure or delay by it, together with a
description of its efforts so to perform its obligations.
SECTION 10.02 Master Trust Trustee to Act; Appointment
of Successor Servicer.
(a) On or after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.01, the Servicer shall
continue to perform all servicing functions under this Agreement
until the date specified in the Termination Notice or otherwise
specified by the Master Trust Trustee in writing or, if no such
date is specified in such Termination Notice, or otherwise
specified by the Master Trust Trustee, until a date mutually
agreed upon by the Servicer and Master Trust Trustee. The Master
Trust Trustee shall as promptly as possible appoint a successor
Servicer (the "Successor Servicer") and such Successor Servicer
shall accept its appointment by a written assumption in a form
acceptable to the Master Trust Trustee. In the event that a
Successor Servicer has not been appointed and has not accepted
its appointment at the time when the Servicer ceases to act as
Servicer, the Master Trust Trustee in its capacity as Master
Trust Trustee without further action shall automatically be
appointed the Successor Servicer. Notwithstanding the above, the
Master Trust Trustee shall, if it is legally unable so to act,
petition a court of competent jurisdiction to appoint any bank or
other corporation having a net worth of not less than
$100,000,000 and whose regular business includes the servicing of
wholesale chattel paper as the Successor Servicer hereunder. The
Master Trust Trustee shall immediately give notice to the Rating
Agencies, any Enhancement Providers, and the Certificateholders
upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall
be the successor in all respects to the terminated Servicer with
respect to servicing functions under this Agreement and shall be
subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and
provisions hereof and the Successor Servicer shall be deemed to
have made the representations and warranties set forth in Section
3.03 hereof, and all references in this Agreement to the Servicer
shall be deemed to refer to the Successor Servicer except, if
agreed upon by NFC and the Successor Servicer, for the references
in Section 11.05 which shall continue to refer to NFC; provided,
however, that NFC shall not pay or reimburse, and the Successor
Servicer shall pay and reimburse, the Master Trust Trustee
pursuant to Section 11.05 for any expense, disbursement or
advance of the Master Trust Trustee related to or arising as a
result of the negligence or bad faith of the Successor Servicer.
The Successor Servicer shall expressly be authorized, subject to
Section 8.07, to delegate any of its duties hereunder to NFC on
and after the date of any transfer of servicing pursuant to this
Article X. Any Successor Servicer, by its acceptance of its
appointment, will automatically agree too be bound by the terms
and provisions of any Enhancement Agreement.
(c) In connection with such appointment and
assumption, the Seller may make such arrangements for the
compensation of the Successor Servicer out of Dealer Finance
Charges, as it and such Successor Servicer shall agree; provided,
however, that the Seller shall be responsible for payment of the
Seller's portion of the Servicing Fee as determined pursuant to
this Agreement and any Supplement and all other amounts in excess
of the Investors' Servicing Fee, and that no such monthly
compensation paid out of Collections shall be in excess of the
Investors' Servicing Fee permitted by the Servicer. The holders
of the Master Trust Seller's Certificates agree that if NFC (or
any Successor Servicer) is terminated as Servicer hereunder, the
portion of Collections to be paid to the Seller shall be reduced
by an amount sufficient to pay Seller's share of the compensation
of the Successor Servicer.
(d) All authority and power granted to the Successor
Servicer under this Agreement shall automatically cease and
terminate upon termination of the Master Trust pursuant to
Section 12.01, and shall pass to and be vested in the Seller and,
without limitation, the Seller is hereby authorized and empowered
to execute and deliver, on behalf of the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer
of servicing rights. The Successor Servicer agrees to cooperate
with the Seller in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct
servicing on the Dealer Notes. The Successor Servicer shall
transfer its electronic records relating to the Dealer Notes to
the Seller in such electronic form as the Seller may reasonably
request and shall transfer all other records, correspondence and
documents to the Seller in the manner and at such times as the
Seller shall reasonably request. To the extent that compliance
with this Section 10.02 shall require the Successor Servicer to
disclose to the Seller information of any kind which the
Successor Servicer deems to be confidential, the Seller shall be
required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem
necessary to protect its interests.
SECTION 10.03 Notification to Investor
Certificateholders. Upon the occurrence of any Servicer
Termination Event (whether under this Agreement or under (and as
defined in) the 1990 Trust Agreement), the Servicer shall give
prompt written notice thereof to the Master Trust Trustee and the
Master Trust Trustee shall give notice to any Enhancement
Provider and to the Investor Certificateholders at their
respective addresses appearing in the Certificate Register. Upon
any termination or appointment of a Successor Servicer pursuant
to this Article X or under the 1990 Trust Agreement, as the case
may be, the Master Trust Trustee shall give prompt written notice
thereof to the Rating Agencies, any Enhancement Provider and to
Investor Certificateholders at their respective addresses
appearing in the Certificate Register.
SECTION 10.04 Waiver of Past Breaches. The holders of
Investor Certificates evidencing fractional undivided interests
aggregating not less than 51% of the Trust Invested Amount may,
on behalf of all holders of Investor Certificates, waive the
effect of any Servicer Termination Event by the Servicer or
breach of the Seller in the performance of its obligations
hereunder and its consequences, except a failure to make any
required deposits or payments in accordance with Section 4.03;
provided that if any Variable Funding Certificate is
then-outstanding, the actual principal amount then-outstanding
under each such Variable Funding Certificate shall be the
relevant amount for purposes of determining the Trust Invested
Amount and the vote required under this Section 10.04. Upon any
such waiver of a past breach, such breach shall cease to exist,
and any breach arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other breach or impair any
right consequent thereon except to the extent expressly so waived.
ARTICLE XI
THE MASTER TRUST TRUSTEE
SECTION 11.01 Duties of Master Trust Trustee.
(a) The Master Trust Trustee, prior to the occurrence
of a Servicer Termination Event and after the curing of all
Servicer Termination Events which may have occurred, undertakes
to perform such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or duties
shall be read into this Agreement against the Master Trust
Trustee. If a Servicer Termination Event has occurred, the
Master Trust Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of such man's own
affairs.
(b) The Master Trust Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Master
Trust Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them
to determine whether they conform to the requirements of this
Agreement. The Master Trust Trustee shall give prompt written
notice to the Certificateholders of any lack of conformity of any
such instrument to the applicable requirements of this Agreement
discovered by the Master Trust Trustee which would entitle a
specified percentage of the Certificateholders to take any action
pursuant to this Agreement.
(c) Subject to Section 11.01(a), no provision of this
Agreement shall be construed to relieve the Master Trust Trustee
from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) the Master Trust Trustee shall not be liable
for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Master Trust Trustee, unless it shall be proved that
the Master Trust Trustee was negligent in ascertaining
the pertinent facts; and
(ii) the Master Trust Trustee shall not be charged
with knowledge of any failure by the Servicer to comply
with the obligations of the Servicer referred to in
Section 10.01 or with knowledge of any Early
Amortization Event or Investment Event unless a
Responsible Officer of the Master Trust Trustee obtains
actual knowledge of such failure or event.
(d) The Master Trust Trustee shall not be required to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in
this Agreement shall in any event require the Master Trust
Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this
Agreement except during such time, if any, as the Master Trust
Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with
the terms of this Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Master Trust Trustee shall take no action
reasonably likely to impair the interests of the Master Trust in
any Dealer Note existing as of the 1990 Trust Termination Date or
thereafter created or to impair the value of any Dealer Note now
existing or hereafter acquired by, or assigned to, the Master
Trust.
(f) Except as provided in this Agreement, the Master
Trust Trustee shall have no power to vary the corpus of the
Master Trust including, without limitation, the power to (i)
accept any substitute obligation for Dealer Notes initially
assigned to the Master Trust under Section 2.02, (ii) add any
other investment, obligation or security to the Master Trust,
(iii) withdraw from the Master Trust any Dealer Notes or
Investment Securities.
(g) In the event that the Paying Agent shall fail to
perform any obligation, duty or agreement in the manner or on the
day required to be performed by the Paying Agent under this
Agreement, the Master Trust Trustee shall be obligated promptly
to perform such obligation, duty or agreement in the manner so
required.
(h) If the Servicer has agreed to transfer any of its
dealer notes (other than the Dealer Notes) to another Person,
upon the written request of the Servicer, the Master Trust
Trustee will enter into such agreements with the transferee of
such dealer notes as are necessary and desirable to separately
identify the rights of the Master Trust and such other Person in
the Servicer's dealer notes; provided that the Master Trust
Trustee shall not be required to enter into any agreement which
could adversely affect the interests of the Certificateholders;
and provided, further that the Servicer shall provide the Rating
Agencies with prior notice of any agreement to be entered into
pursuant to this Section 11.01(h).
(i) Notwithstanding any other provision contained
herein, the Master Trust Trustee is not acting as, and shall not
be deemed to be, a fiduciary for any Enhancement Provider in its
capacity as such or as a Beneficiary, and the Master Trust
Trustee's sole responsibility with respect to said parties shall
be to perform those duties with respect to said parties as are
specifically set forth herein and no implied duties or
obligations shall be read into this Agreement against the Master
Trust Trustee with respect to any such party.
SECTION 11.02 Certain Matters Affecting the Master
Trust Trustee. Except as otherwise provided in Section 11.01:
(a) the Master Trust Trustee may rely on and shall be
protected in acting on, or in refraining from acting in accord
with, any resolution, Officer's Certificate, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to
have been signed or presented to it pursuant to this Agreement by
the proper party or parties;
(b) the Master Trust Trustee may consult with counsel
of its selection and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) the Master Trust Trustee shall be under no
obligation to exercise any of the rights or powers vested in it
by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Master Trust Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Master Trust Trustee of the
obligations, upon the occurrence of a Servicer Termination Event,
to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the
circumstances in the conduct of such man's own affairs;
(d) the Master Trust Trustee shall not be personally
liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(e) the Master Trust Trustee shall not be bound to
make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report
notice, request, consent, order, approval, bond or other paper or
document;
(f) the Master Trust Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a custodian, and
the Master Trust Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney
or custodian appointed with due care by it hereunder; and
(g) except as may be required by Section 11.01(a), the
Master Trust Trustee shall not be required to make any initial or
periodic examination of any documents or records relating to the
Dealer Notes for the purpose of establishing the presence or
absence of defects or the compliance by the Seller with its
representations and warranties or for any other purpose.
SECTION 11.03 Master Trust Trustee Not Liable for
Recitals in Certificates. The Master Trust Trustee assumes no
responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in
Section 11.14, the Master Trust Trustee makes no representations
as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the
Certificates) or of the 1990 Trust Seller Certificate or any 1990
Trust Investor Certificate or of any Dealer Note or related
document. The Master Trust Trustee shall not be accountable for
the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Seller in respect of the
Dealer Notes or any deficiency in amounts deposited in any Series
Account by the Servicer.
SECTION 11.04 Master Trust Trustee May Not Own
Investor Certificates. The Master Trust Trustee may not hold
certificates issued under the Master Trust in its own name (but
may do so in a fiduciary capacity).
SECTION 11.05 The Servicer to Pay Master Trust
Trustee's Fees and Expenses. The Servicer covenants and agrees
to pay to the Master Trust Trustee from time to time, and the
Master Trust Trustee shall be entitled to receive, reasonable
compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Master Trust Trustee, and the
Servicer will pay or reimburse the Master Trust Trustee (without
reimbursement from any Series Account or otherwise) upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Master Trust Trustee in accordance with
any of the provisions of this Agreement (including the reasonable
fees and expenses of its agents and counsel) except any such
expense, disbursement or advance as may arise from its negligence
or bad faith and except as provided in the following sentence.
If the Master Trust Trustee is appointed Successor Servicer
pursuant to Section 10.02, the provisions of this Section 11.05
shall not apply to expenses, disbursements and advances made or
incurred by the Master Trust Trustee in its capacity as Successor
Servicer and the compensation of the Master Trust Trustee as
Successor Servicer shall be determined in accordance with Section
10.02. The provisions of this Section 11.05 shall survive the
termination of this Agreement and the Master Trust and the
resignation or removal of the Master Trust Trustee.
SECTION 11.06 Eligibility Requirements for Master
Trust Trustee. The Master Trust Trustee hereunder shall at all
times be a bank or trust company in good standing, organized and
doing business under the laws of the United States of America or
any state thereof authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 11.06, the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Master Trust
Trustee shall at all times satisfy the requirements of Section
26(a)(1) of the Investment Company Act of 1940, as amended. In
case at any time the Master Trust Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.06,
the Master Trust Trustee shall resign immediately in the manner
and with the effect specified in Section 11.07.
SECTION 11.07 Resignation or Removal of Master Trust
Trustee.
(a) The Master Trust Trustee may, upon the giving of
written notice to the Seller and the appointment of a successor
trustee, resign and be discharged from the trust hereby created.
Upon receiving such notice of resignation, the Seller shall
promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
resigning Master Trust Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Master Trust Trustee
may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Master Trust Trustee shall
cease to be eligible in accordance with the provisions of Section
11.06 and shall fail to resign after written request therefor by
the Seller, or if at any time the Master Trust Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Master Trust Trustee or of its
property shall be appointed, or any public officer shall take
charge or control of the Master Trust Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Seller may remove the Master Trust Trustee
and promptly appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to
the Master Trust Trustee so removed and one copy to the successor
trustee.
(c) Any resignation or removal of the Master Trust
Trustee and appointment of a successor trustee pursuant to any of
the provisions of this Section 11.07 shall not become effective
until acceptance of appointment by the successor trustee as
provided in Section 11.08.
SECTION 11.08 Successor Master Trust Trustee.
(a) Any successor trustee appointed as provided in
Section 11.07 shall execute, acknowledge and deliver to the
Seller and to its predecessor Master Trust Trustee an instrument
accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Master Trust Trustee
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Master
Trust Trustee herein. The predecessor Master Trust Trustee shall
deliver to the successor trustee all documents and statements
held by it hereunder; and the Seller and the predecessor Master
Trust Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as
provided in this Section 11.08 unless at the time of such
acceptance such successor trustee shall be eligible under the
provisions of Section 11.06.
(c) Upon acceptance of appointment by a successor
trustee as provided in this Section 11.08, such successor trustee
shall mail notice of such succession hereunder to the Rating
Agencies, any Enhancement Provider and to all Certificateholders
at their addresses as shown in the Certificate Register.
SECTION 11.09 Merger or Consolidation of Master Trust
Trustee. Any Person into which the Master Trust Trustee may be
merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to
which the Master Trust Trustee shall be a party, or any Person
succeeding to the corporate trust business of the Master Trust
Trustee, shall be the successor of the Master Trust Trustee
hereunder, provided such corporation shall be eligible under the
provisions of Section 11.06, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
SECTION 11.10 Appointment of Co-Master Trust Trustee
or Separate Master Trust Trustee.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Master
Trust may at the time be located, the Master Trust Trustee shall
have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or
any part of the Master Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Master Trust, or any part
thereof, and, subject to the other provisions of this Section
11.10, such powers, duties, obligations, rights and trusts as the
Master Trust Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under
Section 11.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be
required under Section 11.08.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Master Trust Trustee
shall be conferred or imposed upon and exercised or
performed by the Master Trust Trustee and such separate
trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized
to act separately without the Master Trust Trustee
joining in such act), except to the extent that under
any laws of any jurisdiction in which any particular
act or acts are to be performed (whether as Master
Trust Trustee hereunder or as successor to the Servicer
hereunder), the Master Trust Trustee shall be
incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and
obligations (including the holding of title to the
Master Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at
the direction of the Master Trust Trustee;
(ii) no trustee hereunder shall be liable by
reason of any act or omission of any other trustee
hereunder; and
(iii) the Master Trust Trustee may at any time
accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the
Master Trust Trustee shall be deemed to have been given to each
of the then separate trustees and co-trustees, as effectively as
if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Master Trust Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Master Trust
Trustee. Every such instrument shall be filed with the Master
Trust Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Master Trust Trustee its agent or attorney-in-fact
with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect to this Agreement
on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Master Trust
Trustee, to the extent permitted by law, without the appointment
of a new or successor trustee.
SECTION 11.11 Tax Returns. In the event the Master
Trust shall be required to file tax returns, the Servicer shall
cause a firm of nationally recognized accountants to prepare any
tax returns required to be filed by the Master Trust and shall
remit such returns to the Master Trust Trustee for signature at
least five days before such returns are due to be filed. The
Servicer shall cause the Master Trust Trustee to deliver to each
Certificateholder, as may be required by the Code and applicable
treasury regulations or otherwise, such information as may be
required to enable each Certificateholder to prepare its federal
income tax returns. The Master Trust Trustee upon request will
furnish the Servicer with all such information known to the
Master Trust Trustee as may be reasonably required in connection
with the preparation of all tax returns of the Master Trust, and
shall cause such tax returns to be signed in the manner required
by law.
SECTION 11.12 Master Trust Trustee May Enforce Claims
Without Possession of Certificates. All rights of action and
claims under this Agreement or the Certificates may be prosecuted
and enforced by the Master Trust Trustee without the possession
of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted
by the Master Trust Trustee shall be brought in its own name as
trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements
and advances of the Master Trust Trustee, its agents and counsel,
be for the ratable benefit of the Certificateholders in respect
of which such judgment has been obtained.
SECTION 11.13 Suits for Enforcement.
(a) If a Servicer Termination Event shall occur and be
continuing, the Master Trust Trustee, in its discretion may,
subject to the provisions of Section 10.01, proceed to protect
and enforce its rights and the rights of the Certificateholders
under this Agreement by a suit, action or proceeding in equity or
at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of
the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the
Master Trust Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Master
Trust Trustee or the Certificateholders.
(b) Nothing herein contained shall be deemed to
authorize the Master Trust Trustee to authorize or consent to or
accept or adopt on behalf of any Certificateholder any plan of
reorganization, arrangement, adjustment or composition affecting
the Certificates or the rights of any Certificateholder thereof
or to authorize the Master Trust Trustee to vote in respect of
the claim of any Certificateholder in any such proceeding.
SECTION 11.14 Representations and Warranties of Master
Trust Trustee. The Master Trust Trustee represents and warrants
that:
(a) the Master Trust Trustee is a banking corporation
organized, existing and in good standing under the laws of the
State of New York;
(b) the Master Trust Trustee has full power, authority
and right to execute, deliver and perform this Agreement and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Agreement; and
(c) this Agreement has been duly executed and
delivered by the Master Trust Trustee.
SECTION 11.15 Maintenance of Office or Agency. The
Seller will maintain at its expense in the Borough of Manhattan,
The City of New York, an office or offices or agency or agencies
where notices and demands to or upon the Master Trust Trustee in
respect of the Certificates and this Agreement may be served.
The Seller initially appoints the Corporate Trust Office as its
office for such purposes. The Master Trust Trustee will give
prompt written notice to the Servicer and to Certificateholders
of any change in the location of the Certificate Register or any
such office or agency.
SECTION 11.16 Requests for Agreement. A copy of the
Agreement may be obtained by any Investor Certificateholder at
any time and, prior to the 1990 Trust Termination Date, a copy of
the 1990 Trust Agreement may be obtained by any Investor
Certificateholder, in each case by a request in writing to the
Master Trust Trustee addressed to the Corporate Trust Office and
any such copy will be provided at the expense of the Servicer.
ARTICLE XII
TERMINATION
SECTION 12.01 Termination of Master Trust.
(a) The Master Trust and the respective obligations
and responsibilities of the Seller, the Servicer and the Master
Trust Trustee created hereby (other than the obligation of the
Master Trust Trustee to make payments to Certificateholders as
hereafter set forth) shall terminate, except with respect to the
duties described in Sections 7.04, 8.04, 11.05 and 12.03(b), upon
the earlier of (the date of the first to occur of (i) and (ii)
shall be the "Final Master Trust Termination Date"):
(i) the day following the Distribution Date on
which the Series Invested Amount for all Series is
zero;
(ii) the time provided in Section 9.02(b); and
(iii)a day which is 21 years less one day after
the death of the officers and the last survivor of all
the lineal descendants of every officer of the Master
Trust Trustee who are living on the date hereof;
provided, however, that if at any time any such rights,
privileges or options shall be or become valid under
applicable law for a period subsequent to the 21st
anniversary of the death of such last survivor (or,
without limiting the generality of the foregoing, if
legislation shall become effective providing for the
validity or permitting the effective grant of such
rights, privileges and options for a period in gross,
exceeding the period for which such rights, privileges
and options are hereinabove stated to extend and be
valid), then such rights, privileges or options shall
not terminate as aforesaid but shall extend to and
continue in effect, but only if such nontermination and
extension shall then be valid under applicable law,
until one day prior to such time as the same shall,
under applicable law, cease to be valid.
(b) Effective on the 1990 Trust Termination Date, if
on the Distribution Date in the month immediately preceding the
month in which the Final Master Trust Termination Date occurs
(after giving effect to all transfers, withdrawals and deposits
to occur on such date and the payment of principal on any Series
of Certificates to be made on such Distribution Date pursuant to
Article IV) the Series Invested Amount of any Series would be
greater than zero, the Servicer shall sell within 30 days of such
Distribution Date all of the Dealer Notes owned by the Master
Trust if it can do so in a commercially reasonable manner. The
Servicer shall notify each Enhancement Provider of the proposed
sale of the Dealer Notes and shall provide each Enhancement
Provider an opportunity to bid on the Dealer Notes. The Seller
shall have the right of first refusal to purchase the Dealer
Notes on terms equivalent to the best purchase offer as
determined by the Servicer in its sole discretion. The proceeds
of such sale shall be treated as Collections on the Dealer Notes
and shall be allocated in accordance with Article IV; provided,
however, that the Master Trust Trustee shall determine
conclusively the amount of such proceeds which are allocable to
Dealer Finance Charge Collections and the amount of such proceeds
which are allocable to Principal Collections. During such 30-day
period, the Servicer shall continue to collect Collections on the
Dealer Notes and allocate and deposit such payments in accordance
with the provisions of Article IV.
SECTION 12.02 Optional Termination. (a) If so
provided in any Supplement, the Seller may, but shall not be
obligated to, cause a final distribution to be made in respect of
the related Series of Certificates on a Distribution Date
specified in such Supplement by depositing into the applicable
Series Account, not later than the Transfer Date preceding such
Distribution Date, for application in accordance with Section
12.03, the amount specified in such Supplement.
(b) The amount deposited pursuant to subsection
12.02(a) shall be paid to the Investor Certificateholders of the
related Series pursuant to Section 12.03 on the related
Distribution Date following the date of such deposit. All
Certificates of a Series with respect to which a final
distribution has been made pursuant to subsection 12.02(a) shall
be delivered by the Holder to, and be cancelled by, the Transfer
Agent and be disposed of in a manner satisfactory to the Master
Trust Trustee and the Seller.
SECTION 12.03 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of
any Series or Class may surrender their Certificates for payment
of the final distribution with respect to such Series or Class
and cancellation, shall be given (subject to at least five
Business Days' prior notice from the Servicer to the Master Trust
Trustee) by the Master Trust Trustee to Investor
Certificateholders of such Series or Class mailed not later than
the Determination Date of the month of such final distribution
specifying (i) the Distribution Date upon which final payment of
such Investor Certificates will be made upon presentation and
surrender of such Investor Certificates at the office or offices
therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Investor Certificates at
the office or offices therein specified. The Servicer's notice
to the Master Trust Trustee in accordance with the preceding
sentence shall be accompanied by an Officer's Certificate setting
forth the information specified in Article V covering the period
during the then current calendar year through the date of such
notice and setting forth the date of such final distribution.
The Master Trust Trustee shall give such notice to the Transfer
Agent and the Paying Agent at the time such notice is given to
such Investor Certificateholders.
(b) Notwithstanding the termination of the Master
Trust pursuant to Section 12.01(a) or a final distribution to the
Investor Certificateholders of any Series or Class, all funds
then on deposit in the Collections Account or any Series Account
allocable to the related Series or Class shall continue to be
held in trust for the benefit of the Certificateholders of the
related Series or Class and the Paying Agent or the Master Trust
Trustee shall pay such funds to the Certificateholders of the
related Series or Class upon surrender of their Certificates. In
the event that all of the Investor Certificateholders of any
Series or Class shall not surrender their Certificates for
cancellation within six months after the date specified in the
above-mentioned written notice, the Master Trust Trustee shall
give a second written notice to the remaining Investor
Certificateholders of such Series or Class upon receipt of the
appropriate records from the Transfer Agent to surrender their
Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice
all the Investor Certificates of such Series or Class shall not
have been surrendered for cancellation, the Master Trust Trustee
may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Investor
Certificateholders of such Series or Class concerning surrender of
their Certificates, and the cost thereof shall be paid out of the
funds in the Collections Account or any Series Account held for
the benefit of such Investor Certificateholders. Income from the
investment of funds which remain on deposit in the Collections
Account or any Series Account pursuant to this Section 12.03(b)
shall be paid to the Seller. The Master Trust Trustee shall pay
to the Seller any monies held by it for the payment of principal
or interest that remain unclaimed for two years. After payment
to the Seller, Investor Certificateholders entitled to the money
must look to the Seller for payment as general creditors unless
an applicable abandoned property law designates another Person.
(c) In the event that the Series Invested Amount with
respect to any Series is greater than zero on its Series
Termination Date (after giving effect to deposits and
distributions otherwise to be made on such Series Termination
Date), the Master Trust Trustee will sell or cause to be sold on
such Series Termination Date, Dealer Notes (or interests therein)
in an amount equal to 110% of the Series Invested Amount with
respect to such Series on such Series Termination Date (after
giving effect to such deposits and distributions) but in no event
shall any such sale of Dealer Notes exceed the Series Allocation
Percentage of the Dealer Notes and the amount on deposit in the
Excess Funding Account on such date. The proceeds from such sale
shall be immediately deposited into the Collection Accounts for
the benefit of the Investor Certificateholders of such Series and
shall be allocated and distributed to the Investor
Certificateholders of such Series in accordance with the terms of
the applicable Supplement.
(d) All Certificates surrendered for payment of the
final distribution with respect to such Certificates and
cancellation shall be cancelled by the Transfer Agent and be
disposed of in a manner satisfactory to the Master Trust Trustee
and the Seller.
SECTION 12.04 Seller's Termination Rights. Upon the
termination of the Master Trust pursuant to Section 12.01 and the
surrender of the Master Trust Seller's Certificates, the Master
Trust Trustee shall return to the Seller (without recourse,
representation or warranty, except for the warranty that since
the date of transfer by the Seller under this Agreement the
Master Trust Trustee has not sold, transferred or encumbered the
1990 Trust Seller Certificate or any 1990 Trust Investor
Certificate held by the Master Trust or, as the case may be, any
Dealer Notes or any interest therein) all right, title and
interest of the Master Trust in and to the 1990 Trust Seller
Certificate or any 1990 Trust Investor Certificate held by the
Master Trust or, as the case may be, the Dealer Notes, whether
then existing or thereafter created, all monies due or to become
due with respect thereto and all proceeds thereof except for
amounts held by the Master Trust Trustee pursuant to Section
12.03(b), the security interests in the related Financed Vehicles
and the Insurance Proceeds. The Master Trust Trustee shall
execute and deliver such instruments of transfer and assignment,
in each case without recourse, as shall be reasonably requested
by the Seller to vest in the Seller all right, title and interest
which the Master Trust had in the Dealer Notes, as the case may
be.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment. (a) This Agreement or any
Supplement may be amended from time to time (including in
connection with the issuance of a Supplemental Certificate) by
the Servicer, the Seller and the Master Trust Trustee without the
consent of any of the Certificateholders; provided that such
action shall not, as evidenced by an Officer's Certificate of the
Servicer, addressed and delivered to the Master Trust Trustee,
adversely affect in any material respect the interests of any
Investor Certificateholder.
(b) This Agreement or any Supplement may also be
amended from time to time (including in connection with the
issuance of a Supplemental Certificate) by the Servicer, the
Seller and the Master Trust Trustee, with the consent of the
Holders of Investor Certificates evidencing not less than 66-_%
of the aggregate Series Invested Amounts of the Investor
Certificates of all adversely affected Series, for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or any Supplement or of
modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall (i) reduce in any
manner the stated amount of or delay the stated timing of any
distributions to be made to Investor Certificateholders or the
stated amount available under any Enhancement without the consent
of each affected Investor Certificateholder, (ii) change the
definition of or the manner of calculating the
Certificateholder's Interest of any Series without the consent of
each affected Investor Certificateholder, (iii) adversely affect
the rating of any Series or Class by each Rating Agency without
the consent of the Holders of Investor Certificates of such
Series or Class evidencing not less than 66-2/3% of the aggregate
unpaid principal amount of the Investor Certificates of such
Series or Class or (iv) reduce the percentage required to consent
to any amendment without the consent of each Investor
Certificateholder.
(c) Prior to the execution of any such amendment or
consent the Servicer shall furnish notification of the substance
thereof to each Rating Agency. Promptly after the execution of
any such amendment or consent the Master Trust Trustee shall
furnish written notification of the substance of such amendment
to each Investor Certificateholder, and the Servicer shall
furnish notification of the substance of such amendment to each
Enhancement Provider.
(d) It shall not be necessary for the consent of
Investor Certificateholders under this Section 13.01 to approve
the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable
requirements as the Master Trust Trustee may prescribe.
(e) Any Supplement executed and delivered pursuant to
Section 6.09 and any amendments regarding the removal of Dealer
Notes from the Master Trust as provided in Section 2.06, executed
in accordance with the provisions hereof, shall not be considered
amendments to this Agreement for the purpose of Sections 13.01(a)
and (b).
(f) In connection with any amendment, the Master Trust
Trustee shall be entitled to receive an Opinion of Counsel and an
Officer's Certificate from the Seller or Servicer to the effect
that the amendment complies with all requirements of this
Agreement. The Master Trust Trustee may, but shall not be
obligated to, enter into any amendment which affects the Master
Trust Trustee's rights, duties or immunities under this Agreement
or otherwise.
SECTION 13.02 Protection of Right, Title and Interest
to Master Trust.
(a) The Servicer shall cause all financing statements
and continuation statements and any other necessary documents
covering the Certificateholders and the Master Trust Trustee's
right, title and interest in and to the 1990 Trust Seller
Certificate and any 1990 Trust Investor Certificate held by the
Master Trust or, as the case may be, Dealer Notes to be promptly
filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and
interest of the Master Trust Trustee hereunder to all property
comprising the Master Trust. The Servicer shall deliver to the
Master Trust Trustee file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided
above, as soon as available following such recording,
registration or filing. The Seller shall cooperate fully with
the Servicer in connection with the obligations set forth above
and will execute any and all documents reasonably required to
fulfill the intent of this Section 13.02(a). The Master Trust
Trustee shall not bear responsibility for filing status.
(b) Within thirty days after the Seller makes any
change in its name, identity or corporate structure which would
make any financing statement or continuation statement filed in
accordance with paragraph (a) above seriously misleading within
the meaning of Section 9-402(7) of the UCC, the Seller shall give
the Master Trust Trustee notice of any such change and shall file
such financing statements or amendments as may be necessary to
continue the perfection of the Master Trust's security interest
in the Dealer Notes, all monies due or to become due with respect
thereto and all proceeds thereof, the security interests in the
related Financed Vehicles and the Insurance Proceeds.
(c) Each of the Seller and the Servicer will give the
Master Trust Trustee prompt written notice of any relocation of
any office from which it services Dealer Notes or keeps records
concerning the Dealer Notes or of its principal executive office
and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of
any new financing statement and shall file any such financing
statements or amendments as may be necessary to continue the
perfection of the Master Trust's security interest in the Dealer
Notes and the proceeds thereof. Each of the Seller and the
Servicer will at all times maintain its principal executive
office within the United States of America.
(d) The Servicer will deliver to the Master Trust
Trustee and any Enhancement Provider not less than 90 days prior
to the expiration of the financing statements filed pursuant to
Section 2.03(b)(iii) hereof an Opinion of Counsel substantially
in the form of Exhibit H.
SECTION 13.03 Limitations on Rights of
Certificateholders.
(a) The death or incapacity of any Certificateholder
shall not operate to terminate this Agreement or the Master
Trust, nor shall such death or incapacity entitle such
Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in
any court for a partition or winding-up of the Master Trust, nor
otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote
(except as expressly provided in this Agreement) or in any manner
otherwise control the operation and management of the Master
Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor, except as required by law, shall any
Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by
virtue of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with
respect to this Agreement, unless such Certificateholder
previously shall have given to the Master Trust Trustee, and
unless the Holders of Investor Certificate evidencing more than
50% of the aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such action, suit or
proceeding that does not relate to all Series, 50% of the
aggregate unpaid principal amount of the Investor Certificate of
all Series to which such action, suit or proceeding relates)
shall have made, written request upon the Master Trust Trustee to
institute such action, suit or proceeding in its own name as
Master Trust Trustee hereunder and shall have offered to the
Master Trust Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred
therein or thereby, and the Master Trust Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any action, suit or
proceeding; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other
Certificateholder and the Master Trust Trustee, that no one or
more Certificateholders shall have any right in any manner
whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the
rights of the Certificateholders of any other of the
Certificates, or to obtain or seek to obtain priority over or
preference to any other such Certificateholder, or to enforce any
right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the
provisions of this Section 13.03, each and every
Certificateholder and the Master Trust Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 13.04 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, EXCEPT THAT THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE MASTER TRUST TRUSTEE SHALL BE DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS.
SECTION 13.05 Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed
to have been duly given if personally delivered at or mailed by
registered mail, return receipt requested, to (a) in the case of
NFSC as Seller, Navistar Financial Securities Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
President, (b) in the case of NFC as Servicer, Navistar Financial
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Vice President and Treasurer and (c) in the
case of the Master Trust Trustee, the Corporate Trust Office; or,
as to each party, at such other address as shall be designated by
such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall
be given by first class mail, postage prepaid, at the address of
such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice.
SECTION 13.06 Severability of Provisions. If any one
or more of the covenants, agreements, provisions or terms of this
Agreement shall for any reason whatsoever be held invalid, then
such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of
the Certificates or rights of the Certificateholders thereof.
SECTION 13.07 Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Section
8.02, this Agreement may not be assigned by the Servicer.
SECTION 13.08 Certificates Nonassessable and Fully
Paid. It is the intention of the parties to this Agreement that,
to the extent permitted by law, the Certificateholders shall not
be personally liable for obligations of the Master Trust, that
the interests in the Master Trust represented by the Certificates
shall be nonassessable for any losses or expenses of the Master
Trust or for any reason whatsoever, and that Certificates upon
authentication thereof by the Master Trust Trustee pursuant to
Section 6.02 and payment therefor at time of issuance are and
shall be deemed fully paid.
SECTION 13.09 Further Assurances. The Seller, the
Servicer and the 1990 Trust Trustee agree to do and perform, from
time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Master Trust
Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution prior to and after
the 1990 Trust Termination Date of any termination statements,
financing statements or continuation statements, as the case
maybe, relating to the Dealer Notes for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 13.10 No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of
the Master Trust Trustee or the Investor Certificateholders, any
right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
SECTION 13.11 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
SECTION 13.12 Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the
parties hereto, the Certificateholders and the other
Beneficiaries and their respective successors and permitted
assigns. Except as otherwise provided in this Article XIII, no
other person will have any right or obligation hereunder.
SECTION 13.13 Actions by Investor Certificateholders.
(a) Wherever in this Agreement a provision is made
that any action may be taken or a notice, demand or instruction
given by Investor Certificateholders, such action, notice or
instruction may be taken or given by any Investor
Certificateholder, unless such provision requires a specific
percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other act by a Certificateholder shall
bind such Certificateholder and every subsequent holder of such
Certificate issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done or omitted to be done by the Master Trust Trustee or the
Servicer in reliance thereon, whether or not notation of such
action is made upon such Certificate.
SECTION 13.14 No Petition. NFC and the Master Trust
Trustee, by entering into this Agreement, each Investor
Certificateholder, by accepting an Investor Certificate, each
holder of a Supplemental Certificate by accepting a Supplemental
Certificate and any Successor Servicer and each other
Beneficiary, by accepting the benefits of this Agreement, hereby
covenant and agree that, prior to the date which is one year and
one day after the payment in full of the Investor Certificates,
they will not institute against NFSC or the Master Trust any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
SECTION 13.15 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided
herein.
SECTION 13.16 Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
* * * * *
IN WITNESS WHEREOF, the Seller, the Servicer, the 1990
Trust Trustee and the Master Trust Trustee have caused this
Agreement to be duly executed by their respective officers as of
the day and year first above written.
NAVISTAR FINANCIAL SECURITIES CORPORATION
as Seller
By: _____________________________________
Its:
_____________________________________
NAVISTAR FINANCIAL CORPORATION
as Servicer
By: ____________________________________
Its: ___________________________________
CHEMICAL BANK
as 1990 Trust Trustee
By: ____________________________________
Its: ___________________________________
THE BANK OF NEW YORK
as Master Trust Trustee
By: ____________________________________
Its: ___________________________________