Exhibit 10.1
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 5, 1997
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.................................................................... 1
SECTION 1.01. Definitions.............................................. 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES............................................... 2
SECTION 2.01. Purchase and Sale of Receivables......................... 2
SECTION 2.02. Purchase Price........................................... 2
SECTION 2.03. The Closings............................................. 2
SECTION 2.04. Covenant Regarding Subsequent Receivables................ 3
ARTICLE III
REPRESENTATIONS 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 IV
CONDITIONS..................................................................... 9
SECTION 4.01. Conditions to Obligation of NFRRC........................ 9
SECTION 4.02. Conditions To Obligation of NFC.......................... 10
ARTICLE V
ADDITIONAL AGREEMENTS.......................................................... 11
SECTION 5.01. Conflicts With Further Transfer and Servicing Agreements. 11
SECTION 5.02. Protection of Title...................................... 11
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 NITC Purchase Obligations...... 12
SECTION 5.09. Sale Treatment........................................... 12
ARTICLE VI
MISCELLANEOUS PROVISIONS....................................................... 13
SECTION 6.01. Amendment................................................ 13
SECTION 6.02. Survival................................................. 13
SECTION 6.03. Notices.................................................. 13
SECTION 6.04. Governing Law............................................ 13
SECTION 6.05. Waivers.................................................. 13
SECTION 6.06. Costs and Expenses....................................... 13
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SECTION 6.07. Confidential Information................................ 13
SECTION 6.08. Headings................................................ 13
SECTION 6.09. Counterparts............................................ 13
SECTION 6.10. Severability of Provisions.............................. 14
SECTION 6.11. Further Assurances...................................... 14
SECTION 6.12. No Third-Party Beneficiaries............................ 14
SECTION 6.13. Merger and Integration.................................. 14
Exhibits
Exhibit A - Form of Initial Assignment
Exhibit B - Form of Subsequent Transfer Assignment
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PURCHASE AGREEMENT, dated as of November 5, 1997, between NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION, a Delaware corporation ("NFRRC"), and
NAVISTAR FINANCIAL CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase from time to time during the Funding
Period a portfolio of retail instalment sale contracts for, and retail loans
evidenced by notes and 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 entity being the "Issuer"); and
WHEREAS, the Issuer 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 1.01. 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 NFC, NFRRC and Navistar Financial 1997-B Owner Trust, 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.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01. 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 (an "Assignment"), and
NFRRC agrees to purchase on the Closing Date and, up to the Available Purchase
Amount, on any 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 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 NITC 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 2.02. 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 an Assignment with respect to such Designated
Receivables. On the Closing Date, a portion of the Purchase Price payable on
such date equal to approximately $385,219,563.23 shall be paid to NFC in
immediately available funds, and the balance of the Purchase Price 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.
SECTION 2.03. The Closings. Each sale and purchase of the Designated
Receivables (each, a "Closing"), shall take place at such a place, on a date and
at a time mutually agreeable to
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NFC and NFRRC, and may occur simultaneously with the closing of any related
transactions contemplated by the Further Transfer and Servicing Agreements.
SECTION 2.04. Covenant Regarding Subsequent Receivables. NFC 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 Receivable
Balance equal to $91,472,361.64. 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 foregoing shall be
the sole remedy of NFRRC, the Issuer, 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 3.01. 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 Purchase Date for such Designated Receivables, and as
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:
(i) was originated by (A) a Dealer for the retail sale of one or more
Financed Vehicles in the ordinary course of such Dealer's business, was
fully and properly executed by the parties thereto, was purchased by NFC
from such Dealer under an existing agreement with NFC and was validly
assigned by such Dealer to NFC in accordance with its terms, (B) a
Distributor for the retail sale of one or more Financed Vehicles in the
ordinary course of such Distributor's business, and was fully and properly
executed by the parties thereto, was purchased by NFC from such Distributor
under an existing agreement with NFC and was validly assigned by such
Distributor to NFC in accordance with its terms, or (C) 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;
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(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 (as supplemented by the schedules to the related Subsequent Transfer
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, 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
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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 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 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
Designated Receivable has been waived, altered or modified in any respect;
(h) No Amendments. Since the applicable 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 Starting 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 applicable 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;
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(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 related 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 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 Designated
Receivable is not less than 7.00%;
(t) Scheduled Payments; Delinquency. As of the applicable Cutoff Date, each
Designated Receivable being purchased on the Closing Date had a first scheduled
payment that was due on or before October 31, 1997; as of the applicable Cutoff
Date, each Designated Receivable being purchased after the Closing Date had 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 a payment that was more
than 60 days past due; as of the related Purchase Date, no Designated Receivable
had a final scheduled payment that is due later than July 31, 2004.
(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;
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(v) Origin. Each Designated Receivable was originated in the United States;
(w) Beginning Receivable Balance. The Starting Receivable Balance of 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 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 9.5%, and (iii) the weighted
average remaining maturity of the Receivables in the Trust shall not be greater
than 54 months;
(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 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 3.02. Additional Representations and Warranties of NFC. NFC
hereby represents and warrants to NFRRC as of the date hereof, and as of each
Purchase Date occurring hereunder and as of the related closing 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
applicable 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 and
assignment of the such Designated Receivables and Related Security, enforceable
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against creditors of and purchasers from NFC; and this Agreement, together with
the applicable 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 by this
Agreement and any Assignment, and the fulfillment of the terms of this Agreement
and any 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 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 instrumental ity 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 any Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
Assignment, or (iii) seeking any determination or ruling that might materially
and adversely affect the perfor xxxxx by NFC of its obligations under, or the
validity or enforceability of, this Agreement or any 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 any Assignment or the consummation by NFC of the transactions contemplated
hereby or thereby except as expressly contemplated herein or therein.
SECTION 3.03. Representations and Warranties of NFRRC. NFRRC hereby
represents and warrants to NFC as of the date hereof and as of each Purchase
Date:
(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 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;
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(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, any 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 any 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 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 4.01. Conditions to Obligation of NFRRC. The obligation of NFRRC
to purchase Designated Receivables and the Related Security hereunder on any
Purchase Date 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 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
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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 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 Assignment).
(d) Documents to be Delivered By NFC.
(i) The Assignment. On such Purchase Date, NFC shall execute and
deliver to NFRRC the 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
each Closing (and all conditions precedent thereto shall be satisfied) to the
extent that such transactions are intended to be substan tially contemporaneous
with the transactions hereunder.
SECTION 4.02. 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:
(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.
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(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 5.01. 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 5.02. 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 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 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 Receivables and its principal
executive office within the United States of America.
SECTION 5.03. 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 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 Receivables and Related
Security against all claims of third parties claiming through or under NFC.
SECTION 5.04. 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
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by NFRRC of such of its right, title and interest in, to and under this
Agreement to the Issuer 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 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
Receivable from the Issuer (if the Issuer is then the Owner of such 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 Receivable for which NFRRC is the Owner, NFC agrees to
repurchase such Receivable from NFRRC for an amount and upon the same terms as
NFC would be obligated to repurchase such Receivable from the Issuer if the
Issuer was then the Owner thereof, and upon payment of such amount, NFC shall
have such rights with respect to such Receivable as if NFC had purchased such
Receivable from the Issuer as the Owner thereof. It is understood and agreed
that the obligation of NFC to repurchase any 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 5.05. Indemnification. NFC shall indemnify NFRRC for any liability
as a result of the failure of a 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 5.06. Further Assignments. NFC acknowledges that NFRRC shall,
pursuant to the Further Transfer and Servicing Agreements, sell Designated
Receivables to the Issuer and assign its rights hereunder to the Issuer, subject
to the terms and conditions of the Further Transfer and Servicing Agreements,
and that the Issuer 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 Issuer.
SECTION 5.07. Pre-Closing Collections. Within two Business Days after each
Closing, NFC shall transfer to the account or accounts designated by NFRRC (or
by the Issuer 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 at the time of
such Closing pursuant to Section 2.01.
SECTION 5.08. Limitation on Transfer of NITC Purchase Obligations. NFRRC
acknowledges and agrees that the rights pursuant to the NITC 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 5.09. Sale Treatment. NFC intends to treat each transfer and
assignment described herein as a sale for accounting and tax purposes.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. 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 6.02. 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 Closing and each closing under the
Further Transfer and Servicing Agreements.
SECTION 6.03. Notices. All demands, notices and communications under this
Agreement shall be delivered as specified in Appendix B to the Pooling and
Servicing Agreement.
SECTION 6.04. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and each 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 6.05. Waivers. No failure or delay on the part of NFRRC in
exercising any power, right or remedy under this Agreement or any 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 6.06. 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 Receivables and the enforcement of any
obligation of NFC hereunder.
SECTION 6.07. 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
Receivables, under the Further Transfer and Servicing Agreements or as required
by law.
SECTION 6.08. 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 6.09. 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.
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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 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.
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:
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R. Xxxxx Xxxx, Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
By:
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R. Xxxxx Xxxx, Vice President and Treasurer
EXHIBIT A
FORM OF ASSIGNMENT
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For value received, in accordance with the Purchase Agreement, dated as of
November 5, 1997 (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 _________________, 199_
(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 NITC 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 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 Assignment to be duly
executed as of November 5, 1997.
NAVISTAR FINANCIAL CORPORATION
By:
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Name:
Title:
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