Exhibit 99.1
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 1, 2001
TABLE OF CONTENTS
ARTICLE IDEFINITIONS .......................................................................... - 1 -
SECTION 1.01. Definitions ........................................................ - 1 -
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ARTICLE IIPURCHASE AND SALE OF RECEIVABLES .................................................... - 2 -
SECTION 2.01. Purchase and Sale of Receivables ................................... - 2 -
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SECTION 2.02. Purchase Price ..................................................... - 2 -
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SECTION 2.03. The Closings ....................................................... - 3 -
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SECTION 2.04. Covenant Regarding Subsequent Receivables .......................... - 3 -
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ARTICLE IIIREPRESENTATIONS AND WARRANTIES ..................................................... - 3 -
SECTION 3.01. Representations and Warranties as to Receivables ................... - 3 -
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SECTION 3.02. Additional Representations and Warranties of NFC ................... - 7 -
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SECTION 3.03. Representations and Warranties of NFRRC ............................ - 8 -
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ARTICLE IVCONDITIONS .......................................................................... - 9 -
SECTION 4.01. Conditions to Obligation of NFRRC .................................. - 9 -
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SECTION 4.02. Conditions To Obligation of NFC ....................................- 10 -
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ARTICLE VADDITIONAL AGREEMENTS ................................................................- 11 -
SECTION 5.01. Conflicts With Further Transfer and Servicing Agreements ...........- 11 -
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SECTION 5.02. Protection of Title ................................................- 11 -
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SECTION 5.03. Other Liens or Interests ...........................................- 11 -
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SECTION 5.04. Repurchase Events ..................................................- 12 -
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SECTION 5.05. Indemnification ....................................................- 12 -
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SECTION 5.06. Further Assignments ................................................- 12 -
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SECTION 5.07. Pre-Closing Collections ............................................- 12 -
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SECTION 5.08. Limitation on Transfer of International Purchase Obligations .......- 13 -
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SECTION 5.09. Sale Treatment .....................................................- 13 -
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ARTICLE VIMISCELLANEOUS PROVISIONS ............................................................- 13 -
SECTION 6.01. Amendment ..........................................................- 13 -
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SECTION 6.02. Survival ...........................................................- 13 -
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SECTION 6.03. Notices ............................................................- 13 -
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SECTION 6.04. Governing Law ......................................................- 13 -
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SECTION 6.05. Waivers ............................................................- 13 -
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SECTION 6.06. Costs and Expenses .................................................- 13 -
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SECTION 6.07. Confidential Information ...........................................- 14 -
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SECTION 6.08. Headings ...........................................................- 14 -
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SECTION 6.09. Counterparts .......................................................- 14 -
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SECTION 6.10. Severability of Provisions .........................................- 14 -
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SECTION 6.11. Further Assurances .................................................- 14 -
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SECTION 6.12. No Third-Party Beneficiaries .......................................- 14 -
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SECTION 6.13. Merger and Integration .............................................- 14 -
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EXHIBITS
Exhibit A - Form of Initial PA Assignment
Exhibit B - Form of Subsequent Transfer PA Assignment
APPENDIX A
Additional Representations and Warranties
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PURCHASE AGREEMENT, dated as of November 1, 2001, 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 and from time to
time during the Funding Period 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 1.1. Definitions. Capitalized terms used but not otherwise
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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
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herewith by and among Chase Manhattan Bank USA, National Association, acting as
Owner Trustee of the Navistar Financial 2001-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
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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.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables. Subject to the
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satisfaction of the conditions specified in Article IV, NFC agrees to sell,
transfer, assign and otherwise convey to NFRRC, without recourse, pursuant to a
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written assignment substantially in the form of Exhibit A (the "Initial PA
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Assignment"), and NFRRC agrees to purchase on the Closing Date and, pursuant to
an assignment substantially in the form of Exhibit B (each, a "Subsequent
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Transfer PA Assignment" and, together with the Initial PA Assignment, each a "PA
Assignment") up to the Available Purchase Amount, on each Subsequent Transfer
Date (each, a "Purchase 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 such
Purchase Date (the "Designated Receivables") and all monies paid thereon
(including Liquidation Proceeds) and due thereunder on and after the applicable
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 2.2. Purchase Price. In consideration for the purchase of any
Designated Receivables and the Related Security, NFRRC shall, on the related
Purchase Date, pay to NFC an amount equal to the aggregate Starting Receivables
Balance for such Designated Receivables (the "Purchase Price") and NFC shall
execute and deliver to NFRRC a PA Assignment with respect to such Designated
Receivables. On the Closing Date, a portion of the $292,329,093.98 Purchase
Price payable on such date equal to $275,885,128.40 shall be paid to NFC in
immediately available funds, and the balance of the Purchase Price
($16,443,965.58) shall be recorded as an advance from NFC to NFRRC. On each
subsequent Purchase Date, a portion of the Purchase Price payable on such date
equal to the amount received by NFRRC pursuant to Section 5.02(a) of the Pooling
and Servicing Agreement shall be paid to NFC in immediately available funds, and
the balance of the Purchase Price payable on such date shall be recorded as an
advance from NFC to NFRRC.
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SECTION 2.3. The Closings. Each sale and purchase of the Designated
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Receivables (each, a "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.
SECTION 2.4. Covenant Regarding Subsequent Receivables. NFC
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covenants to deliver and sell to NFRRC pursuant to Section 2.01 on or prior to
the end of the Funding Period Subsequent Receivables with an aggregate Starting
Receivables Balance equal to $207,670,906.02. If on the Distribution Date on
which the Funding Period ends (or, if the Funding Period does not end on a
Distribution Date, the first Distribution Date following the end of the Funding
Period), the Pre-Funded Amount is equal to or greater than $100,000, NFC shall
be obligated to pay to NFRRC an amount equal to the Noteholders' Prepayment
Premium with respect to each class of Notes on the Transfer Date immediately
preceding the Distribution Date on which the Funding Period ends (or, if the
Funding Period does not end on a Distribution Date, on the first Distribution
Date following the end of the Funding Period); provided, however, that the
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foregoing shall be the sole remedy of NFRRC, the Owner Trustee, the Indenture
Trustee or the Noteholders with respect to a failure of NFC to comply with this
covenant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties as to Receivables. NFC
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makes the following representations and warranties and the additional
representations and warranties set forth in Appendix A hereto, as to the
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Designated Receivables on which NFRRC relies in accepting such Receivables. Such
representations and warranties speak as of the Purchase Date for such Designated
Receivables, and as of the date of the related 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:
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(i) was originated by NFC to finance a retail purchase by a
retail customer or a refinancing (for reasons other than credit
reasons) 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;
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(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
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Schedule of Receivables (as supplemented by the schedules to the related
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Subsequent Transfer PA Assignment, if applicable) relating to such Designated
Receivables is true and correct in all material respects;
(c) Compliance With Law. All requirements of applicable federal,
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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
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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;
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(e) Security Interest in Financed Vehicle. Immediately prior to the
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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 applicable 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
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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 applicable Cutoff Date, no provision of any
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Designated Receivable has been waived, altered or modified in any respect;
(h) No Amendments. Since the applicable Cutoff Date, no Designated
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Receivable has been amended or otherwise modified such that the total number of
the Obligor's Scheduled Payments is increased or the Starting Receivable Balance
thereof is increased, and prior to the applicable Cutoff Date, no Designated
Receivable has been amended or restructured for credit reasons;
(i) No Defenses. No right of rescission, setoff, counterclaim or
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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
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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
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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 applicable Cutoff Date;
(l) Insurance. Each Obligor on a Designated Receivable is required to
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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,
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assigned or pledged by NFC to any Person other than NFRRC; immediately prior to
the conveyance of any
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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 related 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
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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
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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
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Designated Receivable;
(q) No Documents or Instruments. No Designated Receivable, or
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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
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original term to maturity of not less than 12 months and not greater than 84
months and, as of the related 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
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Designated Receivable is not less than 5.00%;
(t) Scheduled Payments; Delinquency. As of the Initial Cutoff Date,
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each Designated Receivable being purchased on the Closing Date had a first
scheduled payment that was due on or before October 31, 2001; as of the
applicable Cutoff Date, each Designated Receivable being purchased during the
Funding Period had or will have a first scheduled payment that was due on or
before the last day of the Monthly Period next following the Monthly Period in
which such Cutoff Date occurs; as of the applicable Cutoff Date, no Designated
Receivable had or will have a payment that was more than 60 days past due; as of
the related Purchase Date, no Designated Receivable had or will have a final
scheduled payment that is due later than April 30, 2008.
(u) Vehicles. Each Financed Vehicle to which a Designated Receivable
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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
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States;
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(w) Beginning Receivable Balance. The Starting Receivable Balance of
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each Designated Receivable as of its applicable Cutoff Date shall be $1,000 or
more;
(x) Concentration. After giving effect to the transfer of such
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Designated Receivables to the Trust under the Further Transfer and Servicing
Agreements, (i) the aggregate Receivables Balance of all Receivables from a
single Obligor shall not be more than 2.00% of the aggregate Receivables Balance
of all Receivables in the Trust, (ii) the weighted average Annual Percentage
Rate of the Receivables in the Trust shall not be less than 8.12%, and (iii) the
weighted average remaining maturity of the Receivables in the Trust shall not be
greater than 55 months;
(y) Selection Criteria. The Designated Receivables were selected on a
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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
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Receivables is a governmental authority of the United States or any state or
political subdivision thereof.
SECTION 3.2. Additional Representations and Warranties of NFC. NFC
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hereby represents and warrants to NFRRC as of each Purchase Date and as of the
related 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
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is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Receivables;
(b) Due Qualification. NFC is duly qualified to do business as a
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foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which 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
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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
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applicable PA Assignment, when duly executed and delivered, shall (upon
satisfaction of the conditions set forth in Section 4.02(b) hereof relating to
the related Designated Receivables) constitute a valid sale, transfer
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and assignment of the such Designated Receivables and Related Security,
enforceable against creditors of and purchasers from NFC; and this Agreement,
together with the applicable PA Assignment, when duly executed and delivered,
shall (upon satisfaction of the conditions set forth in Section 4.02(b) hereof
relating to such Designated Receivables) 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
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by this Agreement and any PA Assignment, and the fulfillment of the terms of
this Agreement and any 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, any 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,
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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 any PA Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any 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 any PA Assignment; and
(g) No Consent. No permit, consent, approval or authorization of, or
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declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by NFC of this Agreement
or any PA Assignment or the consummation by NFC of the transactions contemplated
hereby or thereby except as expressly contemplated herein or therein.
SECTION 3.3. Representations and Warranties of NFRRC. NFRRC hereby
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represents and warrants to NFC as of each Purchase Date:
(a) Organization and Good Standing. NFRRC has been duly organized and
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is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Designated Receivables;
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(b) Due Qualification. NFRRC is duly qualified to do business as a foreign
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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
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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
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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, any 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,
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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 any 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 any PA Assignment;
(f) Binding Obligation. This Agreement shall constitute a legal, valid and
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binding obligation of N FRRC 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
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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 4.1. Conditions to Obligation of NFRRC. The obligation of NFRRC
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to purchase Designated Receivables and the Related Security hereunder on any
Purchase Date is subject to the satisfaction of the following conditions:
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(a) Representations and Warranties True. The representations and warranties
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of NFC in Section 3.01 regarding such Designated Receivables and the Related
Security being transferred on such Purchase Date, and the representations and
warranties of NFC in Section 3.02, shall be true and correct as of such Purchase
Date, with the same effect as if then made, and NFC shall have performed all
obligations to be performed by it hereunder on or prior to such Purchase Date.
(b) No Repurchase Event. No Repurchase Event (as defined in Section 5.04
-------------------
below) shall have occurred on or prior to such Purchase Date with respect to any
of such Designated Receivables.
(c) Computer Files Marked. NFC shall, at its own expense, on or prior to
---------------------
such Purchase Date, (i) indicate in its computer files created in connection
with such Designated Receivables that such Designated Receivables have been sold
to NFRRC pursuant to this Agreement and the related PA Assignment and (ii)
deliver to NFRRC the Schedule of Receivables certified by an officer of NFC to
-----------------------
be true, correct and complete (as supplemented by the schedules to the related
Subsequent Transfer PA Assignment).
(d) Documents to be Delivered By NFC.
--------------------------------
(i) The PA Assignment. On such Purchase Date, NFC shall execute and
-----------------
deliver to NFRRC the PA Assignment of the Designated Receivables and the
Related Security.
(ii) Evidence of UCC Filing. On or prior to such Purchase 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 such
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 such 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 such Purchase Date.
(iii) Other Documents. On such Purchase Date, NFC shall provide such
---------------
other documents as NFRRC may reasonably request.
(e) Funding Period. The Funding Period shall not have terminated.
--------------
(f) Other Transactions. The related transactions contemplated by the
------------------
Further Transfer and Servicing Agreements shall be consummated on or prior to
the related Purchase 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 4.2. Conditions To Obligation of NFC. The obligation of NFC to
-------------------------------
sell the Designated Receivables to NFRRC hereunder on any Purchase Date is
subject to the satisfaction of the following conditions:
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(a) Representations and Warranties True. The representations and warranties
-----------------------------------
of NFRRC hereunder shall be true and correct as of such Purchase Date, with the
same effect as if then made, and NFRRC shall have performed all obligations to
be performed by it hereunder on or prior to such Purchase Date.
(b) Purchase Price. On each Purchase 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 5.1. 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 5.2. 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 9-503(a) 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 5.3. 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
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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 5.4. 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 5.5. 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 5.6. 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 5.7. Pre-Closing Collections. Within two Business Days after each
-----------------------
Purchase 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 conveyed by NFC to NFRRC on such
Purchase Date pursuant to Section 2.01.
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SECTION 5.8. 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 5.9. Sale Treatment. NFC intends to treat each transfer and
--------------
assignment described herein as a sale for accounting and tax purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Amendment. (a) 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.
(b) Notwithstanding any other provision of this Agreement, if the consent
of the Swap Counterparty is required pursuant to the Swap Counterparty Rights
Agreement to amend this Agreement, any such purported amendment shall be null
and void ab initio unless the Swap Counterparty consents in writing to such
amendment.
SECTION 6.2. 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 each Purchase Date and each Closing
under the Further Transfer and Servicing Agreements.
SECTION 6.3. Notices. All demands, notices and communications under this
-------
Agreement shall be delivered as specified in Appendix B to the Pooling and
----------
Servicing Agreement.
SECTION 6.4. Governing Law. All questions concerning the construction,
-------------
validity and interpretation of this Agreement and each 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 6.5. Waivers. No failure or delay on the part of NFRRC in
-------
exercising any power, right or remedy under this Agreement or any 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 6.6. 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
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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 6.7. 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 6.8. 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 6.9. 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 6.10. 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 6.11. 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 6.12. 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 6.13. 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.
* * * * *
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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/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
Vice President and Treasurer
EXHIBIT A
FORM OF INITIAL PA ASSIGNMENT
-----------------------------
For value received, in accordance with the Purchase Agreement, dated as of
November 1, 2001 (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 aggregate Starting Receivables Balance of
----------
$292,329,093.98) (the "Designated Receivables") and all monies paid thereon
(including Liquidation Proceeds) and due thereunder on and after October 1,
2001; (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, 2001.
NAVISTAR FINANCIAL CORPORATION
By:
Name:
Title:
EXHIBIT B
FORM OF SUBSEQUENT TRANSFER PA ASSIGNMENT
-----------------------------------------
For value received, in accordance with the Purchase Agreement, dated as
of November 1, 2001 (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 aggregate Starting Receivables Balance of
----------
$______________) (the "Designated Receivables") and all monies paid thereon
(including Liquidation Proceeds) and due thereunder on and after _________, 2001
(the "Subsequent 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 Subsequent Transfer 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 Subsequent Transfer
PA Assignment to be duly executed as of _____________, 2001.
NAVISTAR FINANCIAL CORPORATION
By:
Name:
Title:
APPENDIX A
Additional Representations and Warranties
-----------------------------------------
1. This Agreement, the Pooling and Servicing Agreement and the Indenture
create a valid and continuing security interest (as defined in the
applicable UCC) in the Designated Receivables in favor of NFRRC, which
security interest is prior to all other Liens, and is enforceable as
such as against creditors of and purchasers from NFC, NFRRC and the
Owner Trustee, respectively.
2. NFC has taken all steps necessary to perfect its security interest
against each Obligor in the property securing the Designated
Receivables.
3. The Designated Receivables constitute "tangible chattel paper" within
the meaning of the applicable UCC.
4. NFC owns and has good and marketable title to the Designated
Receivables free and clear of any Lien, claim or encumbrance of any
Person.
5. NFC has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Designated Receivables granted to NFRRC
hereunder, the Owner Trustee under the Pooling and Servicing Agreement
and the Indenture Trustee under the Indenture.
6. Other than the security interest granted to NFRRC pursuant to the Basic
Documents, none of NFC, NFRRC or the Owner Trustee has pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Designated Receivables. None of NFC, NFRRC or the Owner
Trustee has authorized the filing of, and is not aware of, any
financial statements against NFC, NFRRC or the Owner Trustee that
include a description of collateral covering the Designated Receivables
other than any financing statement relating to the security interest
granted to NFRRC under the Basic Documents or that has been terminated.
None of NFC, NFRRC or the Owner Trustee is aware of any judgment or tax
lien filings against NFC, NFRRC or the Owner Trustee.
7. NFC, as Servicer has in its possession all original copies of the Basic
Documents that constitute or evidence the Designated Receivables. The
Basic Documents that constitute or evidence the Designated Receivables
do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than NFRRC.
All financing statements filed or to be filed against NFC, NFRRC or the
Owner Trustee in favor of NFRRC, the Owner Trustee or the Indenture
Trustee, respectively in connection herewith describing the Designated
Receivables contain a statement other than as described in the Basic
Documents, to the following effect: "A purchase of or security interest
in any collateral described in this financing statement will violate
the rights of the Noteholders."
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