**Exhibit 10.73**

 

EXECUTION COPY

 

AMENDEDAND RESTATED CERTIFICATE PURCHASE AGREEMENTamongNAVISTAR FINANCIAL SECURITIES CORPORATIONas Seller,NAVISTAR FINANCIAL CORPORATION,as ServicerKITTY HAWK FUNDING CORPORATION,as a Conduit Purchaser,LIBERTY STREET FUNDING CORP.,as a Conduit Purchaser,BANK OF AMERICA, NATIONAL ASSOCIATION,as Administrative Agent for the Purchasers,BANK OF AMERICA, NATIONAL ASSOCIATION,as a Managing Agent,BANK OF AMERICA, NATIONAL ASSOCIATION,as a Committed Purchaser,THE BANK OF NOVA SCOTIA,as a Committed PurchaserandTHE BANK OF NOVA SCOTIA,as a Managing Agentdated as of December 27, 2004

 

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**TABLE OF CONTENTS**

 
| ARTICLE  I            DEFINITIONS                                                   |           |
|---------------------------------------------------------------------------------------------------------------------------------------|----------------|
|                                                                                                                                  | SECTION  1.01. | Certain  Defined Terms |   |
|                                                                                                                                  | SECTION  1.02. | Other  Definitional Provisions |   |
| ARTICLE  II           PURCHASE AND SALE                                             |           |
|                                                                                                                                  | SECTION  2.01. | [RESERVED] |   |
|                                                                                                                                  | SECTION  2.02. | [RESERVED] |   |
|                                                                                                                                  | SECTION  2.03. | Incremental  Fundings |   |
|                                                                                                                                  | SECTION  2.04. | Extension  of Purchase Expiration Date |   |
|                                                                                                                                  | SECTION  2.05. | Reduction  of Maximum Funded Amount |   |
|                                                                                                                                  | SECTION  2.06. | Calculation  of Monthly Interest |   |
| ARTICLE  III          CLOSING                                                            |           |
|                                                                                                                                  | SECTION  3.01. | [Reserved] |   |
|                                                                                                                                  | SECTION  3.02. | [Reserved] |   |
| ARTICLE  IV          CONDITIONS PRECEDENT TO  EFFECTIVENESS OF AMENDMENT AND RESTATEMENT |           |
|                                                                                                                                  | SECTION  4.01. | Performance  by the Seller and Servicer |   |
|                                                                                                                                  | SECTION  4.02. | Representations  and Warranties |   |
|                                                                                                                                  | SECTION  4.03. | Corporate  Documents |   |
|                                                                                                                                  | SECTION  4.04. | Opinions  of Counsel to NFC and the Seller |   |
|                                                                                                                                  | SECTION  4.05. | Series  2000-VFC Certificate |   |
|                                                                                                                                  | SECTION  4.06. | Financing  Statements |   |
|                                                                                                                                  | SECTION  4.07. | Ratings |   |
|                                                                                                                                  | SECTION  4.08. | Documents |   |
|                                                                                                                                  | SECTION  4.09. | No  Actions or Proceedings |   |
|                                                                                                                                  | SECTION  4.10. | Approvals  and Consents |   |
|                                                                                                                                  | SECTION  4.11. | Officer’s  Certificates

  |   |
|                                                                                                                                  | SECTION  4.12. | Payment  to KHFC |   |
|                                                                                                                                  | SECTION  4.13. | Other  Documents |   |
|                                                                                                                                  | SECTION  4.14. | Fees |   |

 

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| ARTICLE  V           REPRESENTATIONS AND  WARRANTIES OF THE SELLER                     |           |
|------------------------------------------------------------------------------------------------------------------------------------------|----------------|
|                                                                                                                                     | SECTION  5.01. | Representations  and Warranties of the Seller |   |
|                                                                                                                                     | SECTION  5.02. | Representations  and Warranties of NFC |   |
| ARTICLE  VI          REPRESENTATIONS AND  WARRANTIES WITH RESPECT TO THE CONDUIT PURCHASERS |           |
|                                                                                                                                     | SECTION  6.01. | Organization |   |
|                                                                                                                                     | SECTION  6.02. | Authority,  etc |   |
|                                                                                                                                     | SECTION  6.03. | Securities  Act |   |
|                                                                                                                                     | SECTION  6.04. | Investment  Company Act |   |
| ARTICLE  VII        COVENANTS OF THE SELLER                                                           |           |
|                                                                                                                                     | SECTION  7.01. | Access  to Information |   |
|                                                                                                                                     | SECTION  7.02. | Security  Interests; Further Assurances |   |
|                                                                                                                                     | SECTION  7.03. | Covenants |   |
|                                                                                                                                     | SECTION  7.04. | Amendments |   |
| ARTICLE  VIIA     COVENANTS OF NFC                                                                                   |           |
|                                                                                                                                     | SECTION  7A.01 | INFORMATION  FROM NFC |   |
|                                                                                                                                     | SECTION  7A.02 | ACCESS  TO INFORMATION |   |
|                                                                                                                                     | SECTION  7A.03 | Covenants |   |
|                                                                                                                                     | SECTION  7A.04 | Amendments |   |
| ARTICLE  VIII       ADDITIONAL COVENANTS                                                                   |           |
|                                                                                                                                     | SECTION  8.01. | Legal  Conditions to Effectiveness of this Agreement |   |
|                                                                                                                                     | SECTION  8.02. | Expenses |   |
|                                                                                                                                     | SECTION  8.03. | Mutual  Obligations |   |
|                                                                                                                                     | SECTION  8.04. | Restrictions  on Transfer |   |
|                                                                                                                                     | SECTION  8.05. | Consents,  etc |   |
| ARTICLE  IX         INDEMNIFICATION                                                              |           |
|                                                                                                                                     | SECTION  9.01. | Indemnification |   |
|                                                                                                                                     | SECTION  9.02. | Procedure |   |
|                                                                                                                                     | SECTION  9.03. | Defense  of Claims |   |
|                                                                                                                                     | SECTION  9.04. | Indemnity  for Taxes, Reserves and Expenses |   |

 

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|                                                                              | SECTION  9.05.  | Costs,  Expenses, Taxes, Breakage Payments and Increased Costs under this Agreement  and Program Facility |   |
|-----------------------------------------------------------------------------------|-----------------|-----------------------------------------------------------------------------------------------------------|--------|
| ARTICLE  X           THE AGENTS |            |
|                                                                              | SECTION  10.01. | Authorization  and Action                                                                                 |   |
|                                                                              | SECTION  10.02. | Agent’s  Reliance, Etc                                                                               |   |
|                                                                              | SECTION  10.03. | Agents  and Affiliates                                                                                    |   |
|                                                                              | SECTION  10.04. | Indemnification                                                                                           |   |
|                                                                              | SECTION  10.05. | Purchase  Decision                                                                                        |   |
|                                                                              | SECTION  10.06. | Successor  Administrative Agent                                                                           |   |
| ARTICLE  XI         MISCELLANEOUS         |            |
|                                                                              | SECTION  11.01. | Amendments                                                                                                |   |
|                                                                              | SECTION  11.02. | Notices                                                                                                   |   |
|                                                                              | SECTION  11.03. | No  Waiver; Remedies                                                                                      |   |
|                                                                              | SECTION  11.04. | Binding  Effect; Assignability                                                                            |   |
|                                                                              | SECTION  11.05. | Provision  of Documents and Information                                                                   |   |
|                                                                              | SECTION  11.06. | GOVERNING  LAW; JURISDICTION                                                                              |   |
|                                                                              | SECTION  11.07. | No  Proceedings; Limitation on Payments                                                                   |   |
|                                                                              | SECTION  11.08. | Execution  in Counterparts                                                                                |   |
|                                                                              | SECTION  11.09. | No  Recourse                                                                                              |   |
|                                                                              | SECTION  11.10. | Limited  Recourse                                                                                         |   |
|                                                                              | SECTION  11.11. | Survival                                                                                                  |   |
|                                                                              | SECTION  11.12. | Tax  Characterization                                                                                     |   |
|                                                                              | SECTION  11.13. | Master  Trust Rating Agency Notices                                                                       |   |

 

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| EXHIBIT  A | Form of Notice of Incremental Funding |
|------------|---------------------------------------|
| EXHIBIT B  | Form of Investment Letter             |
|       |                                  |
| SCHEDULE I | Addresses for Notice                  |

 

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THIS AMENDED AND RESTATED CERTIFICATE PURCHASEAGREEMENT (this “Agreement”) dated as of December 27, 2004, amongNavistar Financial Securities Corporation (the “Seller”), NavistarFinancial Corporation (“Servicer”), Kitty Hawk Funding Corporation, (“KHFC”),as a Conduit Purchaser, Liberty Street Funding Corp. (“Liberty Street”),as a Conduit Purchaser, the Bank of Nova Scotia (“BNS”) as a ManagingAgent and a Committed Purchaser and Bank of America, National Association, as aManaging Agent, the Administrative Agent and a Committed Purchaser.

 

The parties hereto agree as follows:

 

A.            TheSeller, the Servicer, Ranger Funding Company, LLC (f/k/a Receivables CapitalCorporation) (“RCC”) and Bank of America entered into a CertificatePurchase Agreement dated as of January 28, 2000, as amended through the datehereof (the “Existing Agreement”).

 

B.            KHFCis party to the Existing Agreement by assignment from RCC.

 

C.            TheSeller, the Servicer, KHFC, Liberty Street, BNS, Bank of America, and the otherparties hereto desire to amend and restate the Existing Agreement to make certainmodifications to the Existing Agreement.

 

D.            Inconsideration of the mutual agreements, provisions and covenants containedherein, the parties hereto agree to amend and restate the Existing Agreement toread in full as set forth herein.

 

ARTICLE IDEFINITIONS

 

SECTION 1.01.      Certain Defined Terms. Capitalized terms used herein without definition shall have the meaningsset forth in the Pooling and Servicing Agreement (as defined below) or theSeries Supplement (as defined below), as applicable.  If a term used herein is defined both in thePooling and Servicing Agreement and the Series Supplement, it shall have themeaning set forth in the Series Supplement. Additionally, the following terms shall have the following meanings:

 

“Act” means the Securities Act of 1933, asamended.

 

“Additional Amounts” means all amounts owedpursuant to Article IX hereof plus any Breakage Payments owed to thePurchasers pursuant to Section 2.06(c) of this Agreement.

 

“Administrative Agent” means Bank of America inits capacity as Administrative Agent for the Purchasers.

 

“Administrative Agent Fee Letter” means the feeletter dated as of the date hereof among the Seller, the Servicer and theAdministrative Agent setting forth certain fees payable to the AdministrativeAgent in connection with this Agreement.

 

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“Agents”means, collectively, the Managing Agents and the Administrative Agent.

 

“Alternate Rate” for any Fixed Period for anyFunding Tranche means an interest rate per annum equal to 1.15% perannumabove the Eurodollar Rate for such Fixed Period; provided, however,that in the case of

 

(i)            any Fixed Period existing on orafter the first day of which a Managing Agent shall have been notified by aConduit Purchaser or Liquidity Purchaser in its Purchaser Group or otherProgram Support Provider that the introduction of or any change in or in theinterpretation of any law or regulation makes it unlawful, or any central bankor other Governmental Authority asserts that it is unlawful, for a ConduitPurchaser or its Liquidity Purchaser or other Program Support Provider to fundany Funding Tranche (based on the Eurodollar Rate) set forth above (and suchConduit Purchaser or its Liquidity Purchaser or other Program Support Providershall not have subsequently notified its Managing Agent that such circumstancesno longer exist),

 

(ii)           any Fixed Period of one to (andincluding) 13 days,

 

(iii)          any Fixed Period relating to a FundingTranche which is less than $1,000,000, and

 

(iv)          any Fixed Period with respect to whichthe Alternate Rate, for any reason, becomes applicable on notice to theAdministrative Agent of less than three Business Days,

 

the “Alternate Rate” for each such Fixed Periodshall be an interest rate per annum equal to the Corporate Base Rate in effecton each day of such Fixed Period.  The “AlternateRate” for any day on or after the occurrence of an Early Amortization Eventshall be an interest rate equal to 2.0% perannum above theCorporate Base Rate in effect on such day.

 

“Applicable Indemnifying Party” shall have themeaning set forth in Section 9.02 hereof.

 

“Asset Purchase Agreement” means the KHFCLiquidity Asset Purchase Agreement and the Liberty Street Liquidity AssetPurchase Agreement, as the same may be amended, restated, supplemented orotherwise modified.

 

“Assignment and Acceptance” means an assignmentand acceptance agreement entered into by a Purchaser, a permitted assignee andthe Managing Agent for such Purchaser, pursuant to which such assignee maybecome a party to this Agreement.

 

“Assignment Amount” means, with respect to aCommitted Purchaser at the time of any assignment pursuant to Section 11.04(c)of this Agreement, an amount equal to the least of (a) such Committed Purchaser’spurchase price (as provided in and calculated in accordance with the terms ofthe related Asset Purchase Agreement) of the Invested Amount requested by therelated Conduit Purchaser to be assigned at such time; and (b) such CommittedPurchaser’s unused Commitment.

 

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“Assignment Amount” is defined in Section11.04(c) of this Agreement.

 

“Bank of America” means Bank of America,National Association, a national banking association.

 

“BNS” means The Bank of Nova Scotia.

 

“Breakage Payment” is defined in Section2.06(c) of this Agreement.

 

“Closing Date” means January 28, 2000.

 

“Commitment” means, with respect to eachCommitted Purchaser, as the context requires, (a) the commitment of suchCommitted Purchaser to make Incremental Fundings and to pay Assignment Amountsin accordance herewith in an amount not to exceed the amount described in thefollowing clause (b), and (b) the dollar amount set forth underneath suchCommitted Purchaser’s name under the heading of “Commitment” on the signaturepages hereto (or in the case of a Committed Purchaser which becomes a partyhereto pursuant to an assignment and assumption agreement, as set forth in suchassignment and assumption agreement), minus the dollar amount of any Commitmentor portion thereof assigned by such Committed Purchaser in accordance with theterms of this Agreement and pursuant to an assignment and assumption agreement,plus the dollar amount of any increase to such Committed Purchaser’s Commitmentconsented to by such Committed Purchaser prior to the time of determinationminus the amount of any reduction to such Commitment made in accordance withthis Agreement.

 

“Committed Purchaser” means Bank of America,BNS and each of their respective assigns (with respect to its commitment tomake Incremental Fundings) that shall become a party to this Agreement pursuantto Section 11.04 hereof.

 

“Conduit Purchaser” means KHFC, Liberty Streetand any of their respective permitted assigns that is a RIC.

 

“Conduit Purchaser Termination Date” means,with respect to a Conduit Purchaser in the KHFC Purchase Group, the date of thedelivery by such Conduit Purchaser of written notice that such ConduitPurchaser elects, in its sole discretion, to permanently cease to fund FundedAmounts and Incremental Fundings hereunder.

 

“Corporate Base Rate” means for any day, afluctuating interest rate per annum as shall be in effect from time to time,which rate shall be at all times equal to the higher of:

 

(a)           therate of interest in effect for such day as publicly announced from time to timeby the applicable Managing Agent, as its “reference rate.”  It is a rate set by the applicable ManagingAgent based upon various factors including such Managing Agent’s costs anddesired return, general economic conditions and other factors, and is used as areference point for pricing some loans, which may be priced at, above, or belowsuch announced rate; and

 

(b)           0.50%per annum above the latest Federal Funds Rate.

 

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“CP Rate” for any Fixed Period for any FundingTranche means, to the extent a Conduit Purchaser funds such Funding Tranche forsuch Fixed Period by issuing Notes, the per annum rate equivalent to the “weightedaverage cost” (as defined below) related to the issuance of Notes that areallocated, in whole or in part, by such Conduit Purchaser or its Managing Agentto fund or maintain such Funding Tranche (and which may also be allocated inpart to the funding of other Funding Tranches hereunder or of other assets ofsuch Conduit Purchaser); provided, however, that if any componentof such rate is a discount rate, in calculating the “CP Rate” for suchFunding Tranche for such Fixed Period, such Conduit Purchaser shall for suchcomponent use the rate resulting from converting such discount rate to aninterest bearing equivalent rate per annum. As used in this definition, a Conduit Purchaser’s “weighted averagecost” shall consist of (w) the actual interest rate (or discount) paid topurchasers of such Conduit Purchaser’s Notes, together with the commissions ofplacement agents and dealers in respect of such Notes, to the extent suchcommissions are allocated, in whole or in part, to such Notes by such ConduitPurchaser or its Managing Agent, (x) certain documentation and transactioncosts associated with the issuance of such Notes, (y) any incremental carryingcosts incurred with respect to Notes maturing on dates other than those onwhich corresponding funds are received by such Conduit Purchaser, and (z) otherborrowings by such Conduit Purchaser (other than under any Program SupportAgreement), including borrowings to fund small or odd dollar amounts that arenot easily accommodated in the commercial paper market.

 

“Day Count Fraction” means, as to any FundingTranche for any Fixed Period, a fraction (a) the numerator of which is thenumber of days in such Fixed Period and (b) the denominator of which is 360(or, with respect to any Funding Tranche which accrues interest by reference tothe Corporate Base Rate, the actual number of days in the related calendaryear).

 

“Defaulting Committed Purchaser” is defined in Section2.03(f).

 

“Effective Date” means the date that all of theconditions precedent set forth in Article IV of this Agreement shallhave been satisfied or waived by the Administrative Agent and each ManagingAgent.

 

“Eurodollar Rate” means, for any Fixed Period,an interest rate per annum (rounded upward to the nearest 1/1000thof 1%) determined pursuant to the following formula:

 
| Eurodollar Rate =                    | LIBOR  |   |
|--------------------------------------|--------|--------|
| 1.00 - Eurodollar Reserve Percentage |   |

 

“EurodollarReserve Percentage” means, for any Fixed Period, the maximum reservepercentage (expressed as a decimal, rounded upward to the nearest 1/1000thof 1%) in effect on the date LIBOR for such Fixed Period is determined underregulations issued from time to time by the Federal Reserve Board fordetermining the maximum reserve requirement (including any emergency,supplemental or other marginal reserve requirement) with respect to Eurocurrencyfunding (currently referred to as “Eurocurrency liabilities”) having a termcomparable to such Fixed Period.

 

“Federal Bankruptcy Code” means the bankruptcycode of the United States of America codified in Title 11 of the United StatesCode.

 

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“Federal Funds Rate” means, for any period, theper annum rate set forth in the weekly statistical release designated asH.15(519), or any successor publication, published by the Federal Reserve Board(including any such successor, “H.15(519)”) for such day opposite the caption “FederalFunds (Effective)”.  If on any relevantday such rate is not yet published in H.15(519), the rate for such day will bethe rate set forth in the daily statistical release designated as the Composite3:30 p.m. Quotations for U.S. Government Securities, or any successorpublication, published by the Federal Reserve Bank of New York (including anysuch successor, the “Composite 3:30 p.m. Quotation”) for such day under thecaption “Federal Funds Effective Rate”. If on any relevant day the appropriate rate for such previous day is notyet published in either H.15(519) or the Composite 3:30 p.m. Quotations, therate for such day will be the arithmetic mean as determined by theAdministrative Agent of the rates for the last transaction in overnight Federalfunds arranged prior to 9:00 a.m. (New York time) on that day by each of threeleading brokers of Federal funds transactions in New York City selected by theAdministrator.

 

“Federal Reserve Board” means the Board ofGovernors of the Federal Reserve System, or any entity succeeding to any of itsprincipal functions.

 

“Fee Letter” means the Amended and Restated FeeLetter dated as of the date hereof among the Seller, the Servicer, the ManagingAgents and the Administrative Agent setting forth certain fees payable inconnection with the purchase of the Series 2000-VFC Certificates by theAdministrative Agent for the benefit of the Purchasers.

 

“Fixed Period” means, unless otherwise mutuallyagreed by the Managing Agent and the Conduit Purchasers within its PurchaserGroup, (a) with respect to any Funding Tranche funded by the issuance of Notes,(i) initially the period commencing on (and including) the date of the initialpurchase or funding of such Funding Tranche and ending on (and including) thelast day of the current calendar month, and (ii) thereafter, each periodcommencing on (and including) the first day after the last day of theimmediately preceding Fixed Period for such Funding Tranche and ending on (andincluding) the last day of the current calendar month and (b) with respect toany Funding Tranche not funded by the issuance of Notes, (i) initially theperiod commencing on (and including) the date of the initial purchase orfunding of such Funding Tranche and ending on (but excluding) the nextfollowing Distribution Date and (ii) thereafter, each period commencing on (and including) the first dayafter the last day of the immediately preceding Fixed Period for such FundingTranche and ending on (and excluding) the last day of the next followingDistribution Date; provided, that

 

(i)            any Fixed Period with respect to anyFunding Tranche not funded by the issuance of Notes which would otherwise endon a day which is not a Business Day shall be extended to the next succeedingBusiness Day; provided, however, if interest in respect of suchFixed Period is computed by reference to the Eurodollar Rate, and such FixedPeriod would otherwise end on a day which is not a Business Day, and there isno subsequent Business Day in the same calendar month as such day, such FixedPeriod shall end on the next preceding Business Day;

 

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(ii)           in the case of any Fixed Period forany Funding Tranche which commences before the Series Termination Date andwould otherwise end on a date occurring after the Series Termination Date, suchFixed Period shall end on such Series Termination Date and the duration of eachFixed Period which commences on or after the Series Termination Date shall beof such duration as shall be selected by the applicable Managing Agent andcommunicated by such Managing Agent to the Administrative Agent;

 

(iii)          any Fixed Period in respect of whichinterest is computed by reference to the CP Rate may be terminated inaccordance with the terms of this Agreement at the election of a Managing Agentby notice thereof to the Administrative Agent, and upon notice thereof to theSeller by, the Administrative Agent (who shall promptly forward such notice uponreceipt thereof from a Managing Agent) any time, in which case the FundingTranche allocated to such terminated Fixed Period shall be allocated to a newFixed Period commencing on (and including) the date of such termination andending on (but excluding) the next following Distribution Date, and shallaccrue interest at the Alternate Rate.

 

“Funded Amount” means, on any Business Day, anamount equal to the result of (a) the Initial Funded Amount plus(b) the aggregate amount of all Incremental Funded Amounts for allIncremental Fundings occurring on or prior to such Business Day minus(c) the aggregate amount of principal payments made toSeries 2000-VFC Certificateholders prior to such date.

 

“Funding Rate” means, with respect to any FixedPeriod and any Funding Tranche, (a) to the extent a Conduit Purchaser (ora RIC which is an assignee of such Conduit Purchaser) is funding such FundingTranche during such Fixed Period through the issuance of Notes, its CP Rate,and (b) to the extent any Purchaser is not funding such Funding Tranchethrough the issuance of Notes, a rate per annum (expressed as a percentage andan interest yield equivalent and calculated on the basis of a 360-day year andthe actual days elapsed) equal to the Alternate Rate.

 

“Funding Tranche” means, at any time, eachportion of the Funded Amount funded by a specific Purchaser, allocated to thesame Fixed Period and accruing interest by reference to the same Funding Rateat such time.

 

“Governmental Actions” means any and allconsents, approvals, permits, orders, authorizations, waivers, exceptions,variances, exemptions or licenses of, or registrations, declarations or filingswith, any Governmental Authority required under any Governmental Rules.

 

“Governmental Authority”  means the United States of America, any stateor other political subdivision thereof and any entity exercising executive,legislative, judicial, regulatory or administrative functions of or pertainingto government and having jurisdiction over the applicable Person.

 

“Governmental Rules” means any and all laws,statutes, codes, rules, regulations, ordinances, orders, writs, decrees andinjunctions, of any Governmental Authority and any and

 

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all legallybinding conditions, standards, prohibitions, requirements and judgments of anyGovernmental Authority.

 

“Incremental Funded Amount” shall mean theamount of the increase in the Funded Amount occurring as a result of anyIncremental Funding, which amount shall equal the aggregate amount of thepurchase price paid by the Series 2000-VFC Certificateholders with respect tothat Incremental Funding pursuant to this Agreement and the Series Supplement.

 

“Incremental Funding” means an increase in theaggregate outstanding principal balance of the Series 2000-VFC Certificate inaccordance with the provisions of Section 2.03 hereof.

 

“Incremental Funding Date” means the date onwhich each Incremental Funding occurs.

 

“Indemnified Party” means any Purchaser, theLiquidity Purchasers, the Program Support Providers, the Managing Agents, the AdministrativeAgent or any of their officers, directors, employees, agents, representatives,assignees or Affiliates.

 

“Investment Deficit” is defined in Section2.03(f).

 

“Investment Letter” means a letter in the formof Exhibit B hereto.

 

“KHFC” means Kitty Hawk Funding Corporation, aDelaware corporation.

 

“KHFC Liquidity Asset Purchase Agreement” meansthe liquidity asset purchase agreement relating to this Agreement, among KHFC(or an RIC that is an assignee of KHFC pursuant to the terms of thisAgreement), the Administrative Agent and each of the Liquidity Purchaserssignatory thereto, as the same may from time to time be amended, restated,supplemented or otherwise modified.

 

“KHFC Purchaser Group” means KHFC, eachassignee of KHFC which is a RIC, Bank of America, in its capacity as aCommitted Purchaser, and the KHFC Purchasers.

 

“KHFC Purchasers” means each of the purchasersto a KHFC Liquidity Asset Purchase Agreement.

 

“Liberty Street” means Liberty Street FundingCorp., a Delaware corporation.

 

“Liberty Street Liquidity Asset Purchase Agreement”means the liquidity asset purchase agreement, dated as of the date hereof,among Liberty Street, BNS and each of the Liquidity Purchasers signatory thereto,as the same may from time to time be amended, restated, supplemented orotherwise modified.

 

“Liberty Street Purchaser Group” means LibertyStreet, each assignee of Liberty Street which is a RIC, BNS, in its capacity asa Committed Purchaser hereunder and the Liberty Street Purchasers and anypermitted assignee thereof.

 

“Liberty Street Purchasers” means each of thepurchasers party to a Liberty Street Asset Liquidity Purchase Agreement.

 

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“LIBOR” means the rate of interest per annumdetermined by the applicable Liquidity Agent to be the arithmetic mean (roundedupward to the nearest 1/1000th of 1%) of the rates of interest perannum notified to a Managing Agent by the Reference Bank as the rate of interestat which dollar deposits in the approximate amount of the portion of InvestedAmount associated with such Fixed Period would be offered to major banks in theLondon interbank market at their request at or about 11:00 a.m. (London time)on the second Business Day prior to the commencement of such Fixed Period.

 

“Liquidity Agents” means Bank of America in itscapacity as Liquidity Agent pursuant to the KHFC Liquidity Asset PurchaseAgreement and BNS in its capacity as Liquidity Agent pursuant to the LibertyStreet Liquidity Asset Purchase Agreement.

 

“Liquidity Purchaser” means a KHFC Purchaser ora Liberty Street Purchaser.

 

“Managing Agents” means Bank of America in itscapacity as a Managing Agent for the KHFC Purchaser Group and BNS, in itscapacity as a Managing Agent for the Liberty Street Purchaser Group.

 

“Material Adverse Effect” means a materialadverse effect on (i) the business, results of operations or financialcondition or the material properties or assets of NFSC or NFC, (ii) theperformance of their obligations hereunder or under the Series Documents or(iii) the interests of the Purchasers hereunder.

 

“Maximum Funded Amount” means $400,000,000, assuch amount may be decreased from time to time in accordance with Section2.05 hereof.

 

“Monthly Interest” means, with respect to anyDistribution Date, the sum of:

 

(A)                              the sum of (i) for each Conduit Purchaser thesummation of the amount of interest accrued during the related Due Period oneach Funding Tranche funded by such Conduit Purchaser at such Conduit Purchaser’sCP Rate, determined by multiplying (a) the applicable Tranche Rate times(b) the Weighted Average Funded Amount for such Funding Tranche times(c) the applicable Day Count Fraction and (ii) any Monthly Interest calculatedin accordance with clause (A)(i) above due but not paid with respect to theprior Due Period, plus interest on such unpaid amount calculated as the productof (x) the weighted average Tranche Rate for all Funding Tranches funded at theCP Rate by such Conduit Purchaser during the most recent Due Period, times(y) the amount of such unpaid Monthly Interest, times (z) the quotient of thenumber of days in the related Distribution Period divided by 360,

 

plus

 

(B)                                the sum of (i) the summation of the amount ofinterest accrued during the related Distribution Period on each Funding Tranchenot funded at the CP Rate, determined by multiplying (a) the applicable TrancheRate times (b) the Weighted Average Funded Amount for such FundingTranche times (c) the applicable Day Count Fraction and (ii) any MonthlyInterest calculated in accordance with clause

 

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(B)(i) above due but not paid with respect to the prior DistributionPeriod, plus interest on such unpaid amount calculated as the product of (x)the weighted average Tranche Rate for all Funding Tranches not funded at the CPRate during the most recent Distribution Period, times (y) the amount ofsuch unpaid Monthly Interest, times (z) for Funding Tranches that do not accrueinterest by reference to the Corporate Base Rate, the quotient of the number ofdays in the related Distribution Period divided by 360.

 

plus

 

(C)                                on any Distribution Date on which the FundedAmount of the Series 2000-VFC Certificates is reduced to zero and on the SeriesTermination Date, any amounts which accrue in clause (A) above from (andexcluding) the last day of the related Due Period through (and including) suchDistribution Date.

 

“NFC” means Navistar Financial Corporation, aDelaware corporation, and its successors and permitted assigns.

 

“NFC Losses” has the meaning specified in Section9.01(b) hereof.

 

“NFSC” means Navistar Financial SecuritiesCorporation, a Delaware corporation, and its successors and permitted assigns.

 

“Non-Defaulting Committed Purchaser” is definedin Section 2.03(f).

 

“Non-Use Fee” is defined in the Fee Letter.

 

“Notes” means short-term promissory notesissued or to be issued by a Conduit Purchaser to fund its investments inaccounts receivable or other financial assets.

 

“Notice of Incremental Funding” means a writtennotice of an Incremental Funding in the form of Exhibit A hereto.

 

“Official Body” means any U.S. government orpolitical subdivision or any U.S. agency, authority, bureau, central bank,commission, department or instrumentality of any such government or politicalsubdivision, or any U.S. court, tribunal, grand jury or arbitrator, or anyaccounting board or authority (whether or not a part of government) which isresponsible for the establishment or interpretation of U.S. accountingprinciples.

 

“Pooling and Servicing Agreement” means thePooling and Servicing Agreement dated as of June 8, 1995 among the Seller, theServicer, and The Bank of New York, as Master Trust Trustee, as the same hasbeen and may be amended, modified or supplemented.

 

“Program Rate” means the “Program Rate” asdefined in the Fee Letter.

 

“Program Support Agreement” means and includes,with respect to a Conduit Purchaser, the Asset Purchase Agreement and any otheragreement entered into by any Program Support Provider providing for theissuance of one or more letters of credit for the account of such

 

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Conduit Purchaser, theissuance of one or more surety bonds for which a Conduit Purchaser is obligatedto reimburse the applicable Program Support Provider for any drawingsthereunder, the sale by a Conduit Purchaser to any Program Support Provider ofany interest in the Series 2000-VFC Certificates (or portions thereof) and/orthe making of loans and/or other extensions of credit to a Conduit Purchaser inconnection with such Conduit Purchaser’s securitization program, together withany letter of credit, surety bond or other instrument issued thereunder (butexcluding any discretionary advance facility provided by the AdministrativeAgent or a Managing Agent).

 

“Program Support Provider” means and includes,with respect to a Conduit Purchaser, any Liquidity Purchaser and any other oradditional Person (other than any customer of a Conduit Purchaser) now orhereafter extending credit or having a commitment to extend credit to or forthe account of, or to make purchases from, a Conduit Purchaser or issuing aletter of credit, surety bond or other instrument to support any obligationsarising under or in connection with a Conduit Purchaser’s securitizationprogram.

 

“Purchase Agreement” means the PurchaseAgreement dated as of June 8, 1995 between NFC and NFSC, as may be amended orotherwise modified from time to time.

 

“Purchase Expiration Date” means the earlier of(i) the date which is December 26, 2005 and (ii) the date onwhich the Early Amortization Period commences, as such date may from time totime be modified in accordance with Section 2.04 hereof.

 

“Purchaser Group” means the Liberty StreetPurchaser Group and the KHFC Purchaser Group.

 

“Purchaser Percentage” of any CommittedPurchaser means (a) with respect to Bank of America and BNS, the percentage setforth on the signature page to this Agreement as such Committed Purchaser’sPurchaser Percentage, or such percentage as reduced by any Assignment andAcceptance entered into with an assignee, or (b) with respect to a CommittedPurchaser that has entered into an Assignment and Acceptance, the percentageset forth therein as such Purchaser’s Purchaser Percentage, or such percentageas reduced by any Assignment and Acceptance entered into between such CommittedPurchaser and an assignee.

 

“Purchaser” means a Conduit Purchaser or aCommitted Purchaser.

 

“Reference Bank” means Bank of America withrespect to the KHFC Purchaser Group and BNS, with respect to the Liberty StreetPurchaser Group.

 

“RIC” means a special purpose company, otherthan a Conduit Purchaser, which (i) is administered by a Managing Agent or anAffiliate thereof and (ii) has activities generally similar to such ConduitPurchaser.

 

“Seller Losses” has the meaning specified in Section9.01(a) hereof.

 

“Series 2000-VFC Certificate” means the Series2000-VFC Floating Rate Dealer Note Asset Backed Certificate in the maximumaggregate principal amount of $400,000,000 issued by

 

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the Master Trustpursuant to the Pooling and Servicing Agreement and the Series Supplement,evidencing an undivided senior beneficial interest in certain assets of theMaster Trust.

 

“Series Documents” means the Pooling andServicing Agreement, the Series Supplement, the Master Revolving CreditAgreement, the Purchase Agreement and this Agreement.

 

“Series Supplement” means the Series Supplementdated as of January 28, 2000 among the Seller, the Servicer, and The Bank ofNew York, as Master Trust Trustee, supplementing the Pooling and ServicingAgreement and relating to the Series 2000-VFC Certificates, as the same may beamended, modified or supplemented.

 

“Servicer” means Navistar FinancialCorporation, or any Successor Servicer appointed in accordance with the termsof the Pooling and Servicing Agreement and Series Supplement.

 

“Third Party Claim” has the meaning specifiedin Section 9.02 hereof.

 

“Tranche Rate” means for any Fixed Period, withrespect to any Funding Tranche, a per annum rate equal to the sum of (i) theapplicable Funding Rate of the applicable Purchaser for such Fixed Period plus(ii) if such Funding Tranche is funded at the CP Rate, the weighted average ofthe applicable Program Rates applicable to such Fixed Period.

 

“Weighted Average Funded Amount” means, withrespect to any Funding Tranche for any Fixed Period, the quotient of (i) thesummation of the portion of the Funded Amount allocated to such Funding Tranchedetermined as of each day in such Fixed Period, divided by (ii) the number ofdays in such Fixed Period.

 

SECTION 1.02.      Other Definitional Provisions.  (a) All terms defined in this Agreement shall have the defined meaningswhen used in any certificate or other document made or delivered pursuanthereto unless otherwise defined therein.

 

(b)           As used herein and in any certificateor other document made or delivered pursuant hereto or thereto, accountingterms not defined in Section 1.01, and accounting terms partiallydefined in Section 1.01 to the extent not defined, shall have therespective meanings given to them under generally accepted accountingprinciples.  To the extent that thedefinitions of accounting terms herein are inconsistent with the meanings ofsuch terms under generally accepted accounting principles, the definitionscontained herein shall control.

 

(c)           The words “hereof,” “herein” and “hereunder”and words of similar import when used in this Agreement shall refer to thisAgreement as a whole and not to any particular provision of thisAgreement; and Section, subsection, Schedule and Exhibit references containedin this Agreement are references to Sections, subsections, the Schedulesand Exhibits in or to this Agreement unless otherwise specified.

 

ARTICLEIIPURCHASE AND SALE

 

SECTION 2.01.      [RESERVED]

 

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SECTION 2.02.      [RESERVED]

 

SECTION 2.03.      Incremental Fundings. (a)  Subject to the terms andconditions of this Agreement and the Series Supplement, from time to time priorto the Purchase Expiration Date upon receipt by the Administrative Agent (witha copy to each Managing Agent) of a Notice of Incremental Funding, (i) eachManaging Agent, on behalf of the Conduit Purchaser in its Purchaser Group, andin the sole and absolute discretion of each such Conduit Purchaser, may makeIncremental Fundings and (ii) if a Conduit Purchaser elects not to make anIncremental Funding, each Committed Purchaser in such Conduit Purchaser’sPurchaser Group and its permitted assigns severally agree to make theirrespective Purchaser Percentages of such Incremental Funding; provided, that noCommitted Purchaser shall be required to make a portion of any IncrementalFunding if, after giving effect thereto, (A) its Funded Amount hereunder wouldexceed its Commitment or (B) its Funded Amount hereunder plus the aggregate “UnrecoveredPurchase Price” (as defined in the Asset Purchase Agreement) of all “PercentageInterests” or the definitional equivalent thereof (as defined in its AssetPurchase Agreement) purchased by such Committed Purchaser as a LiquidityPurchaser under the Asset Purchase Agreement would exceed its Commitment.

 

(b)           Each Incremental Funding hereundershall be subject to the further conditions precedent that:

 

(i)            The Administrative Agent (with acopy to each Managing Agent) will have received copies of all settlementstatements and all reports required to be delivered by the Servicer to theMaster Trust Trustee pursuant to Section 3.04 of the Pooling and ServicingAgreement and Section 5.02 of the Series Supplement;

 

(ii)           Each of the representations andwarranties of the Seller and the Servicer made in the Series Documents shall betrue and correct in all material respects as of the applicable IncrementalFunding Date (except to the extent they expressly relate to an earlier or latertime);

 

(iii)          The Seller and the Servicer shall bein compliance in all material respects with all of their respective covenantscontained in the Series Documents;

 

(iv)          No Early Amortization Event shall haveoccurred and be continuing;

 

(v)           The Available Subordinated Amountshall be at least equal to the Required Subordinated Amount (calculated on apro forma basis after giving effect to such Incremental Funding);

 

(vi)          The Master Trust Seller’s Interestshall be at least equal to the Minimum Master Trust Seller’s Interest (aftergiving effect to such Incremental Funding);

 

(vii)         At least three Business Days prior tothe Incremental Funding Date, the Administrative Agent (with a copy to eachManaging Agent) shall have received a completed Notice of Incremental Funding;

 

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(viii)        The amount on deposit in the SpreadAccount shall be at least equal to Projected Spread for the related TransferDate;

 

(ix)           The available commitments of theLiquidity Purchasers under their Asset Purchase Agreement and the credit and/orliquidity coverage committed under the program-wide credit and/or liquidityfacilities for the commercial paper program of each Conduit Purchaser shall bein the amounts required to maintain the then-current ratings of such ConduitPurchaser’s Notes; and

 

(x)            There shall have been deposited intothe Incremental Funding Reserve Account an amount at least equal to theIncremental Funding Reserve Deposit Amount for such Distribution Date.

 

(c)           Each Incremental Funding shall berequested in a minimum principal amount of $5,000,000 and integral multiples of$1,000,000 in excess thereof; provided, that an Incremental Funding maybe requested in the entire remaining Maximum Funded Amount (even if such amountis less than $5,000,000).

 

(d)           The purchase price of eachIncremental Funding shall be equal to 100% of the allocation of the relatedIncremental Funded Amount, and shall be paid not later than 1:00 p.m. NewYork City time on the Incremental Funding Date by wire transfer of immediatelyavailable funds to the Seller’s account no. 323-2-37053, titled “NFC ProceedsDeposit Account,” ABA# 021-000-021, maintained at JPMorgan Chase Bank, N.A. (orsuch other account as may from time to time be specified by the Seller in anotice to the Administrative Agent(with a copy to each Managing Agent)).

 

(e)           Subject to the other provisions ofthis Agreement, Incremental Funded Amounts shall be allocated between thePurchaser Groups on a pro rata basis.

 

(f)            DefaultingCommitted Purchaser.  If, by2:00 p.m. (New York City time), one or more Committed Purchasers (each, a “Defaulting Committed Purchaser”, and eachCommitted Purchaser other than any Defaulting Committed Purchaser beingreferred to as a “Non-Defaulting CommittedPurchaser”) fails to deposit its pro rata share of any IncrementalFunded Amount into the Seller’s Account pursuant to Section2.03(d)(the aggregate amount not so made availableas the Incremental Funding Date being herein called in either case the “Investment Deficit”), then the relatedManaging Agent for each Non-Defaulting Committed Purchaser shall, by no laterthan 2:30 p.m. (New York City time) on the applicable Incremental Funding Date,instruct each Non-Defaulting Committed Purchaser in its Purchaser Group to pay,by no later than 3:00 p.m. (New York City time), in immediately availablefunds, to the Seller’s account, an amount equal to the lesser of (i) such Non-DefaultingCommitted Purchaser’s proportionate share (based upon the relative PurchaserPercentage of the Non-Defaulting Committed Purchasers) of the InvestmentDeficit and (ii) its unused Commitment. A Defaulting Committed Purchaser shall forthwith, upon demand, pay toits Managing Agent for the ratable benefit of the Non-Defaulting CommittedPurchasers all amounts paid by each such Non-Defaulting Committed Purchaser onbehalf of such Defaulting Committed Purchaser, together with interest thereon,for each day from the date a payment was made by a Non-Defaulting CommittedPurchaser until the date such Non-Defaulting Committed Purchaser

 

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has been paid suchamounts in full, at a rate perannum equal to the sum of the Alternate Rate,plus 2.00% perannum.

 

SECTION 2.04.      Extension of Purchase Expiration Date.  The parties to this Agreement may mutuallyagree in writing to the extension of the Purchase Expiration Date to a date nolater than 364 days following the date of such extension; provided, thatno agreement to any such extension shall be effective unless, the availablecommitments of the Liquidity Purchasers under each Asset Purchase Agreement andthe credit and/or liquidity coverage committed under the program-wide creditand/or liquidity facilities for the commercial paper program of each ConduitPurchaser will continue to be in effect after such extension in the aggregateamounts, and for the period of the time, necessary to maintain the then-currentratings of each such Conduit Purchaser’s Notes.

 

SECTION 2.05.      Reduction of Maximum Funded Amount.  The Seller may reduce in whole or in part theMaximum Funded Amount (but not below the Invested Amount) by giving theAdministrative Agent (with a copy to each Managing Agent) written noticethereof at least five Business Days before such reduction is to take place; provided,however, that any partial reduction shall be in an aggregate amount of$10,000,000, or any integral multiples of $5,000,000 in excess thereof.  Any such reduction in the Maximum FundedAmount shall be permanent and shall be allocated between the Purchaser Groupson a pro rata basis.  The applicablePurchasers shall be paid any accrued and unpaid Non-Use Fees on the date of suchreduction with respect to the reduction amount.

 

SECTION 2.06.      Calculation of Monthly Interest.  (a)  Onor before the second Business Day after the end of each Due Period, eachManaging Agent shall calculate for the related Distribution Date, the MonthlyInterest payable on such Distribution Date with respect to each Funding Trancherelated to its Purchaser Group and provide such calculation to theAdministrative Agent who shall provide such calculation to the Servicer inwriting.  If any Funding Tranche beginsto accrue interest at a Funding Rate other than a CP Rate after the date theAdministrative Agent provides the Monthly Interest calculation for anyDistribution Date, the applicable Managing Agent shall promptly provide theAdministrative Agent a calculation of the interest that will accrue on suchFunding Tranche and be included in the definition of “Monthly Interest” forsuch Distribution Date.  TheAdministrative Agent shall promptly provide such calculation to the Servicerafter receipt thereof.  The partiesacknowledge that the interest calculation set forth in clause (C) of thedefinition of “Monthly Interest” shall be an estimate.  If the estimated accruals exceed the actualaccruals, the applicable Managing Agent shall reimburse the Seller for suchexcess.  If the actual accruals exceedthe estimated accruals, the Seller shall remit such monies to theAdministrative Agent for the account of the applicable Purchaser Group.

 

(b)           All amounts payable with respect tothe Series 2000-VFC Certificate hereunder and under the Series Supplement(other than in connection with amounts owing under the Administrative Agent FeeLetter) shall be paid to the respective accounts designated by the ManagingAgents in the Fee Letter.  Amountspayable to the Administrative Agent under the Administrative Agent Fee Lettershall be paid to the account specified therein.

 

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(c)           If (i) any distribution of principalis made with respect to any Funding Tranche with a Fixed Period and a fixedinterest rate other than on a Distribution Date during an Early AmortizationPeriod or Amortization Period or the last day of a Fixed Period with respect tosuch Funding Tranche, (ii) the Seller, or the Servicer acting on behalf of theSeller, shall not have provided the Administrative Agent with the number ofdays notice specified in the Series Supplement for such distribution ofprincipal and (iii) the interest paid by a Purchaser to providers of funds toit to fund that Funding Tranche exceeds returns earned by such Purchaser fromthe first day through the last day of that Fixed Period factoring in actualreturns earned during the Fixed Period and assuming redeployment of such fundsin highly rated short-term money market instruments from the date of principaldistribution through the end of the Fixed Period, then, upon written notice(including a detailed calculation of such Breakage Payment) from theAdministrative Agent to the Servicer, such Purchaser shall be entitled toreceive additional amounts in the amount of such excess (each, a “BreakagePayment”) on the date of such distribution, so long as such written noticeis received not later than noon, New York City time, on the first Business Dayimmediately preceding such distribution.

 

ARTICLEIIICLOSING

 

SECTION 3.01.      [Reserved].

 

SECTION 3.02.      [Reserved]

 

ARTICLEIVCONDITIONS PRECEDENT TOEFFECTIVENESS OF AMENDMENT AND RESTATEMENT

 

The effectiveness of this Agreement is subject to thesatisfaction of the following conditions (any or all of which may be waived bythe Agents in their sole discretion):

 

SECTION 4.01.      Performance by the Seller and Servicer.  All the terms, covenants, agreements andconditions of the Series Documents to be complied with and performed by theSeller and the Servicer on or before the date hereof shall have been compliedwith and performed in all material respects.

 

SECTION 4.02.      Representations and Warranties.  Each of the representations and warranties ofthe Seller and the Servicer made in the Series Documents shall be true andcorrect in all material respects as of the date hereof (except to the extentthey expressly relate to an earlier or later time).

 

SECTION 4.03.      Corporate Documents. The Managing Agents shall have received copies of (a) the (i) Certificateof Incorporation, good standing certificate and By-Laws of NFC, (ii) Board ofDirectors resolutions of NFC with respect to the Series Documents, and(iii) incumbency certificate of NFC, each certified by appropriatecorporate authorities and (b) the (i) Certificate of Incorporation, goodstanding certificate and By-Laws of the Seller,

 

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(ii) Board ofDirectors resolutions of the Seller with respect to the Series Documents, and(iii) incumbency certificate of the Seller, each certified by appropriatecorporate authorities.

 

SECTION 4.04.      Opinions of Counsel to NFC and the Seller.  Counsel to NFC and the Seller shall havedelivered to each Managing Agent opinions, dated as of the date hereof, in formand substance similar to the opinions of counsel delivered to theAdministrative Agent on or about the Closing Date.

 

SECTION 4.05.      Series 2000-VFC Certificate.  The existing Series 2000-VFC shall have beenreturned for cancellation by the Administrative Agent and a new Series 2000-VFCCertificate shall have been delivered to the Administrative Agent, on behalf ofthe Purchasers hereunder.

 

SECTION 4.06.      Financing Statements. Each Managing Agent shall have received evidence satisfactory to it ofthe completion of all recordings, registrations, and filings as may benecessary or, in the opinion of any such Managing Agent, desirable to perfector evidence the transfer by each of NFC to the Seller and by the Seller to theMaster Trust of their respective ownership interests in the Dealer Notes andthe proceeds thereof and the security interest granted pursuant to Sections2.01 and 2.02 of the Pooling and Servicing Agreement, including:

 

(a)           Acknowledgment copies of all UCCfinancing statements and assignments that have been filed in the offices of theSecretary of State of the applicable states and in the appropriate office oroffices of such other locations as may be specified in the opinions of counseldelivered pursuant to Section 4.04 hereof; and

 

(b)           Certified copies of requests forinformation (Form UCC-11) (or a similar search report certified by partiesacceptable to the Administrative Agent and its counsel) dated a date reasonablynear the date hereof and listing all effective financing statements which nameNFC, the Seller, as seller, assignor or debtor and which have been filed sincethe Closing Date in all jurisdictions in which the filings were or will bemade, together with copies of such financing statements.

 

SECTION 4.07.      Ratings.  EachConduit Purchaser’s Notes shall continue to be rated at least A-1 by Standard& Poor’s and P-1 by Moody’s.

 

SECTION 4.08.      Documents.  TheLiberty Street Managing Agent shall have received copies of each executedcounterpart of each of the Series Documents and each and every document orcertification delivered by any party in connection with any of such agreements,and each such document shall be in full force and effect.  The Managing Agents shall have received dulyexecuted counterparts of all agreements, documents and other deliveriesexecuted and delivered in connection with this Agreement.

 

SECTION 4.09.      No Actions or Proceedings.  No action, suit, proceeding or investigationby or before any Governmental Authority shall have been instituted to restrainor prohibit the consummation of, or to invalidate, the transactionscontemplated by the Series Documents and the documents related thereto in anymaterial respect.

 

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SECTION 4.10.      Approvals and Consents. All Governmental Actions of all Governmental Authorities required withrespect to the transactions contemplated by the Series Documents and theother documents related thereto shall have been obtained or made.

 

SECTION 4.11.      Officer’s Certificates. The Managing Agents shall have received Officer’s Certificates from NFCand the Seller in form and substance reasonably satisfactory to the ManagingAgents and their counsel, dated as of the date hereof, certifying as to thesatisfaction of the conditions set forth in Sections 4.01 and 4.02hereof with respect to NFC and the Seller, respectively.

 

SECTION 4.12.      Payment to KHFC. BNS shall have paid to account #00362941, ABA #021001033, titled DBCO asDepositary for KHFC, reference “Navistar” at Deutsche Bank, and KHFC shall havereceived, the sum of $100,000,000 in connection with the reduction of KHFC’sFunded Amount on the date hereof.  AllMonthly Interest and fees accrued up to but excluding the Effective Date, butnot heretofore paid, shall be due and payable to the KHFC Purchaser Group onthe January 2005 Distribution Date.

 

SECTION 4.13.      Other Documents. The Seller shall have furnished to the Administrative Agent and ManagingAgents such other information, certificates and documents as the AdministrativeAgent and the Managing Agents may reasonably request.

 

SECTION 4.14.      Fees.  Each feespecified in the Fee Letter as being due on the date hereof shall have beenpaid and each fee specified in the Administrative Agent Fee Letter as being dueon the date hereof shall have been paid.

 

ARTICLE VREPRESENTATIONS AND WARRANTIES OF THE SELLER

 

SECTION 5.01.      Representations and Warranties of the Seller.  The Seller hereby makes the followingrepresentations and warranties to the Purchasers, the Managing Agents and theAdministrative Agent, as of the date hereof and as of each Incremental FundingDate, and the Purchasers, the Managing Agents and the Administrative Agentshall be deemed to have relied on such representations and warranties inpurchasing the Series 2000-VFC Certificate on the Closing Date, entering intothe Agreement and in making (or committing to make) each Incremental Funding oneach Incremental Funding Date.

 

(a)           The Seller repeats and reaffirms tothe Purchasers and the Administrative Agent the representations and warrantiesof the Seller set forth in Sections 2.04 and 2.05 of the Pooling and ServicingAgreement and represents and warrants that such representations and warrantiesare true and correct.

 

(b)           Each of the Series Documents has beenduly authorized, executed and delivered by the Seller, and is the valid andlegally binding obligation of the Seller, enforceable against the Seller inaccordance with its terms, except that the enforcement thereof may be subjectto (i) bankruptcy, insolvency, reorganization, moratorium or other similar lawsnow or hereafter in effect relating to creditors’ rights generally and (ii)general principles of equity and the discretion of the court before which anyproceeding therefor may be brought.

 

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(c)           The Series 2000-VFC Certificate hasbeen duly and validly authorized, and, when executed and authenticated inaccordance with the terms of the Pooling and Servicing Agreement and the SeriesSupplement, and delivered to and paid for in accordance with this Agreement,will be duly and validly issued and outstanding and will be entitled to thebenefits of the Pooling and Servicing Agreement and the Series Supplement,except that the enforcement thereof may be subject to (i) bankruptcy,insolvency, reorganization, moratorium or other similar laws now or hereafterin effect relating to creditors’ rights generally and (ii) general principlesof equity and the discretion of the court before which any proceeding thereformay be brought.

 

(d)           There is no pending or, to the Seller’sknowledge, threatened action, suit or proceeding by or against the Sellerbefore any Governmental Authority or any arbitrator (i) asserting theinvalidity of this Agreement, any other Series Document or the Series 2000-VFC,(ii) seeking to prevent the issuance of the Series 2000-VFC or the consummationof any of the transactions contemplated by this Agreement or any other SeriesDocument, (iii) that might materially and adversely affect the performance bySeller of its obligations under, or the validity or enforceability of, thisAgreement, any other Series Document or the Series 2000-VFC or (iv) that ifdetermined adversely as to Seller would have a Material Adverse Effect.

 

(e)           The Seller (i) is not in violation ofits Certificate of Incorporation or By-Laws and (ii) is not in breach orviolation of any of the terms or provisions of, or with the giving of notice orlapse of time, or both, would be in default under, any contract, indenture,mortgage, deed of trust, loan agreement, note, lease, partnership agreement, orother agreement or instrument to which the Seller is a party or by which it maybe bound or to which any of its properties or assets may be subject, except forsuch violations or defaults that would not have a Material Adverse Effect.

 

(f)            Any taxes, fees and other charges ofGovernmental Authorities applicable to the Seller in connection with theexecution, delivery and performance by the Seller of the Series Documents orotherwise applicable to the Seller in connection with the Master Trust havebeen paid or will be paid by the Seller prior to the date hereof or IncrementalFunding Date, as applicable, to the extent then due, except for any suchfailures to pay which, individually and in the aggregate, would not have aMaterial Adverse Effect.

 

(g)           The Master Trust has been dulycreated and is validly existing under the laws of the State of Illinois.  The Seller has authorized the Master Trust toissue and sell the Series 2000-VFC Certificate.

 

(h)           On the date hereof and on eachIncremental Funding Date, the Seller is not insolvent or the subject of anyvoluntary or involuntary bankruptcy proceeding.

 

(i)            No proceeds of a purchase hereunderwill be used by the Seller (i) for a purpose that violates or would beinconsistent with Regulations T, U or X promulgated by the Board of Governorsof the Federal Reserve System from time to time or (ii) to acquire any securityin any transaction in violation of Section 13 or 14 of the Securities ExchangeAct of 1934, as amended.

 

(j)            Assuming the accuracy of therepresentations and warranties of the Purchaser in Article VI of thisAgreement, the sale of the Series 2000-VFC Certificate pursuant to the terms

 

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of this Agreement,the Pooling and Servicing Agreement and the Series Supplement will not requireregistration of the Series 2000-VFC Certificate under the Act.

 

(k)           Neither the Master Trust nor theSeller is an “investment company” or is controlled by an “investment company”within the meaning of the Investment Company Act of 1940, as amended.

 

(l)            No written information furnished orto be furnished by the Seller or any of its Affiliates, agents orrepresentatives to the Purchasers, the Managing Agents or the AdministrativeAgent for purposes of or in connection with this Agreement, including, withoutlimitation, any reports delivered pursuant to Section 7A.01 and anyinformation relating to the Dealer Notes and NFC’s dealer financing business,is or shall be inaccurate in any material respect, or contains or shall containany material misstatement of fact, or omits or shall omit to state a materialfact or any fact necessary to make the statements contained therein notmisleading, in each case as of the date such information was or shall bestated or certified and as of the date such information was delivered by theSeller or any of its Affiliates, agents or representatives to the Purchasers,the Managing Agents or the Administrative Agent.

 

(m)          On the date hereof and on eachIncremental Funding Date, the Subordinated Percentage shall equal or exceed15.5%.

 

SECTION 5.02.      Representations and Warranties of NFC.  NFC hereby makes the followingrepresentations and warranties to the Purchasers, the Managing Agents and theAdministrative Agent, as of the Closing Date, the date hereof and as of eachIncremental Funding Date, and the Purchasers and the Administrative Agent shallbe deemed to have relied on such representations and warranties in purchasingthe Series 2000-VFC Certificate on the Closing Date, in entering into thisAgreement on the date hereof and in making (or committing to make) eachIncremental Funding on each Incremental Funding Date.

 

(a)           NFC repeats and reaffirms to thePurchasers, the Managing Agents and the Administrative Agent therepresentations, warranties and covenants of the Servicer set forth in Section3.03 of the Pooling and Servicing Agreement and the representations andwarranties of NFC set forth in Section 3.02 of the Purchase Agreement andrepresents and warrants that all such representations and warranties are trueand correct.

 

(b)           No Governmental Action which has notbeen obtained is required by or with respect to NFC in connection with any ofthe Series Documents, except any such failure which would not have a MaterialAdverse Effect.

 

(c)           Each of the Series Documents has beenduly authorized, executed and delivered by NFC, and is the valid and legallybinding obligation of NFC, enforceable against NFC in accordance with itsterms, except that the enforcement thereof may be subject to (i) bankruptcy,insolvency, reorganization, moratorium or other similar laws now or hereafterin effect relating to creditors’ rights generally and (ii) general principlesof equity and the discretion of the court before which any proceeding thereformay be brought.

 

(d)           The Series 2000-VFC Certificate hasbeen duly and validly authorized, and, when executed and authenticated inaccordance with the terms of the Pooling and Servicing Agreement

 

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and the SeriesSupplement, and delivered to and paid for in accordance with this Agreement,will be duly and validly issued and outstanding and will be entitled to thebenefits of the Pooling and Servicing Agreement and the Series Supplement,except that the enforcement thereof may be subject to (i) bankruptcy,insolvency, reorganization, moratorium or other similar laws now or hereafterin effect relating to creditors’ rights generally and (ii) general principlesof equity and the discretion of the court before which any proceeding thereformay be brought.

 

(e)           There is no pending or, to NFC’sknowledge, threatened action, suit or proceeding by or against NFC or theSeller before any Governmental Authority or any arbitrator (i) asserting theinvalidity of this Agreement, any other Series Document or the Series 2000-VFC,(ii) seeking to prevent the issuance of the Series 2000-VFC or the consummationof any of the transactions contemplated by this Agreement or any other SeriesDocument, (iii) that might materially and adversely affect the performance byeither of NFC or the Seller of its obligations under, or the validity orenforceability of, this Agreement, any other Series Document or (iv) that ifdetermined adversely as to NFC or the Seller would have a Material AdverseEffect.

 

(f)            NFC (i) is not in violation of itsCertificate of Incorporation or By-Laws and (ii) is not in breach or violationof any of the terms or provisions of, or with the giving of notice or lapse oftime, or both, would be in default under, any contract, indenture, mortgage,deed of trust, loan agreement, note, lease, partnership agreement, or otheragreement or instrument to which NFC is a party or by which it may be bound orto which any of its properties or assets may be subject, except for suchviolations or defaults that would not have a Material Adverse Effect.

 

(g)           Any taxes, fees and other charges ofGovernmental Authorities applicable to NFC in connection with the execution,delivery and performance by NFC of the Series Documents or otherwise applicableto NFC in connection with the Master Trust have been paid or will be paid byNFC at or prior to the Closing Date, the date hereof or each IncrementalFunding Date, as applicable, to the extent then due, except for any suchfailures to pay which, individually and in the aggregate, would not have aMaterial Adverse Effect.

 

(h)           The Master Trust has been dulycreated and is validly existing under the laws of the State of Illinois.

 

(i)            On the date hereof and on eachIncremental Funding Date, NFC is not insolvent or the subject of any insolvencyproceeding.

 

(j)            No written information furnished orto be furnished by NFC or its Affiliates, agents or representatives to thePurchasers, the Managing Agents or the Administrative Agent for purposes of orin connection with this Agreement, including, without limitation, any reportsdelivered pursuant to Section 7A.01 and any information relating to theDealer Notes and NFC’s dealer financing business, is or shall be inaccurate inany material respect, or contains or shall contain any material misstatement offact, or omits or shall omit to state a material fact or any fact necessary tomake the statements contained therein not misleading, in each case as of thedate such information was or shall be stated or certified, and such informationheretofore furnished remains true and correct in all material respects as ofthe date such information was delivered by NFC or any of its Affiliates, agentsor representatives to the Purchasers, the Managing Agents or the AdministrativeAgent.

 

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ARTICLE VIREPRESENTATIONS AND WARRANTIESWITH RESPECT TO THE CONDUIT PURCHASERS

 

Each Managing Agent, onbehalf of the Purchasers in its Purchaser Group, hereby makes the followingrepresentations and warranties to the Seller and NFC on which the Seller andNFC shall rely in entering into this Agreement.

 

SECTION6.01.      Organization.  The Conduit Purchaser has been duly organizedand is validly existing and in good standing as a corporation, or limitedliability company, as the case may be, under the laws of the State governingits incorporation or formation, as the case may be, with power and authority toown its properties and to transact the business in which it is now engaged andthe Conduit Purchaser is duly qualified to do business and is in good standing(or is exempt from such requirements) in each State of the United States wherethe nature of its business requires it to be so qualified and the failure to beso qualified and in good standing would have a material adverse effect on theinterests of the Seller.

 

SECTION6.02.      Authority, etc.  The Conduit Purchaser has all requisite powerand authority to enter into and perform its obligations under thisAgreement and to consummate the transactions contemplated hereby andthereby.  The execution and delivery bythe Conduit Purchaser of this Agreement and the consummation by theConduit Purchaser of the transactions contemplated hereby have been duly andvalidly authorized by all necessary corporate action on the part of the ConduitPurchaser.  This Agreement has been dulyand validly executed and delivered by the Conduit Purchaser and constitutes alegal, valid and binding obligation of the Conduit Purchaser, enforceableagainst the Conduit Purchaser in accordance with its terms, subject as toenforcement to bankruptcy, reorganization, insolvency, moratorium and othersimilar laws of general applicability relating to or affecting creditors’rights and to general principles of equity. Neither the execution and delivery by the Conduit Purchaser of this Agreement northe consummation by the Conduit Purchaser of any of the transactionscontemplated hereby, nor the fulfillment by the Conduit Purchaser of the termshereof, will conflict with, or violate, result in a breach of or constitute adefault under any term or provision of the Articles of Incorporation or By-lawsof the Conduit Purchaser or any Governmental Rule applicable to the ConduitPurchaser.

 

SECTION6.03.      Securities Act.  The Series 2000-VFC Certificate purchased bythe Administrative Agent on behalf of the Purchasers pursuant to thisAgreement will be acquired for investment only and not with a view to anypublic distribution thereof, and no Conduit Purchaser will offer to sell orotherwise dispose of its interest in the Series 2000-VFC Certificate soacquired by it (or any interest therein) in violation of any of theregistration requirements of the Act or any applicable state or othersecurities laws.  The AdministrativeAgent and each Purchaser acknowledges that it has no right to require the Sellerto register under the Act or any other securities law any Series 2000-VFCCertificate to be acquired by the Administrative Agent on behalf of suchPurchaser pursuant to this Agreement.

 

The Conduit Purchasers, theCommitted Purchasers, the Managing Agents and Administrative Agent have suchknowledge and experience in financial and business matters as

 

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to be capable of evaluating the merits andrisks of an investment in the Series 2000-VFC Certificate and the ConduitPurchasers, the Managing Agents, and Committed Purchaser are able to bear theeconomic risk of such investment. The Conduit Purchasers, the Managing Agents,Committed Purchasers and Administrative Agent have reviewed the Pooling andServicing Agreement and the Series Supplement (including the schedule andexhibits thereto) and have had the opportunity to perform due diligence withrespect thereto and to ask questions of and receive answers from the Seller andits representatives concerning the Seller, the Master Trust and the Series 2000-VFCCertificate. Each of the Conduit Purchasers, the Committed Purchasers, theManaging Agents and Administrative Agent is an “accredited investor” as definedin Rule 501, promulgated by the Securities and Exchange Commission (the “Commission”)under the Securities Act of 1933, as amended.

 

SECTION6.04.      Investment Company Act.  Neither the Purchasers nor any Agent isrequired to register as an “investment company” nor is any Purchaser or Agentcontrolled by an “investment company” within the meaning of the InvestmentCompany Act of 1940, as amended.

 

ARTICLE VII

 

COVENANTS OF THE SELLER

 

SECTION7.01.      Access to Information.  So long as any Series 2000-VFC Certificateremains outstanding, the Seller will, at any time from time to time duringregular business hours with reasonable notice to the Seller, permit thePurchasers, the Managing Agents or the Administrative Agent, or their agents orrepresentatives to:

 

(a)           examine all books, records and documents (includingcomputer tapes and disks) in the possession or under the control of the Sellerrelating to the Dealer Notes, and

 

(b)           visit the offices and property of the Seller for thepurpose of examining such materials described in clause (a) above.

 

Except as provided in Section11.05, any information obtained by the Purchasers, the Managing Agents orthe Administrative Agent pursuant to this Section 7.01 shall be held inconfidence by the Purchasers, the Managing Agents and the Administrative Agentunless and to the extent such information (i) has become available to thepublic, (ii) is required or requested by any Governmental Authority or in anycourt proceeding or (iii) is required by any Governmental Rule.  In the case of any disclosure permitted byclause (ii) or (iii), the Purchasers, the Managing Agents and theAdministrative Agent shall use commercially reasonable efforts to (x) providethe Seller with advance notice of any such disclosure and (y) cooperate withthe Seller in limiting the extent or effect of any such disclosure.

 

SECTION7.02.      Security Interests; FurtherAssurances.  The Seller will take allaction reasonably necessary to maintain the Master Trust Trustee’s firstpriority perfected ownership or security interest in the Dealer Notes and thecollateral granted pursuant to Sections 2.01 and 2.02 of the Pooling andServicing Agreement.  The Seller agreesto take any and all acts and to execute any and all further instrumentsnecessary or reasonably requested by a Conduit

 

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Purchaser, a Managing Agent or theAdministrative Agent to more fully effect the purposes of this Agreement.

 

SECTION7.03.      Covenants.  The Seller will duly observe and perform eachof its covenants set forth in the other Series Documents in all materialrespects.

 

SECTION7.04.      Amendments.  The Seller will not make, or permit anyPerson to make, any amendment, modification or change to, or provide any waiverunder the Series Supplement without the prior written consent of the ManagingAgents.

 

ARTICLE VIIA

 

COVENANTS OF NFC

 

SECTION7A.01   Information from NFC.  So long as the Series 2000-VFC Certificateremains outstanding, NFC will furnish to the Administrative Agent (who willpromptly forward copies thereof to each Managing Agent):

 

(a)           a copy of each certificate, opinion, report, statement,notice or other communication (other than investment instructions) furnished byor on behalf of NFC or the Seller to the Master Trust Trustee or the RatingAgencies under any Series Document, concurrently therewith, and promptly afterreceipt thereof, a copy of each notice, demand or other communication receivedby or on behalf of NFC or the Seller under any Series Document;

 

(b)           such other information (including financial information),documents, records or reports respecting the Master Trust, the Dealer Notes,the Seller or, to the extent it relates to the origination of Dealer Notes orthe servicing of the Master Trust, NFC, as the Administrative Agent, on its ownbehalf or on behalf of a Purchaser, or a Managing Agent may from time to timereasonably request;

 

(c)           as soon as available and in any event within (i) 45 daysafter the end of each of the first three fiscal quarters of any fiscal year and(ii) 120 days after the end of the last fiscal quarter of any fiscal year,copies of the interim or annual, as applicable, financial statements of NFC,prepared in conformity with generally accepted accounting principles consistentlyapplied;

 

(d)           as soon as possible and in any event within two BusinessDays after knowledge thereof by a Responsible Officer of NFC, notice of eachEarly Amortization Event or event which with the giving of notice or thepassage of time or both would constitute an Early Amortization Event; and

 

(e)           as soon as possible and in any event within sixty daysafter the formation of a special purpose entity having an ownership interest inthe DealCor dealers, an opinion of counsel, in form and substance satisfactoryto each Agent, with respect to certain bankruptcy matters.

 

SECTION7A.02   Access to Information.  So long as any Series 2000-VFC Certificateremains outstanding, NFC will, at any time from time to time during regularbusiness

 

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hours with reasonable notice to NFC, permitthe Purchasers, each Managing Agent and the Administrative Agent, or theiragents or representatives to:

 

(a)           examine all books, records and documents (includingcomputer tapes and disks) in the possession or under the control of NFCrelating to the Dealer Notes, and

 

(b)           visit the offices and property of NFC for the purpose ofexamining such materials described in clause (a) above.

 

Except as provided in Section11.05, any information obtained by a Purchaser or an Agent pursuant to thisSection 7A.02 shall be held in confidence by such Purchaser or Agent,unless and to the extent such information (i) has become available to thepublic, (ii) is required or requested by any Governmental Authority or in anycourt proceeding or (iii) is required by any Governmental Rule.  In the case of any disclosure permitted byclause (ii) or (iii), the Purchasers, the Managing Agents and the AdministrativeAgent shall use commercially reasonable efforts to (x) provide NFC with advancenotice of any such disclosure and (y) cooperate with NFC in limiting the extentor effect of any such disclosure.

 

SECTION7A.03   Covenants.  NFC will duly observe and perform each of itscovenants set forth in the other Series Documents in all material respects.

 

SECTION7A.04   Amendments.  NFC will not make, or permit any Person tomake, any material amendment, modification or change to, or provide any waiverunder the Series Supplement without the prior written consent of the ManagingAgents.

 

ARTICLE VIII

 

ADDITIONAL COVENANTS

 

SECTION8.01.      Legal Conditions toEffectiveness of this Agreement.  Theparties hereto will take all reasonable action necessary to obtain (and willcooperate with one another in obtaining) any consent, authorization, permit,license, franchise, order or approval of, or any exemption by, any GovernmentalAuthority or any other Person, required to be obtained or made by it inconnection with any of the transactions contemplated by this Agreement.

 

SECTION8.02.      Expenses.  Whether or not the Effective Date shalloccur, except as otherwise expressly provided herein or in the Fee letter, allcosts and expenses incurred in connection with this Agreement and thetransactions contemplated hereby shall (as between the Seller, theAdministrative Agent, the Managing Agents and the Purchasers) be paid by theSeller.

 

SECTION8.03.      Mutual Obligations.  On and after the Effective Date, each partyhereto will do, execute and perform all such other acts, deeds and documents asthe other party may from time to time reasonably require in order to carry outthe intent of this Agreement.

 

SECTION8.04.      Restrictions on Transfer.  Each Purchaser and Agent agrees that it willcomply with the restrictions on transfer of the Series 2000-VFC Certificate setforth in the Pooling and Servicing Agreement and the Series Supplement and thatit will resell the Series 2000-VFC Certificate only in compliance with suchrestrictions; provided, however, that the

 

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Seller acknowledges that in the event of thepurchase of the Series 2000-VFC Certificate by any Purchaser or RIC no suchpurchaser will be required to execute and deliver the Investment Letter.

 

SECTION8.05.      Consents, etc.  Each Purchaser and Agent agrees not tounreasonably withhold or delay its consent to any amendment or other matterrequiring consent of the Series 2000-VFC Certificateholders under a provisionof any Series Document to the extent that such provision specifies that suchconsent is not to be unreasonably withheld or delayed.

 

ARTICLE IX

 

INDEMNIFICATION

 

SECTION9.01.      Indemnification.  (a) The Seller hereby agrees to indemnify and hold harmless each IndemnifiedParty against any and all losses, claims, damages, liabilities or expenses(including reasonable legal and accounting fees) (collectively, “SellerLosses”), as incurred (payable promptly upon written request), for or onaccount of or arising from or in connection with this Agreement, including anybreach of any representation, warranty or covenant of the Seller in thisAgreement or in any certificate or other written material delivered pursuanthereto.

 

(b)           NFC hereby agrees to indemnify and hold harmless eachIndemnified Party against any and all losses, claims, damages, liabilities orexpenses (including reasonable legal and accounting fees) (collectively, “NFCLosses”), as incurred (payable promptly upon written request), for or onaccount of or arising from or in connection with any breach of any representation,warranty or covenant of NFC in this Agreement or in any certificate or otherwritten material delivered pursuant hereto.

 

(c)           Notwithstanding Sections 9.01(a) and (b), inno event shall any Indemnified Party be indemnified for Seller Losses or NFCLosses to the extent (i) resulting from the performance of the Dealer Notes,market fluctuations or other similar market or investment risks associated withownership of the Series 2000-VFC Certificates, (ii) which would otherwise becovered in Sections 9.04 and 9.05 hereof, (iii) arising from suchIndemnified Party’s gross negligence or willful misconduct, (iv) arising from abreach of any representation or warranty set forth in the Pooling and ServicingAgreement, a remedy for the breach of which is provided in Section 2.06 of thePooling and Servicing Agreement or (v) arising from a breach of anyrepresentation or warranty set forth in the Purchase Agreement, a remedy forthe breach of which is provided in Section 4.06(d) of the Purchase Agreement.

 

SECTION9.02.      Procedure.  In order for an Indemnified Party to beentitled to any indemnification provided for under this Agreement in respectof, arising out of, or involving a claim made by any Person against theIndemnified Party (a “Third Party Claim”), such Indemnified Party mustnotify NFC or the Seller, as applicable (the “Applicable Indemnifying Party”)in writing of the Third Party Claim within a reasonable time after receipt bysuch Indemnified Party of written notice of the Third Party Claim unless theApplicable Indemnifying Party shall have previously obtained actual knowledgethereof.  Thereafter, the Indemnified

 

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Party shall deliver to the ApplicableIndemnifying Party, within a reasonable time after the Indemnified Party’sreceipt thereof, copies of all notices and documents (including court papers)received by the Indemnified Party relating to the Third Party Claim.

 

SECTION9.03.      Defense of Claims.  If a Third Party Claim is made against anIndemnified Party, (a) the Applicable Indemnifying Party will be entitledto participate in the defense thereof and, (b) if it so chooses, to assumethe defense thereof with counsel selected by the Applicable Indemnifying Party,provided that in connection with such assumption (i) such counsel is not reasonablyobjected to by the Indemnified Party and (ii) the Applicable Indemnifying Partyfirst admits in writing their joint and several liability to indemnify theIndemnified Party with respect to all elements of such claim in full.  Should the Applicable Indemnifying Party soelect to assume the defense of a Third Party Claim, the Applicable IndemnifyingParty will not be liable to the Indemnified Party for any legal expensessubsequently incurred by the Indemnified Party in connection with the defense thereof.  If the Applicable Indemnifying Party electsto assume the defense of a Third Party Claim, the Indemnified Party will (i)cooperate in all reasonable respects with the Applicable Indemnifying Party inconnection with such defense and (ii) not admit any liability with respect to,or settle, compromise or discharge, such Third Party Claim without theApplicable Indemnifying Party’s prior written consent, as the case may be.  If the Applicable Indemnifying Party shallassume the defense of any Third Party Claim, the Indemnified Party shall beentitled to participate in (but not control) such defense with its own counselat its own expense.  If the ApplicableIndemnifying Party does not assume the defense of any such Third Party Claim,the Indemnified Party may defend the same in such manner as it may deemappropriate, including settling such claim or litigation after giving notice tothe Applicable Indemnifying Party of such terms and the Applicable IndemnifyingParty will promptly reimburse the Indemnified Party upon written request.  Anything contained in this Agreement to thecontrary notwithstanding, an Applicable Indemnifying Party shall be entitled toassume the defense of any part of a Third Party Claim that seeks an order,injunction or other equitable relief or relief for other than money damagesagainst the Indemnified Party.

 

SECTION9.04.      Indemnity for Taxes,Reserves and Expenses.  (a)  If after the date hereof, the adoption of anyapplicable law, rule, standard or regulation by any Official Body or anyamendment or change in the interpretation of any existing or future applicablelaw, rule, standard or regulation by any Official Body charged with theadministration, interpretation or application thereof (including, but notlimited to, any interpretation of Accounting Research Bulletin No. 51 by theFinancial Accounting Standards Board) or the compliance with any directive ofany Official Body (whether or not having the force of Governmental Rule):

 

(i)            shall subject any Indemnified Partyto any tax, duty, deduction or other charge with respect to the Dealer Notes,the Pooling and Servicing Agreement, the Series Supplement, the Series 2000-VFCCertificate, this Agreement or payments of amounts due thereunder, or shallchange the basis of taxation of payments to any Indemnified Party of amountspayable in respect thereof (except for changes in the rate of generalcorporate, franchise, net income or other income tax (including by means ofwithholding) imposed on such Indemnified Party by the United States of America,the jurisdiction in which such Indemnified Party’s principal executive officeis located or any other

 

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jurisdiction in which theIndemnified Party would be subject to such tax even if the transactionscontemplated by this Agreement had not occurred); or

 

(ii)           shall impose, modify or deemapplicable any reserve, capital, special deposit or similar requirement(including, without limitation, any such requirement imposed by the Board ofGovernors of the Federal Reserve System) against assets of, deposits with orfor the account of, or credit extended by, any Indemnified Party or shallimpose on any Indemnified Party or on the United States market for certificatesof deposit or the London interbank market any other condition affecting theDealer Notes, the Pooling and Servicing Agreement, the Series Supplement, theSeries 2000-VFC Certificate, this Agreement or payments of amounts duethereunder (including with respect to Eurocurrency liability reserves); or

 

(iii)          imposes upon any Indemnified Party anyother cost or expense (including, without limitation, reasonable attorneys’fees and expenses, and expenses of litigation or preparation therefor incontesting any of the foregoing if such a contest is requested by theApplicable Indemnifying Party) with respect to the Dealer Notes, the Series2000-VFC Certificate, any Series Document or payments of amounts due hereunderor thereunder;

 

and the result of any of the foregoing is toincrease the cost or reduce the payments to such Indemnified Party with respectto the Dealer Notes, the Pooling and Servicing Agreement, the SeriesSupplement, the Series 2000-VFC Certificate, this Agreement or payments ofamounts due thereunder or the obligations thereunder or the funding of anypurchases (including Incremental Fundings) with respect thereto by anyPurchaser, by an amount deemed by such Indemnified Party to be material, thensuch amount or amounts as will compensate such Indemnified Party for suchincreased cost or reduced payments shall be payable to such Indemnified Partyin accordance with Section 9.05(c).

 

(b)           If any Indemnified Party shall have determined that, afterthe date hereof, the adoption of any applicable law, rule, standard orregulation by any Official Body regarding or related to capital adequacy, orany change therein, or any change in the interpretation thereof by any OfficialBody, or any directive regarding or related to capital adequacy (whether or nothaving the force of a Governmental Rule) of any such Official Body, has or wouldhave the effect of reducing the rate of return on capital of such IndemnifiedParty’s obligations hereunder or with respect hereto to a level below thatwhich such Indemnified Party (or its parent) could have achieved but for suchadoption, change, request or directive (taking into consideration its policieswith respect to capital adequacy) by an amount deemed by such Indemnified Partyto be material, then from time to time, such additional amount or amounts aswill compensate such Indemnified Party (or its parent) for such reduction shallbe payable to such Indemnified Party in accordance with Section 9.05(c).  For avoidance of doubt, any interpretation ofAccounting Research Bulletin No. 51 by the Financial Accounting Standards Boardshall constitute an adoption, change, request or directive subject to thisSection 9.4(b).

 

(c)           Any Indemnified Party who makes a demand for payment ofincreased costs or capital pursuant to Section 9.04(a) or (b)shall promptly deliver to the Seller a certificate setting forth in reasonabledetail the computation of such increased costs or capital and specifying the

 

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basis therefor.  In the absence of manifest error, suchcertificate shall be conclusive and binding for all purposes.  Each Indemnified Party shall use reasonableefforts to mitigate the effect upon of any such increased costs or capitalrequirements; provided, it shall not be obligated to take any actionthat it determines would be disadvantageous to it or inconsistent with itspolicies.

 

SECTION9.05.      Costs, Expenses, Taxes,Breakage Payments and Increased Costs under this Agreement and Program Facility.  (a) Subject to the payment terms of Section 9.05, each of the Seller and NFCagree to pay to the Administrative Agent, each Purchaser and its Managing Agent(i) all reasonable costs and expenses in connection with the preparation,execution and delivery of this Agreement, the other documents to be deliveredhereunder or in connection herewith and any requested amendments, waivers orconsents or examination or visit by the Purchasers, the Managing Agents orAdministrative Agent pursuant to Section 7.01 or 7A.02 hereofincluding, without limitation, the reasonable fees and out-of-pocket expensesof counsel for the Purchasers, the Managing Agents and the AdministrativeAgent, with respect thereto and with respect to advising the Purchasers, theManaging Agents and the Administrative Agent as to its respective rights andremedies under this Agreement and the other documents delivered hereunder or inconnection herewith and (ii) all costs and expenses, if any, in connection withthe enforcement of this Agreement and the other documents delivered hereunderor in connection herewith.

 

(b)           Subject to the payment terms of Section 9.05, eachof NFC and the Seller agrees to pay any and all stamp and other taxes and feespayable in connection with the execution, delivery, filing and recording ofthis Agreement, the Series 2000-VFC Certificate or the other documents andagreements to be delivered hereunder, and agrees to hold each Purchaser, eachManaging Agent and the Administrative Agent harmless from and against anyliabilities with respect to or resulting from any delay in paying or omissionto pay such taxes and fees.

 

(c)           The Seller shall be obligated to pay the amount of anyBreakage Payments, other Additional Amounts or Non-Use Fee payable on eachDistribution Date to the extent not paid when required pursuant toSection 4.04 of the Series Supplement; provided, that the Sellershall be required to make such payments solely to the extent of any cash flowspayable to the Seller on such date from the Master Trust.  If and to the extent that any AdditionalAmounts (other than Breakage Payments) or Non-Use Fee shall remain outstandingafter payment by the Seller pursuant to the preceding sentence on anyDistribution Date, NFC shall be required to make such payments within 10 daysafter demand therefor by the Administrative Agent or the applicable payee.

 

(d)           If a Conduit Purchaser becomes obligated to compensate anyfinancial institution under its commercial paper program as a result of anyevents or circumstances similar to those described in Sections 9.04 or 9.05(c),such Conduit Purchaser shall promptly deliver to the Seller a certificatesetting forth in reasonable detail the computation of such amounts.  In the absence of manifest error, suchcertificate shall be conclusive and binding for all purposes.  The Seller shall be obligated to pay to suchConduit Purchaser, promptly after receipt of such certificate, such additionalamounts as may be necessary to reimburse such Conduit Purchaser for any amountsso paid by such Conduit Purchaser.  Withrespect to amounts to be paid pursuant to this Section 9.05(d) as aresult of any events or circumstances similar to those described in Section9.04 or 9.05(c) hereof, the applicable Conduit Purchaser shallrequest the party to be compensated to use

 

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its reasonable efforts to mitigate the effectupon the Seller of any such increased costs or capital requirements; provided,such party shall not be obligated to take any action that it determines wouldbe disadvantageous to it or inconsistent with its policies.

 

ARTICLE X

 

THE AGENTS

 

SECTION10.01.    Authorization and Action.  Each Purchaser hereby accepts the appointmentof and authorizes each Agent to take such action as agent on its behalf and toexercise such powers as are delegated to such Agent by the terms hereof,together with such powers as are reasonably incidental thereto.  Such Agent reserves the right, in its sole discretion,to take any actions and exercise any rights or remedies under this Agreementand any related agreements and documents. Except for actions which an Agent is expressly required to take pursuantto this Agreement or an Asset Purchase Agreement, such Agent shall not berequired to take any action which exposes such Agent to personal liability orwhich is contrary to applicable law unless such Agent shall receive furtherassurances to its satisfaction from the Purchasers, of the indemnification obligationsunder Section 10.04 hereof against any and all liability and expensewhich may be incurred in taking or continuing to take such action.  Each Agent agrees to give to the Purchasersprompt notice of each notice and determination given to it by the Seller, theServicer or the Master Trust Trustee, pursuant to the terms of this Agreement,the Pooling and Servicing Agreement or the Series Supplement.  Subject to Section 10.06 hereof, theappointment and authority of each Agent hereunder shall terminate upon (i) thepayment to (a) the Purchasers of all amounts owing to the Purchasers hereunderand (b) each Agent of all amounts due hereunder and (ii) the Series TerminationDate specified in the Series Supplement.

 

SECTION10.02.    Agent’s Reliance, Etc.  No Agent nor any of its directors, officers,agents or employees shall be liable for any action taken or omitted to be takenby it or them as an Agent under or in connection with this Agreement or anyrelated agreement or document, except for its or their own gross negligence orwillful misconduct.  Without limiting theforegoing, each Agent:  (i) may consultwith legal counsel, independent public accountants and other experts selectedby it and shall not be liable for any action taken or omitted to be taken ingood faith by it in accordance with the advice of such counsel, accountants orexperts; (ii) makes no warranty or representation to the Purchasers or Agentsand shall not be responsible to the Purchasers or Agents for any statements,warranties or representations made by the Seller or NFC (in any capacity) inconnection with any Series Document; (iii) shall not have any duty to ascertainor to inquire as to the performance or observance of any of the terms,covenants or conditions of any Series Document on the part of the Seller or NFC(in any capacity) or to inspect the property (including the books and records)of the Seller or NFC (in any capacity); (iv) shall not be responsible to anyPurchaser or Agents for the due execution, legality, validity, enforceability,genuineness, sufficiency or value of this Agreement or any other instrument ordocument furnished pursuant hereto; and (v) shall incur no liability under orin respect of this Agreement by acting upon any notice (including notice bytelephone), consent, certificate or other instrument or writing (which may beby telex) believed by it in good faith to be genuine and signed or sent by theproper party or parties.

 

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SECTION10.03.    Agents and Affiliates.  Each Agent and its respective Affiliates maygenerally engage in any kind of business with the Seller, NFC or any Obligor,any of their respective Affiliates and any Person who may do business with orown securities of the Seller, NFC or any Obligor or any of their respectiveAffiliates, all as if such entities were not an Agent and without any duty toaccount therefor to the Purchasers.

 

SECTION10.04.    Indemnification.  Each Purchaser (other than the ConduitPurchasers) severally agrees to indemnify the Administrative Agent and itsrelated Managing Agent (to the extent not reimbursed by the Seller or NFC),from and against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind or nature whatsoever which may be imposed on, incurred by, or assertedagainst such Agents in any way relating to or arising out of this Agreement orany action taken or omitted by such Agents under this Agreement; provided, that(i) no Purchaser shall be liable for any portion of such liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs,expenses or disbursements resulting or arising from such Agent’s grossnegligence or willful misconduct and (ii) no Purchaser shall be liable for anyamount in respect of any compromise or settlement or any of the foregoingunless such compromise or settlement is approved by each Conduit Purchaser andthe majority of the Committed Purchasers (in the case of Liquidity Purchasers,based on purchase commitments under the related Asset Purchase Agreement and inthe case of this Agreement, based on Commitments hereunder).  Without limitation of the generality of theforegoing, each Purchaser (other than a Conduit Purchaser), agrees to reimbursethe Administrative Agent and its related Managing Agent, promptly upon demand,for any reasonable out-of-pocket expenses (including reasonable counsel fees)incurred by such Agents in connection with the administration, modification,amendment or enforcement (whether through negotiations, legal proceedings orotherwise) of, or legal advice in respect of rights or responsibilities under,this Agreement, provided, that no Purchaser shall be responsible for the costsand expenses of such Agents in defending itself against any claim alleging thegross negligence or willful misconduct of such Agents to the extent such grossnegligence or willful misconduct is determined by a court of competentjurisdiction in a final and non-appealable decision.

 

SECTION10.05.    Purchase Decision.  Each Purchaser acknowledges that it has,independently and without reliance upon any Agent, and based on such documentsand information as it has deemed appropriate, made its own evaluation anddecision to enter into this Agreement and to purchase an interest in the Series2000-VFC Certificate.  Each Purchaser alsoacknowledges that it will, independently and without reliance upon any Agent orany of its Affiliates, and based on such documents and information as it shalldeem appropriate at the time, continue to make its own decisions in taking ornot taking action under this Agreement or any related agreement, instrument orother document.

 

SECTION10.06.    Successor AdministrativeAgent.  The Administrative Agent mayresign at any time by giving sixty days’ written notice thereof to thePurchasers, the Managing Agents, the Seller, the Servicer and the Master TrustTrustee.  Upon any such resignation, thePurchasers shall have the right to appoint a successor Administrative Agentapproved by the Seller (which approval will not be unreasonably withheld ordelayed).  If no successor AdministrativeAgent shall have been so appointed and shall have accepted such appointment,within sixty days after the retiring Administrative Agent’s giving of notice ofresignation, then

 

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the retiring Administrative Agent may, onbehalf of the Purchasers, appoint a successor Administrative Agent.  If such successor Administrative Agent is notan Affiliate of the resigning Administrative Agent, such successorAdministrative Agent shall be subject to the Seller’s prior written approval(which approval will not be unreasonably withheld or delayed).  Upon the acceptance of any appointment asAdministrative Agent hereunder by a successor Administrative Agent, suchsuccessor Administrative Agent shall thereupon succeed to and become vestedwith all of the rights, powers, privileges and duties of the retiringAdministrative Agent, and the retiring Administrative Agent shall be dischargedfrom its duties and obligations under this Agreement.  After any retiring Administrative Agent’sresignation hereunder as Administrative Agent, the provisions of this ArticleX shall inure to its benefit as to any actions taken or omitted to be takenby it while it was an Administrative Agent under this Agreement.

 

ARTICLE XI

 

MISCELLANEOUS

 

SECTION11.01.    Amendments.  No amendment or waiver of any provision ofthis Agreement shall in any event be effective unless the same shall be inwriting and signed by all of the parties hereto, and then such amendment,waiver or consent shall be effective only in the specific instance and for thespecific purpose for which given.

 

SECTION11.02.    Notices.  All notices and other communications providedfor hereunder shall, unless otherwise stated herein, be in writing (includingtelecopies, telegraphic, telex or cable communication) and mailed, telecopied,telegraphed, cabled or delivered, as to each party hereto, at its address setforth in Schedule I hereto or at such other address as shall bedesignated by such party in a written notice to the other party hereto.  All such notices and communications shall,when mailed, telecopied, telegraphed or cabled, be effective when deposited inthe mail, confirmed by telephone, delivered to the telegraph company ordelivered to the cable company, respectively.

 

SECTION11.03.    No Waiver; Remedies.  No failure on the part of any party hereto toexercise, and no delay in exercising, any right hereunder shall operate as awaiver thereof; nor shall any single or partial exercise of any right hereunderpreclude any other or further exercise thereof or the exercise of any otherright.  The remedies herein provided arecumulative and not exclusive of any remedies provided by law.

 

SECTION11.04.    Binding Effect; Assignability.  (a) This Agreement shall be binding upon and inure to the benefit of theSeller, NFC, the Administrative Agent, the Managing Agents and the Purchasersparty this Agreement and their respective successors and assigns (including anysubsequent holders of the Series 2000-VFC Certificate); provided, however,that the Seller shall not have the right to assign its rights hereunder or anyinterest herein (by operation of law or otherwise) without the prior writtenconsent of each Managing Agent.  TheAdministrative Agent agrees that it shall not transfer a Series 2000-VFCCertificate without the Seller’s consent, unless such transfer (x) is to aPurchaser, (y) is to a RIC or (z) occurs after the commencement of the EarlyAmortization Period.

 

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Without limiting theforegoing, a Managing Agent on behalf of a Conduit Purchaser may, from time totime, with prior or concurrent notice to the Seller and the Servicer, in onetransaction or a series of transactions, assign all or a portion of a Series2000-VFC Certificate and its rights and obligations under this Agreement to aRIC or a Committed Purchaser within its Purchaser Group.  Upon and to the extent of such assignment toa RIC or Committed Purchaser, (i) the RIC or Committed Purchaser shall be theowner of the assigned portion of the Series 2000-VFC Certificate, (ii) suchManaging Agent (or an Affiliate thereof) will act as Managing Agent for the RICor Committed Purchaser and the Administrative Agent shall act as AdministrativeAgent for the RIC or Committed Purchaser as well as for the assigning ConduitPurchaser, with all corresponding rights and powers, express or implied,granted herein to the Administrative Agent, (iii) the RIC or CommittedPurchaser and their Program Support Providers and other related parties shallhave the benefit of all the rights and protections provided to the assigningConduit Purchaser and its Program Support Providers and other related parties,respectively, herein and in the other Series Documents (including, withoutlimitation, any limitation on recourse against the assigning Conduit Purchaseror related parties, any agreement not to file or join in the filing of apetition to commence an insolvency proceeding against the assigning ConduitPurchaser, and the right to assign to another RIC or Committed Purchaser asprovided in this paragraph), (iv) the RIC or Committed Purchaser shall assumeall obligations, if any, of the assigning Conduit Purchaser under and inconnection with this Agreement, and the assigning Conduit Purchaser shall bereleased from such obligations, in each case to the extent of such assignment,and the obligations of the assigning Conduit Purchaser (if any) and the RIC orCommitted Purchaser shall be several and not joint, (v) all distributions inrespect of principal or interest shall be made to the assigning ConduitPurchaser and the RIC or Committed Purchaser, on a pro rata basis according totheir respective interests (or in the case of interest, the accrued amountsthereof), (vi) the Funding Rate used to calculate the interest with respect tothe portions of the Series 2000-VFC Certificate owned on behalf of the RIC orCommitted Purchaser and funded with commercial paper notes issued by the RICfrom time to time shall be determined in the manner set forth in the definitionof “CP Rate” on the basis of the discount or interest rates applicable tocommercial paper issued by the RIC (rather than the assigning ConduitPurchaser), (vii) the defined terms and other terms and provisions of thisAgreement and the other Transaction Documents shall be interpreted inaccordance with the foregoing, and (viii) if requested by the AdministrativeAgent, the parties will execute and deliver such further agreements anddocuments and take such other actions as the Administrative Agent mayreasonably request to evidence and give effect to the foregoing.

 

(b)           Without the consent of the Seller, each CommittedPurchaser party to this Agreement may assign all or a portion of its rights andobligations under this Agreement to any financial or other institution acceptableto the Administrative Agent.  The partiesto each such assignment shall execute and deliver an Assignment and Acceptanceto the Administrative Agent, and the Administrative Agent shall promptly notifythe Seller of such assignment.  From andafter the effective date of such Assignment and Acceptance, the assigningCommitted Purchaser shall be relieved of its obligations hereunder to theextent so assigned.

 

(c)           Assigned Amounts. At any time on or prior to the Purchase Expiration Date related to theKHFC Purchaser Group, if the Managing Agent on behalf of the Conduit Purchaserin the KHFC Group so elects, by written notice to the Administrative Agent,such Conduit Purchaser does hereby assign, effective on the Assignment of, itinterest in the Funded Amount

 

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and Series 2000-VFC Certificate at such timeto the Committed Purchasers in its Purchaser Group pursuant to this Section11.04; provided, however, that unless such assignment is an assignment of allof such Conduit Purchaser’s interest in the Funded Amount and the Series2000-VFC Certificate in whole on or after such Conduit Purchaser TerminationDate, no such assignment shall take place pursuant to this Section 11.04 at atime when such Conduit Purchaser is insolvent or subject to any voluntary orinvoluntary bankruptcy proceeding.  Nofurther documentation or action on the part of a Conduit Purchaser or theSeller shall be required to exercise the rights set forth in the immediatelypreceding sentence, other than the giving of the notice by the related ManagingAgent on behalf of such Conduit Purchaser referred to in such sentence and thedelivery by the Managing Agent of a copy of such notice to each CommittedPurchaser in its Purchaser Group (the date of the receipt by the relatedManaging Agent of any such notice being the “Assignment Date”).  Each related Committed Purchaser in suchConduit Purchaser’s Purchaser Group hereby agrees, unconditionally andirrevocably and under all circumstances, without setoff, counterclaim ordefense of any kind, to pay the full amount of its Assignment Amount on suchAssignment Date to the applicable Conduit Purchaser in immediately availablefunds to an account designated by the applicable Managing Agent.  Upon payment of its Assignment Amount, eachrelated Committed Purchaser shall acquire an interest in the funded Amount andthe Series 2000-VFC Certificate equal to its pro rata share (based on theoutstanding portions of the Funded Amount funded by it) of the assigned portionof the Funded Amount.  Upon any assignmentin whole by a Conduit Purchaser to the Committed Purchasers in its PurchaserGroup on or after the Conduit Purchaser Termination Date as contemplatedhereunder, such Conduit Purchaser shall cease to make any Incremental Fundingshereunder.  At all time prior to theConduit Purchaser Termination Date, nothing herein shall prevent a ConduitPurchaser from making a subsequent Incremental Funding hereunder, in its solediscretion, following any assignment pursuant to this Section 11.04 o r frommaking more than one assignment pursuant to this Section 11.04.

 

(d)           Any Purchaser may, in the ordinary course of its businessand in accordance with applicable law, at any time sell to one or more Persons(each, a “Participant”) participating interests in all or a portion ofits rights and obligations under this Agreement.  Notwithstanding any such sale by a Purchaserof participating interests to a Participant, such Purchaser’s rights andobligations under this Agreement shall remain unchanged, such Purchaser shallremain solely responsible for the performance thereof, and the Seller, eachManaging Agent and the Administrative Agent shall continue to deal solely anddirectly with such Purchaser in connection with such Purchaser’s rights andobligations under this Agreement.  TheSeller also agrees that each Participant shall be entitled to the benefits of ArticleIX hereof; provided, however, that all amounts payable by theSeller to any such Participant shall be limited to the amounts which would havebeen payable to the Purchaser selling such participating interest had suchinterest not been sold.

 

(e)           This Agreement shall create and constitute the continuingobligation of the parties hereto in accordance with its terms, and shall remainin full force and effect until such time as all amounts payable with respect tothe Series 2000-VFC Certificates shall have been paid in full.

 

SECTION11.05.    Provision of Documents andInformation.  The Seller acknowledgesand agrees that the Conduit Purchasers, the Committed Purchasers, the ManagingAgents and Administrative Agent are permitted to provide to the LiquidityPurchasers, permitted

 

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assignees and participants, the placementagents for their respective commercial paper notes, the rating agencies withrespect to such notes and other liquidity and credit providers under theirrespective commercial paper programs, opinions, certificates, documents andother information relating to the Seller, NFC and the Dealer Notes delivered tothe Conduit Purchasers, the Committed Purchasers, the Managing Agents or theAdministrative Agent pursuant to this Agreement.

 

SECTION11.06.    GOVERNING LAW; JURISDICTION.  THIS AGREEMENT SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUTREFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE JURISDICTIONOF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ANDANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF.  EACH OF THE PARTIES HEREBY WAIVES ANYOBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OFANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS ANDCONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMEDAPPROPRIATE BY SUCH COURT.

 

SECTION11.07.    No Proceedings; Limitation onPayments.  (a)  The Seller agrees that so long as any Notesof a Conduit Purchaser shall be outstanding or there shall not have elapsed oneyear plus one day since the last day on which any Notes of such ConduitPurchaser shall have been outstanding, it shall not file, or join in the filingof, a petition against a Conduit Purchaser or the Master Trust under theFederal Bankruptcy Code, or join in the commencement of any bankruptcy, reorganization,arrangement, insolvency, liquidation or other similar proceeding against aConduit Purchaser or the Master Trust.

 

(b)           Each Purchaser severally agrees that it shall not at anytime file, or join in the filing of, a petition against the Seller, the MasterTrust Trustee (solely in its capacity as acting as such for the Master Trust)or the Master Trust under the Federal Bankruptcy Code, or join in thecommencement of any bankruptcy, reorganization, arrangement, insolvency,liquidation or other similar proceeding against the Seller, the Master TrustTrustee (solely in its capacity as acting as such for the Master Trust) or theMaster Trust.

 

(c)           Notwithstanding any provisions contained in this Agreementto the contrary, no Conduit Purchaser shall, or shall be obligated to, pay anyamount, if any, payable by it pursuant to this Agreement or the transactioncontemplated hereby unless (i) such Conduit Purchaser has received fundswhich may be used to make such payment and which funds are not required torepay Notes when due and (ii) after giving effect to such payment, either (x)such Conduit Purchaser could issue Notes to refinance all outstanding Notes(assuming such outstanding Notes matured at such time) in accordance with theprogram documents governing such Conduit Purchaser’s securitization program or(y) all Notes of such Conduit Purchaser are paid in full. Any amount which suchConduit Purchaser does not pay pursuant to the operation of the precedingsentence shall not constitute a claim (as defined in §101 of the BankruptcyCode) against or company obligation of such Conduit Purchaser for any suchinsufficiency unless and until such Conduit Purchaser satisfies the provisionsof clauses (i) and (ii) above.

 

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SECTION11.08.    Execution in Counterparts.  This Agreement may be executed in any numberof counterparts and by different parties hereto in separate counterparts, eachof which when so executed shall be deemed to be an original and all of whichwhen taken together shall constitute one and the same agreement.

 

SECTION11.09.    No Recourse.  The obligations of any Purchaser under thisAgreement, or any other agreement, instrument, document or certificate executedand delivered by or issued by such Purchaser or any officer thereof are solely thecorporate or partnership obligations of such Purchaser.  No recourse shall be had for payment of anyfee or other obligation or claim arising out of or relating to this Agreementor any other agreement, instrument, document or certificate executed and deliveredor issued by such Purchaser or any officer thereof in connection therewith,against any stockholder, limited partner, employee, officer, director orincorporator of such Purchaser.

 

SECTION11.10.    Limited Recourse.  The obligations of each of the Seller and NFCunder this Agreement are solely the corporate obligations of such Person.  No recourse shall be had for the payment ofany fee or other obligation or claim arising out of or relating to thisAgreement or any other agreement, instrument, document or certificate executedand delivered or issued by the Seller or NFC or any officer thereof inconnection therewith, against any stockholder, employee, officer or director ofthe Seller or NFC.

 

SECTION11.11.    Survival.  All representations, warranties, covenants,guaranties and indemnifications contained in this Agreement, including, withoutlimitation, Article IX and Sections 11.07, 11.09 and 11.10,and in any document, certificate or statement delivered pursuant hereto or inconnection herewith shall survive the sale, transfer or repayment of the Series2000-VFC Certificate.

 

SECTION11.12.    Tax Characterization.  Each party to this Agreement (a) acknowledgesand agrees that it is the intent of the parties to this Agreement that, forfederal, state and local income and franchise tax purposes only, the Series2000-VFC Certificate will be treated as evidence of indebtedness secured by theDealer Notes and proceeds thereof and the Master Trust will not becharacterized as an association (or publicly traded partnership) taxable as acorporation, (b) agrees to treat the Series 2000-VFC Certificate for federal,state and local income and franchise tax purposes as indebtedness and (c)agrees that the provisions of this Agreement and all related Series Documentsshall be construed to further these intentions of the parties.

 

SECTION11.13.    Master Trust Rating AgencyNotices.  Each of the Seller and theServicer hereby agree to provide written notice to each of the rating agenciesthen rating any outstanding series issued by the Master Trust at least 5 daysprior to the proposed effectiveness of any (i) any extension of the PurchaseExpiration Date and (ii) any proposed action specified in Section 2.04, Section 7.04,Section 10.06 or Section 11.01 of this Agreement.  Each such notice shall include a copy ordescription of any such proposed action.

 

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IN WITNESS WHEREOF, theparties have caused this Agreement to be executed by their respective officersthereunto duly authorized, as of the date first above written.

 
|   | NAVISTAR FINANCIAL  SECURITIES  CORPORATION,          |                                        |
|--------|-------------------------------------------------------|---------------------------------------------|
|   | as Seller                                             |                                        |
|   |                                                  |                                        |
|   |                                                  |                                        |
|   | By:                                                   | /s/ Andrew J. Cederoth                      |   |   |
|   |                                                  | Name:  Andrew J. Cederoth              |   |   |
|   |                                                  | Title:  Vice President & Treasurer |   |   |
|   |                                                  |                                        |
|   | NAVISTAR FINANCIAL  CORPORATION                       |                                        |
|   | as Servicer                                           |                                        |
|   |                                                  |                                        |
|   | By:                                                   | /s/ Andrew J. Cederoth                      |   |   |
|   |                                                  | Name: Andrew J. Cederoth                    |   |   |
|   |                                                  | Title:  Vice President & Treasurer |   |   |
|   |                                                  |                                        |
|   |                                                  |                                        |
|   | LIBERTY sTREET fUNDING  CORP.,                        |                                        |
|   | as a Conduit Purchaser for  the Liberty Street        |                                        |
|   | Purchaser Group                                       |                                        |
|   |                                                  |                                        |
|   | By:                                                   |  /s/ Bernard J. Angelo                 |   |   |
|   |                                                  | Name:  Bernard J. Angelo               |   |   |
|   |                                                  | Title:    Vice President     |   |   |
|   |                                                  |                                        |
|   |                                                  |                                        |
|   | KITTY HAWK FUNDING  CORPORATION,                      |                                        |
|   | as a Conduit Purchaser for  the KHFC Purchaser  Group |                                        |
|   |                                                  |                                        |
|   |                                                  |                                        |
|   | By:                                                   |  /s/ Jill A. Gordon                    |   |   |
|   |                                                  | Name:  Jill A. Gordon                  |   |   |
|   |                                                  | Title:    Vice President     |   |   |

 

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|   | BANK OF AMERICA, NATIONAL  ASSOCIATION,                                    |
|--------|----------------------------------------------------------------------------|
|   | as Administrative Agent                                                    |
|   |                                                                       |
|   |                                                                       |
|   | By:                                                                        | /s/ William Van Beek |   |
|   |                                                                       | Name: William Van Beek |   |
|   |                                                                       | Title:   Principal |   |
|   |                                                                       |
|   |                                                                       |
|   | THE BANK OF NOVA SCOTIA,                                                   |
|   | as a Conduit Purchaser for  the Liberty Street  Purchaser Group            |
|   |                                                                       |
|   |                                                                       |
|   | By:                                                                        | /s/ Norman Last |   |
|   |                                                                       | Name: Norman Last |   |
|   |                                                                       | Title:   Managing Director |   |
|   |                                                                       | Purchaser Percentage: 50%  Commitment: 200,000,000 |   |
|   |                                                                       |
|   |                                                                       |
|   | BANK OF AMERICA, NATIONAL  ASSOCIATION,                                    |
|   | as a Committed Purchaser  and Managing Agent for  the KHFC Purchaser Group |
|   |                                                                       |
|   |                                                                       |
|   | By:                                                                        | /s/ William Van Beek |   |
|   |                                                                       | Name: William Van Beek |   |
|   |                                                                       | Title:   Principal |   |
|   |                                                                       | Purchaser Percentage: 50%  Commitment: 200,000,000 |   |

 

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EXHIBIT A

 

Formof Notice ofIncremental Funding

 

[Letterheadof Navistar Financial Corporation]

 
| A.     | Proposed  Incremental Funding Date:                                                                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |   |   |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|
| B.     | Amount  of requested Incremental Funding with respect to Series 2000-VFC Certificate  (must be more than $5,000,000 (unless for any lesser remaining Maximum Funded  Amount) but not greater than remaining Maximum Funded Amount) |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | $      |   |
| C.     | Purchase  Price (50% of the Incremental Funded Amount to the Series 2000-VFC  Certificate) for the KHFC Purchaser Group                                                                                                            |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | $      |   |
| D.     | Purchase  Price (50% of the Incremental Funded Amount to the Series 2000-VFC  Certificate) for the Liberty Street Purchaser Group                                                                                                  |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | $      |   |
| E.     | Remaining  Maximum Funded Amount (after giving effect to the requested Incremental  Funding)                                                                                                                                       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | $      |   |
| F.     | Certifications:                                                                                                                                                                                                                    |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |   |   |
|   | (a)                                                                                                                                                                                                                                | The  representations and warranties of Navistar Financial Securities Corporation (“Seller”)  in the Pooling and Servicing Agreement dated as of June 8, 1995 (as amended,  modified and supplemented, the “Pooling and Servicing Agreement”), among the  Seller, Navistar Financial Corporation, as Servicer, and The Bank of New  York, as Master Trust Trustee (the “Master Trust Trustee”), the Series  Supplement dated as of January 28, 2000 (the “Series Supplement”), among the  Seller, the Servicer and the Master Trust Trustee and the Amended and  Restated Certificate Purchase Agreement dated as of December 27, 2004 (the “Certificate  Purchase Agreement”), among the Seller, the Conduit Purchasers, the Managing  Agents, the Administrative Agent and the Committed Purchasers named therein,  are true and correct on the date hereof. |
|   | (b)                                                                                                                                                                                                                                | The  conditions to the Incremental Funding specified in Section 2.03(b) of the  Certificate Purchase Agreement have been satisfied and/or will be satisfied  as of the applicable Incremental Funding Date.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|        |                                                                                                                                                                                                                                    |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |        |        |  |

 

38

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|            | NAVISTAR FINANCIAL  CORPORATION |
|-----------------|---------------------------------|
|            |                            |
|            |                            |
|            | By                              |   |   |
|            |                            | Authorized  Officer |   |
|            |                            |
|            |                            |
| Date of Notice: |                            |   |   |
|                 |                                 |  |  |  |  |

 

39

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EXHIBIT B

 

[Formof Investment Letter]

 

                  , 200[  ]

 

Navistar Financial Securities Corporation**[Address]**

 

Re:  Purchase of Series 2000-VFC Certificate

 

Ladies and Gentlemen:

 

This letter (the “InvestmentLetter”) is delivered by                                         (the “Purchaser”) and                                         (“                    ”),as Administrative Agent pursuant to Section 6.03 of the Amended andRestated Certificate Purchase Agreement (“Certificate Purchase Agreement”)dated as of December 27, 2004 among Navistar Financial Securities Corporation (“Seller”)and the Conduit Purchasers, Managing Agents, Administrative Agent and CommittedPurchasers named therein.  Capitalizedterms used herein without definition shall have the meanings set forth in theCertificate Purchase Agreement.  The Purchaserrepresents to the Seller as follows:

 

(i)            the Purchaser is authorized to enterinto the Certificate Purchase Agreement and to perform its obligationsthereunder and to consummate the transactions contemplated thereby;

 

(ii)           the Purchaser and AdministrativeAgent have such knowledge and experience in financial and business matters asto be capable of evaluating the merits and risks of an investment in the Series2000-VFC Certificate and the Purchaser is able to bear the economic risk ofsuch investment;

 

(iii)          the Purchaser and Administrative Agenthave reviewed the Pooling and Servicing Agreement and the Series Supplement(including the schedule and exhibits thereto) and have had the opportunity toperform due diligence with respect thereto and to ask questions of and receiveanswers from the Seller and its representatives concerning the Seller, theMaster Trust and the Series 2000-VFC Certificate;

 

(iv)          Administrative Agent is an agent onbehalf of the Purchaser and the Purchaser is not acquiring the Series 2000-VFCCertificate as an agent or otherwise for any other person.  The Purchaser is a [                                        ].  Administrative Agent is a [                                        ];

 

40

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(v)           each of the Purchaser and AdministrativeAgent is an “accredited investor” as defined in Rule 501, promulgated by theSecurities and Exchange Commission (the “Commission”) under the Securities Actof 1933, as amended.  The Purchaser andAdministrative Agent understand that the offering and sale of the Series2000-VFC Certificate have not been and will not be registered under theSecurities Act of 1933, as amended, and have not and will not be registered orqualified under any applicable “blue sky” law, and that the offering and saleof the Series 2000-VFC Certificate have not been reviewed by, passed on orsubmitted to any federal or state agency or commission, securities exchange orother regulatory body;

 

(vi)          the Purchaser, through AdministrativeAgent, is acquiring the Series 2000-VFC Certificate without a view to anydistribution, resale or other transfer thereof, except as contemplated by thefollowing sentence.  The Purchaser andAdministrative Agent will not resell or otherwise transfer the Series 2000-VFCCertificate or any portion thereof, except (A) [in accordance with Section 8.04of the Certificate Purchase Agreement] [with a letter from the buyer ortransferee thereof in substantially the form hereof] and (B) (i) pursuantto an effective registration statement under the Securities Act of 1933, asamended; (ii) in a transaction exempt from the registration requirements of theSecurities Act of 1933, as amended, and applicable state securities or “bluesky” laws; (iii) to the Seller or any affiliate of the Seller; (iv) to a personwho the Purchaser and Administrative Agent reasonably believe is a qualifiedinstitutional buyer (within the meaning thereof in Rule 144A under theSecurities Act of 1933, as amended) that is aware that the resale or othertransfer is being made in reliance upon Rule 144A; or (v) pursuant toRegulation S under the Securities Act of 1933, as amended.

 

(vii)         the Purchaser and Administrative Agentunderstand that each Series 2000-VFC Certificate will bear a legend tosubstantially the following effect:

 

THISCERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THESECURITIES ACT.  NO RESALE OR OTHERTRANSFER OF THIS CERTIFICATE MAY BE MADE EXCEPT IN COMPLIANCE WITH THE REGISTRATIONPROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS UNDER STATE BLUESKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCHPROVISIONS.  THE TRANSFER OF THISCERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING ANDSERVICING AGREEMENT AND SERIES SUPPLEMENT REFERRED TO HEREIN.

 

NEITHERTHIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED BY (A) AN EMPLOYEEBENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT SECURITYACT OF

 

41

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1974, AS AMENDED (“ERISA”))THAT IS SUBJECT TO THE PROVISIONS OF TITLE 1 OF ERISA, (B) A PLAN DESCRIBED INSECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (C) ANYENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENTIN THE ENTITY (EACH A “BENEFIT PLAN”). BY ACCEPTING AND HOLDING THIS CERTIFICATE OR ANY INTEREST HEREIN, THEHOLDER HEREOF OR ANY OWNER OF AN INTEREST HEREIN SHALL BE DEEMED TO HAVEREPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.

 

(viii)        this Investment Letter has been dulyauthorized, executed and delivered and constitutes the legal, valid and bindingobligations of the Purchaser and Administrative Agent, enforceable against thePurchaser and Administrative Agent in accordance with its terms, except as suchenforceability may be limited by receivership, conservatorship, bankruptcy,insolvency, reorganization, moratorium or similar laws affecting theenforcement of creditors’ rights generally and general principles of equity;and

 

(ix)           Each of the Purchaser andAdministrative Agent represents and warrants that neither the Purchaser norAdministrative Agent is (i) an employee benefit plan (as defined in Section3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plandescribed in Section 4975(e)(1) of the Internal Revenue Code, or (iii) anentity whose underlying assets include plan assets by reason of a plan’sinvestment in such entity.

 
|   | Very truly yours,       |   |
|--------|-------------------------|--------|
|   |                    |   |
|   |                    |   |
|   |                    | ,      |
|   | as Purchaser            |   |
|   |                    |   |
|   | By:                     |   |   |
|   |                    | Name:  |   |
|   |                    | Title: |   |
|   |                    |   |
|   |                    |   |
|   |                    | ,      |
|   | as Administrative Agent |   |
|   |                    |   |
|   |                    |   |
|   | By:                     |   |   |
|   |                    | Name:  |   |
|   |                    | Title: |   |

 

42

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SCHEDULE I

 

Addressesfor Notices

 

If to:
| Seller:          | Navistar  Financial Securities Corporation |
|------------------|--------------------------------------------|
|             | 2850  West Golf Road                       |
|             | Rolling  Meadows, Illinois 60008           |
|             | Attention:  Vice President & Treasurer |
|             | cc:                                        | General  Counsel |
|             | Facsimile: (847) 734-4090                  |
|             |                                       |
| Servicer:        | Navistar  Financial Corporation            |
|             | 2850  West Golf Road                       |
|             | Rolling  Meadows, Illinois 60008           |
|             | Attention:  Vice President & Treasurer |
|             | cc:                                        | General  Counsel |
|             | Facsimile: (847) 734-4090                  |
| Conduit          |                                       |
| Purchaser:       | Kitty  Hawk Funding Corporation            |
|             |                                       |
|             |                                       |
|             | Attention:                                 |
|             | Facsimile:                                 |
|             |                                       |
| With  a copy to: |                                       |
|             |                                       |
|             | Bank  of America, National Association     |
|             | 231  South LaSalle Street                  |
|             | Chicago,  IL 60697                         |
|             | Attention:  Willem van Beek                |
|             | Facsimile:  (312) 453-3410                 |
|             |                                       |
| Administrative   |                                       |
| Agent:           | Bank  of America, National Association     |
|             | 231  South LaSalle Street                  |
|             | Chicago,  Illinois 60697                   |
|             | Attention:  Willem van Beek                |
| Facsimile:       |  (312) 453-3410                       |
|                  |                                            |  |  |

 

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| With  a copy to: |                                    |
|------------------|-----------------------------------------|
|             | Bank  of America, National Association, |
|             | as  Administrator                       |
|             | Bank  of America Corporate Center       |
|             | 10th  Floor                             |
|             | Charlotte,  North Carolina 28255        |
|             | Attention:                              | Banc  of America Securities, LLC |
|             |                                    | Global  Asset Backed Securitization Group; |
|             |                                    | Treasury  Management |
|             | Telephone:  (704) 386-0159              |
|             | Facsimile:  (704) 387-2828              |

 

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| Conduit        |                                     |
|----------------|------------------------------------------|
| Purchaser:     | Liberty  Street Funding Corp.            |
|           | c/o  Global Securitization Services, LLC |
|           | 114  West 47th Street, Suite 1715        |
|           | New  York, NY 10036                      |
|           | Attention:  Andrew L. Stidd              |
|           | Telephone:  (212) 302-5151               |
|           | Telecopy:  (212) 302-8767                |
|           |                                     |
|           | With  a copy to                          |
|           |                                     |
|           | The  Bank of Nova Scotia                 |
|           | One  Liberty Plaza                       |
|           | New  York, NY 10006                      |
|           | Attention:  Richard Taiano               |
|           | Telephone:  (212) 225-5070               |
|           | Telecopy:  (212) 225-5090                |
|           | Managing Agent                           |
|           |                                     |
| and  Committed |                                     |
| Purchaser:     | The  Bank of Nova Scotia                 |
|           | One  Liberty Plaza                       |
|           | New  York, NY 10006                      |
|           | Telephone:  (212) 225-5070               |
|           | Telecopy:  (212) 225-5090                |
|           |                                     |
|           | Attention:  Richard Taiano               |

 

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