PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 1, 2000
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TABLE OF CONTENTS
ARTICLE IDEFINITIONS.........................................................1
SECTION 1.01. Definitions..........................................1
ARTICLE IIPURCHASE AND SALE OF RECEIVABLES...................................2
SECTION 2.01. Purchase and Sale of Receivables.....................2
SECTION 2.02. Purchase Price.......................................2
SECTION 2.03. The Closing..........................................2
ARTICLE IIIREPRESENTATIONS AND WARRANTIES....................................3
SECTION 3.01. Representations and Warranties as to Receivables.....3
SECTION 3.02. Additional Representations and Warranties of NFC.....7
SECTION 3.03. Representations and Warranties of NFRRC..............8
ARTICLE IVCONDITIONS.........................................................9
SECTION 4.01. Conditions to Obligation of NFRRC....................9
SECTION 4.02. Conditions To Obligation of NFC.....................10
ARTICLE VADDITIONAL AGREEMENTS..............................................10
SECTION 5.01. Conflicts With Further Transfer and Servicing
Agreements..........................................10
SECTION 5.02. Protection of Title.................................10
SECTION 5.03. Other Liens or Interests............................11
SECTION 5.04. Repurchase Events...................................11
SECTION 5.05. Indemnification.....................................12
SECTION 5.06. Further Assignments.................................12
SECTION 5.07. Pre-Closing Collections.............................12
SECTION 5.08. Limitation on Transfer of International Purchase
Obligations.........................................12
SECTION 5.09. Sale Treatment......................................12
ARTICLE VIMISCELLANEOUS PROVISIONS..........................................12
SECTION 6.01. Amendment...........................................12
SECTION 6.02. Survival............................................12
SECTION 6.03. Notices.............................................13
SECTION 6.04. Governing Law.......................................13
SECTION 6.05. Waivers.............................................13
SECTION 6.06. Costs and Expenses..................................13
SECTION 6.07. Confidential Information............................13
SECTION 6.08. Headings............................................13
SECTION 6.09. Counterparts........................................13
SECTION 6.10. Severability of Provisions..........................13
SECTION 6.11. Further Assurances..................................13
SECTION 6.12. No Third-Party Beneficiaries........................14
SECTION 6.13. Merger and Integration..............................14
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EXHIBITS
Exhibit A - Form of PA Assignment
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PURCHASE AGREEMENT, dated as of November 1, 2000, between NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION, a Delaware corporation ("NFRRC"),
and NAVISTAR FINANCIAL CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase on the date hereof a portfolio of
commercial retail loans evidenced by notes secured by new and used medium and
heavy duty trucks, buses and trailers (collectively, the "Retail Notes"),
together with related rights owned by NFC;
WHEREAS, NFC is willing to sell such Retail Notes and related rights to
NFRRC;
WHEREAS, NFRRC may wish to sell or otherwise transfer such Retail Notes
and related rights, or interests therein, to a trust, corporation,
partnership or other entity (any such transferee being the "Subsequent
Transferee"); and
WHEREAS, the Subsequent Transferee may issue debentures, notes,
participations, certificates of beneficial interest, partnership interests or
other interests or securities (collectively, any such issued interests or
securities being "Securities") to fund its acquisition of such Retail Notes
and related rights.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions. Capitalized terms used but not
otherwise defined in this Agreement shall have the respective meanings
assigned them in Part I of Appendix A to the Pooling and Servicing Agreement
of even date herewith by and among Chase Manhattan Bank USA, National
Association, acting as Owner Trustee of the Navistar Financial 2000-B Owner
Trust, NFRRC and Navistar Financial Corporation, as Servicer, as it may be
amended, supplemented or modified from time to time. All references herein
to "the Agreement" or "this Agreement" are to this Purchase Agreement as it
may be amended, supplemented or modified from time to time, the exhibits
hereto and the capitalized terms used herein which are defined in such
Appendix A, and all references herein to Articles, Sections and subsections
are to Articles, Sections or subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
shall be applicable to this Agreement.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION II.1. Purchase and Sale of Receivables. Subject to the
satisfaction of the conditions specified in Article IV, NFC agrees to sell,
transfer, assign and otherwise convey to NFRRC, without recourse, pursuant to
a written assignment substantially in the form of Exhibit A (the "PA
Assignment"), and NFRRC agrees to purchase on the Closing Date, all right,
title and interest of NFC in, to and under:
(a) the Retail Notes, secured by one or more Financed Vehicles, that
are identified in a schedule to the PA Assignment delivered to NFRRC on the
Closing Date (the "Designated Receivables") and all monies paid thereon
(including Liquidation Proceeds) and due thereunder on and after the Cutoff
Date;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Designated Receivables and, to the extent permitted
by law, any accessions thereto which are financed by NFC;
(c) the benefits of any lease assignments with respect to the related
Financed Vehicles;
(d) any proceeds from any Insurance Policies with respect to the
Designated Receivables;
(e) any proceeds from Dealer Liability with respect to the Designated
Receivables, proceeds from any International Purchase Obligations with
respect to the Designated Receivables (subject to the limitations set forth
in Section 5.08 hereof) and proceeds from any Guaranties of Designated
Receivables; and
(f) any proceeds of the property described in clauses (a), (b) and
(c) above (the property described in clauses (b) through (f) hereof are
referred to as the "Related Security").
SECTION II.2. Purchase Price. In consideration for the purchase of
the Designated Receivables and the Related Security, NFRRC shall, on the
Closing Date, pay to NFC an amount equal to the Initial Aggregate Receivables
Balance (the "Purchase Price") and NFC shall execute and deliver to NFRRC the
PA Assignment. On the Closing Date, a portion of the Purchase Price equal to
approximately $726,782,593.60 shall be paid to NFC in immediately available
funds, and the balance of the Purchase Price ($37,927,503.93) shall be
recorded as an advance from NFC to NFRRC.
SECTION II.3. The Closing. The sale and purchase of the Designated
Receivables (the "Closing"), shall take place at such a place, on a date and
at a time mutually agreeable to NFC and NFRRC, and may occur simultaneously
with the closing of any related transactions contemplated by the Further
Transfer and Servicing Agreements.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1. Representations and Warranties as to Receivables.
NFC makes the following representations and warranties as to the Designated
Receivables on which NFRRC relies in accepting such Receivables. Such
representations and warranties speak as of the Closing Date, and as of the
date of the transfer of such Designated Receivables under the Further
Transfer and Servicing Agreements, and shall survive the sale, transfer and
assignment of such Designated Receivables to NFRRC and the subsequent
assignment and transfer thereof pursuant to the Further Transfer and
Servicing Agreements:
(a) Characteristics of Receivables. Each Designated Receivable:
(i) was originated by NFC to finance a retail purchase by a
retail customer or a refinancing of a Financed Vehicle or Financed
Vehicles by a retail customer and was fully and properly executed by
the parties thereto;
(ii) has created or shall create a valid, binding and
enforceable first priority security interest in favor of NFC in each
Financed Vehicle related thereto, which security interest will be
validly assigned by NFC to NFRRC and will be assignable by NFRRC to a
subsequent purchaser;
(iii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for
realization against the collateral of the benefits of the security;
(iv) shall yield interest at the Annual Percentage Rate; and
(v) comes from one of the following categories, which differ in
their provisions for the payment of principal and interest: Equal
Payment Fully Amortizing Receivables, Equal Payment Skip Receivables,
Equal Payment Balloon Receivables, Level Principal Fully Amortizing
Receivables, Level Principal Skip Receivables, Level Principal Balloon
Receivables, or Other Receivables. "Equal Payment Fully Amortizing
Receivables" are Receivables that provide for equal monthly payments
that fully amortize the amount financed over its original term to
maturity. "Equal Payment Skip Receivables" are Receivables that
provide for equal monthly payments in eleven or fewer months of each
twelve-month period that fully amortize the amount financed over its
original term to maturity. "Equal Payment Balloon Receivables" are
Receivables that provide for equal monthly payments except that a
larger payment becomes due on the final maturity date for such
Receivables. "Level Principal Fully Amortizing Receivables" are
Receivables that provide for monthly payments consisting of level
principal amounts together with accrued and unpaid interest on the
unpaid Receivable Balances. "Level Principal Skip Receivables" are
Receivables that provide for monthly payments in eleven or fewer months
of each twelve-month period consisting of level principal amounts
together with accrued and unpaid interest on the unpaid Receivable
Balances. "Level Principal Balloon Receivables" are Receivables that
provide for monthly payments consisting of level principal amounts
together with accrued and unpaid interest on the unpaid Receivable
Balances, except that a larger principal payment becomes due on the
final maturity date for such Receivables. "Other Receivables" are
Receivables not described above, including Receivables that provide for
level monthly payments in eleven or fewer months of each twelve-month
period that amortize a portion of the amount financed over its original
term to maturity with a larger payment that becomes due on the final
maturity date for such Receivables.
(b) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material respects;
(c) Compliance With Law. All requirements of applicable federal,
state and local laws, and regulations thereunder, including the Equal Credit
Opportunity Act, the Federal Reserve Board's Regulation "B", the Soldiers'
and Sailors' Civil Relief Act of 1940, and any applicable bulk sales or bulk
transfer law and other equal credit opportunity and disclosure laws, in
respect of any of the Designated Receivables, have been complied with in all
material respects, and each such Designated Receivable and the sale of the
Financed Vehicle or Financed Vehicles evidenced thereby complied at the time
it was originated or made and now complies in all material respects with all
legal requirements of the jurisdiction in which it was originated or made;
(d) Binding Obligation. Each Designated Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor thereon, enforceable against the Obligor by the holder thereof in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
the enforcement of creditors' rights in general and by equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(e) Security Interest in Financed Vehicle. Immediately prior to the
sale, transfer and assignment thereof pursuant hereto, each Designated
Receivable was secured by a validly perfected first priority security
interest in the related Financed Vehicle or, in the event any such Receivable
was secured by more than one Financed Vehicle, in each related Financed
Vehicle, each in favor of NFC as secured party, or all necessary and
appropriate action had been commenced that will result, within 100 days
following the Cutoff Date, in the valid perfection of a first priority
security interest in each related Financed Vehicle in favor of NFC as secured
party in each case (except for first priority security interests which may
exist in any accessions not financed by NFC);
(f) Receivables In Force. No Designated Receivable has been
satisfied, subordinated or rescinded, and no Financed Vehicle securing any
Designated Receivable has been released from the Lien of the related
Receivable in whole or in part;
(g) No Waiver. Since the Cutoff Date, no provision of any Designated
Receivable has been waived, altered or modified in any respect;
(h) No Amendments. Since the Cutoff Date, no Designated Receivable
has been amended or otherwise modified such that the total number of the
Obligor's Scheduled Payments is increased or the Initial Receivable Balance
thereof is increased;
(i) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Designated
Receivable;
(j) No Liens. There are, to NFC's knowledge, no Liens or claims that
have been filed for work, labor or materials affecting any Financed Vehicle
securing any Designated Receivable that are or may be prior to, or equal or
coordinate with, the security interest in each Financed Vehicle granted by
the Designated Receivable (except for Liens or claims which may exist in any
accessions to the Financed Vehicles not financed by NFC);
(k) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Designated Receivable,
and no event has occurred and is continuing that with notice or the lapse of
time would constitute a default, breach, violation or event permitting
acceleration under the terms of any Designated Receivable, and NFC has not
waived any of the foregoing, in each case except for payments on any
Designated Receivables which are not more than 60 days past due (measured
from the date of any Scheduled Payment) as of the Cutoff Date;
(l) Insurance. Each Obligor on a Designated Receivable is required
to maintain a physical damage insurance policy for each Financed Vehicle of
the type that NFC requires in accordance with its customary underwriting
standards for the purchase of medium and heavy duty truck, bus and trailer
receivables, unless NFC has in accordance with its customary procedures
permitted an Obligor to self-insure such Financed Vehicle;
(m) Good Title. No Designated Receivable has been sold, transferred,
assigned or pledged by NFC to any Person other than NFRRC; immediately prior
to the conveyance of any Designated Receivables pursuant to this Agreement,
NFC had good and marketable title thereto, free of any Lien (except for any
Lien which may exist in accessions to the Financed Vehicles not financed by
NFC); and, upon execution and delivery of this Agreement and the PA
Assignment by NFC, and satisfaction of the conditions set forth in Section
4.02 hereof relating to such Designated Receivables, NFRRC shall have all of
the right, title and interest of NFC in and to the Designated Receivables and
the Related Security, free of any Lien (except for any Lien which may exist
in accessions to the Financed Vehicles not financed by NFC);
(n) Lawful Assignment. No Designated Receivable was originated in,
or is subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such Designated Receivable
under this Agreement or any Further Transfer and Servicing Agreements;
(o) All Filings Made. All filings necessary under the UCC in any
jurisdiction to give NFRRC a first priority perfected security or ownership
interest in the Designated Receivables and the Related Security (to the
extent it constitutes Code Collateral) shall have been made, and the
Designated Receivables constitute Code Collateral;
(p) One Original. There is only one original executed copy of each
Designated Receivable;
(q) No Documents or Instruments. No Designated Receivable, or
constituent part thereof, constitutes a "negotiable instrument" or
"negotiable document of title" (as such terms are used in the UCC);
(r) Maturity of Receivables. Each Designated Receivable has an
original term to maturity of not less than 12 months and not greater than 84
months and, as of the Cutoff Date, had a remaining term to maturity of not
less than 12 months and not greater than 72 months;
(s) Annual Percentage Rate. The Annual Percentage Rate of each
Designated Receivable is not less than 6.50%;
(t) Scheduled Payments; Delinquency. As of the Cutoff Date, each
Designated Receivable had a first scheduled payment that was due on or before
October 31, 2000; as of the Cutoff Date, no Designated Receivable had a
payment that was more than 60 days past due; as of the Closing Date, no
Designated Receivable had a final scheduled payment that is due later than
September 30, 2006.
(u) Vehicles. Each Financed Vehicle to which a Designated Receivable
relates was a new or used medium or heavy duty truck, bus or trailer at the
time the related Obligor executed the Retail Note;
(v) Origin. Each Designated Receivable was originated in the United
States;
(w) Beginning Receivable Balance. The Initial Receivable Balance of
each Designated Receivable shall be $1,000 or more;
(x) Concentration. The aggregate Initial Receivables Balance of all
Receivables from a single Obligor shall not be more than 2.00% of the Initial
Aggregate Receivables Balance;
(y) Selection Criteria. The Designated Receivables were selected on
a random basis from all Retail Notes satisfying the selection criteria
described herein, and no selection procedures believed to be adverse to NFRRC
or to holders of the Securities issued under the Further Transfer and
Servicing Agreements were utilized in selecting the Designated Receivables
from those Retail Notes of NFC and Truck Retail Instalment Paper Corp., its
wholly owned subsidiary, (all of which will be sold to NFC on the Closing
Date), which meet the selection criteria under this Agreement; and
(z) No Government Contracts. No Obligor under any of the Designated
Receivables is a governmental authority of the United States or any state or
political subdivision thereof.
SECTION III.2. Additional Representations and Warranties of NFC.
NFC hereby represents and warrants to NFRRC as of the date hereof and as of
the Closing Date under the Further Transfer and Servicing Agreements, in its
capacity as the seller of the Receivables hereunder, that:
(a) Organization and Good Standing. NFC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business
is presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Receivables;
(b) Due Qualification. NFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires or shall require such
qualification;
(c) Power and Authority. NFC has the power and authority to execute
and deliver this Agreement and to carry out its terms; NFC has full power and
authority to sell and assign the Designated Receivables and the Related
Security to NFRRC, has duly authorized such sale and assignment to NFRRC by
all necessary corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by NFC by all necessary corporate
action;
(d) Valid Sale; Binding Obligation. This Agreement, together with
the PA Assignment, when duly executed and delivered, shall (upon satisfaction
of the conditions set forth in Section 4.02(b) hereof) constitute a valid
sale, transfer and assignment of the Designated Receivables and Related
Security, enforceable against creditors of and purchasers from NFC; and this
Agreement, together with the PA Assignment, when duly executed and delivered,
shall (upon satisfaction of the conditions set forth in Section 4.02(b)
hereof) constitute a legal, valid and binding obligation of NFC enforceable
against NFC in accordance with its respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the PA Assignment, and the fulfillment of the terms of
this Agreement and the PA Assignment shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
by-laws of NFC, or any indenture, agreement, mortgage, deed of trust or other
instrument to which NFC is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument (other than this Agreement, the PA Assignment or any Further
Transfer and Servicing Agreement), or violate any law or, to NFC's knowledge,
any order, rule or regulation applicable to NFC of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NFC or any of its properties;
(f) No Proceedings. There are no proceedings or, to NFC's knowledge,
investigations pending or, to NFC's knowledge, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over NFC or its properties (i) asserting
the invalidity of this Agreement or the PA Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or the PA Assignment, or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by NFC of its
obligations under, or the validity or enforceability of, this Agreement or
the PA Assignment; and
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by NFC of this
Agreement or the PA Assignment or the consummation by NFC of the transactions
contemplated hereby or thereby except as expressly contemplated herein or
therein.
SECTION III.3. Representations and Warranties of NFRRC. NFRRC
hereby represents and warrants to NFC as of the date hereof:
(a) Organization and Good Standing. NFRRC has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business
is presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Designated Receivables;
(b) Due Qualification. NFRRC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualification;
(c) Power and Authority. NFRRC has the power and authority to
execute and deliver this Agreement and to carry out its terms and the
execution, delivery and performance of this Agreement have been duly
authorized by NFRRC by all necessary corporate action;
(d) No Violation. The consummation by NFRRC of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement shall not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of NFRRC, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
NFRRC is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than this Agreement,
the PA Assignment or any Further Transfer and Servicing Agreement), or
violate any law or, to NFRRC's knowledge, any order, rule or regulation
applicable to NFRRC of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over NFRRC or any of its properties;
(e) No Proceedings. There are no proceedings or, to NFRRC's
knowledge, investigations pending or, to NFRRC's knowledge, threatened,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over NFRRC or its properties
(i) asserting the invalidity of this Agreement or the PA Assignment, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by NFRRC of its obligations
under, or the validity or enforceability of, this Agreement or the PA
Assignment;
(f) Binding Obligation. This Agreement shall constitute a legal,
valid and binding obligation of NFRRC enforceable against NFRRC in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law; and
(g) No Consent. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by NFRRC of this
Agreement, or the consummation by NFRRC of the transactions contemplated
hereby except as expressly contemplated herein.
ARTICLE IV
CONDITIONS
SECTION IV.1. Conditions to Obligation of NFRRC. The obligation of
NFRRC to purchase Designated Receivables and the Related Security hereunder
is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of NFC in Section 3.01 regarding the Designated Receivables and
the Related Security, and the representations and warranties of NFC in
Section 3.02, shall be true and correct as of the Closing Date, and NFC shall
have performed all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) No Repurchase Event. No Repurchase Event (as defined in Section
5.04 below) shall have occurred on or prior to the Closing Date with respect
to any of the Designated Receivables.
(c) Computer Files Marked. NFC shall, at its own expense, on or
prior to the Closing Date, (i) indicate in its computer files created in
connection with the Designated Receivables that the Designated Receivables
have been sold to NFRRC pursuant to this Agreement and the PA Assignment and
(ii) deliver to NFRRC the Schedule of Receivables certified by an officer of
NFC to be true, correct and complete.
(d) Documents to be Delivered By NFC.
(i) The PA Assignment. On the Closing Date, NFC shall execute
and deliver to NFRRC the PA Assignment.
(ii) Evidence of UCC Filing. On or prior to the Closing Date,
NFC shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by NFC as seller or debtor, naming NFRRC as purchaser or
secured party, naming the Designated Receivables and Related Security
as collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect under the
UCC the sale, transfer, assignment and conveyance of the Designated
Receivables and the Related Security (to the extent it constitutes Code
Collateral) to NFRRC. NFC shall deliver a file-stamped copy, or other
evidence satisfactory to NFRRC of such filing, to NFRRC on or prior to
the Closing Date.
(iii) Other Documents. On the Closing Date, NFC shall provide
such other documents as NFRRC may reasonably request.
(e) Other Transactions. The related transactions contemplated by the
Further Transfer and Servicing Agreements shall be consummated on or prior to
the Closing Date (and all conditions precedent thereto shall be satisfied) to
the extent that such transactions are intended to be substantially
contemporaneous with the transactions hereunder.
SECTION IV.2. Conditions To Obligation of NFC. The obligation of
NFC to sell the Designated Receivables to NFRRC hereunder on the Closing Date
is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of NFRRC hereunder shall be true and correct as of the Closing
Date, and NFRRC shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Purchase Price. On the Closing Date, NFRRC shall pay to NFC the
Purchase Price, payable on such date as provided in Section 2.02 of this
Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
NFC agrees with NFRRC as follows:
SECTION V.1. Conflicts With Further Transfer and Servicing
Agreements. To the extent that any provision of Sections 5.02 through 5.04
of this Agreement conflicts with any provision of the Further Transfer and
Servicing Agreements, the Further Transfer and Servicing Agreements shall
govern.
SECTION V.2. Protection of Title.
(a) Filings. NFC shall execute and file such financing statements
and cause to be executed and filed such continuation and other statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of NFRRC under this Agreement in
the Designated Receivables and the Related Security and in the proceeds
thereof. NFC shall deliver (or cause to be delivered) to NFRRC file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon as available following such filing.
(b) Name Change. NFC shall not change its name, identity or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by NFC in accordance with
Section 5.02(a) seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given NFRRC at least 60 days prior written
notice thereof and shall file such financing statements or amendments as may
be necessary to continue the perfection of NFRRC's security interest in the
Designated Receivables and the Related Security.
(c) Executive Office; Maintenance of Offices. NFC shall give NFRRC
at least 60 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement. NFC shall at all times maintain each office from which it
services Designated Receivables and its principal executive office within the
United States of America.
SECTION V.3. Other Liens or Interests. Except for the conveyances
hereunder and as contemplated by the Further Transfer and Servicing
Agreements, NFC shall not sell, pledge, assign or transfer the Designated
Receivables and the Related Security to any other Person, or grant, create,
incur, assume or suffer to exist any Lien (except any Lien which may exist in
accessions to the Financed Vehicles not financed by NFC) on any interest
therein, and NFC shall defend the right, title and interest of NFRRC in, to
and under the Designated Receivables and Related Security against all claims
of third parties claiming through or under NFC.
SECTION V.4. Repurchase Events. By its execution of the Further
Transfer and Servicing Agreements to which it is a party, NFC shall be deemed
to acknowledge the assignment by NFRRC of such of its right, title and
interest in, to and under this Agreement to the Subsequent Transferee as
shall be provided in the Further Transfer and Servicing Agreements. NFC
hereby covenants and agrees with NFRRC for the benefit of NFRRC and the
Interested Parties, that in the event of a breach of any of NFC's
representations and warranties contained in Section 3.01 hereof with respect
to any Designated Receivable (a "Repurchase Event") as of the second
Accounting Date following NFC's discovery or its receipt of notice of breach
(or, at NFC's election, the first Accounting Date following such discovery),
unless such breach shall have been cured in all material respects, NFC will
repurchase such Designated Receivable from the Subsequent Transferee (if the
Subsequent Transferee is then the Owner of such Designated Receivable) on the
related Distribution Date for an amount equal to the Warranty Payment,
without further notice from NFRRC hereunder. Upon the occurrence of a
Repurchase Event with respect to a Designated Receivable for which NFRRC is
the Owner, NFC agrees to repurchase such Designated Receivable from NFRRC for
an amount and upon the same terms as NFC would be obligated to repurchase
such Designated Receivable from the Subsequent Transferee if the Subsequent
Transferee was then the Owner thereof, and upon payment of such amount, NFC
shall have such rights with respect to such Designated Receivable as if NFC
had purchased such Designated Receivable from the Subsequent Transferee as
the Owner thereof. It is understood and agreed that the obligation of NFC to
repurchase any Designated Receivable as to which a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against NFC for such breach available to NFRRC or any Interested Party.
SECTION V.5. Indemnification. NFC shall indemnify NFRRC for any
liability as a result of the failure of a Designated Receivable to be
originated in compliance with all requirements of law and for any breach of
any of its representations and warranties contained herein. This indemnity
obligation shall be in addition to any obligation that NFC may otherwise have.
SECTION V.6. Further Assignments. NFC acknowledges that NFRRC
shall, pursuant to the Further Transfer and Servicing Agreements, sell
Designated Receivables to the Subsequent Transferee and assign its rights
hereunder to the Subsequent Transferee, subject to the terms and conditions
of the Further Transfer and Servicing Agreements, and that the Subsequent
Transferee may in turn further pledge, assign or transfer its rights in
Designated Receivables and this Agreement. NFC further acknowledges that
NFRRC may assign its rights under the Custodian Agreement to the Subsequent
Transferee.
SECTION V.7. Pre-Closing Collections. Within two Business Days
after the Closing Date, NFC shall transfer to the account or accounts
designated by NFRRC (or by the Subsequent Transferee under the Further
Transfer and Servicing Agreements) all collections (from whatever source) on
or with respect to the Designated Receivables and the Related Security.
SECTION V.8. Limitation on Transfer of International Purchase
Obligations. NFRRC acknowledges and agrees that the rights pursuant to the
International Purchase Obligations are personal to NFC, and only the proceeds
of such rights have been assigned to NFRRC. NFRRC is not and is not intended
to be a third-party beneficiary of such rights and, accordingly, such rights
will not be exercisable by, enforceable by or for the benefit of, or
preserved for the benefit of, NFRRC.
SECTION V.9. Sale Treatment. NFC intends to treat the transfer
and assignment described herein as a sale for accounting and tax purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION VI.1. Amendment. This Agreement may be amended from time
to time (subject to any expressly applicable amendment provision of the
Further Transfer and Servicing Agreements) by a written amendment duly
executed and delivered by NFC and NFRRC. Prior to the execution of any such
amendment, NFC shall furnish written notification of the substance of such
amendment to each of the Rating Agencies.
SECTION VI.2. Survival. The representations, warranties and
covenants of NFC set forth in Article III and Article V of this Agreement
shall remain in full force and effect and shall survive the Closing and the
closing under the Further Transfer and Servicing Agreements.
SECTION VI.3. Notices. All demands, notices and communications
under this Agreement shall be delivered as specified in Appendix B to the
Pooling and Servicing Agreement.
SECTION VI.4. Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement and the PA
Assignment shall be governed by and construed and enforced in accordance with
the internal laws of the State of Illinois, without giving effect to any
choice of law or conflict provision or rule (whether of the State of Illinois
or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of Illinois.
SECTION VI.5. Waivers. No failure or delay on the part of NFRRC in
exercising any power, right or remedy under this Agreement or the PA
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION VI.6. Costs and Expenses. NFC agrees to pay all reasonable
out-of-pocket costs and expenses of NFRRC, including fees and expenses of
counsel, in connection with the perfection as against third parties of
NFRRC's right, title and interest in, to and under the Designated Receivables
and the enforcement of any obligation of NFC hereunder.
SECTION VI.7. Confidential Information. NFRRC agrees that it shall
neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of NFRRC's rights
hereunder, under the Designated Receivables, under the Further Transfer and
Servicing Agreements or as required by law.
SECTION VI.8. Headings. The various headings in this Agreement are
for purposes of reference only and shall not affect the meaning or
interpretation of any provision of this Agreement.
SECTION VI.9. Counterparts. This Agreement may be executed in two
or more counterparts, and by different parties on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
SECTION VI.10. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent
permitted, and if not so permitted, shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of any Securities or rights of any Owner.
SECTION VI.11. Further Assurances. NFC and NFRRC agree to do and
perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other more fully
to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Designated
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION VI.12. No Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the Owners
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION VI.13. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived, or supplemented except as
provided herein.
* * * * *
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the
date and year first above written.
NAVISTAR FINANCIAL CORPORATION
By:/s/R. Xxxxx Xxxx
______________________________________
R. Xxxxx Xxxx
Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By:/s/R. Xxxxx Xxxx
______________________________________
R. Xxxxx Xxxx
Vice President and Treasurer
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EXHIBIT A
FORM OF PA ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as
of November 1, 2000 (the "Purchase Agreement"), between Navistar Financial
Corporation, a Delaware corporation ("NFC"), and Navistar Financial Retail
Receivables Corporation, a Delaware corporation ("NFRRC"), NFC does hereby
sell, assign, transfer and otherwise convey unto NFRRC, without recourse, all
right, title and interest of NFC in, to and under (i) the Receivables listed
on Schedule I hereto, (having an Initial Aggregate Receivables Balance of
$764,710,097.53) (the "Designated Receivables") and all monies paid thereon
(including Liquidation Proceeds) and due thereunder on and after the Cutoff
Date; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Designated Receivables and, to the extent permitted
by law, any accessions thereto which are financed by NFC; (iii) the benefits
of any lease assignments with respect to the Financed Vehicles; (iv) any
proceeds from any Insurance Policies with respect to the Designated
Receivables; (v) any proceeds from Dealer Liability with respect to the
Designated Receivables, proceeds from any International Purchase Obligations
with respect to the Designated Receivables (subject to the limitations set
forth in Section 5.08 of the Purchase Agreement) and proceeds from any
Guaranties of Designated Receivables; and (vi) any proceeds of the property
described in clauses (i), (ii) and (iii) above.
The foregoing sale does not constitute and is not intended to result in
any assumption by NFRRC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Designated
Receivables, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
This PA Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned has caused this PA Assignment to be
duly executed as of November 1, 2000.
NAVISTAR FINANCIAL CORPORATION
By:/s/R. Xxxxx Xxxx
______________________________________
R. Xxxxx Xxxx
Vice President and Treasurer
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SCHEDULE OF DESIGNATED RECEIVABLES
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