EXHIBIT 10.68
RECEIVABLES SALE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF JULY 30, 2004
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TABLE OF CONTENTS
ARTICLE I.........................................................2
SECTION 1.01. Definitions..................................2
ARTICLE II........................................................2
SECTION 2.01. Purchase and Sale of Receivables.............2
SECTION 2.02. Purchase Price...............................2
SECTION 2.03. The Closing..................................2
SECTION 2.04. Payments and Default Fee.....................2
SECTION 2.05. Transfer of Records..........................2
SECTION 2.06. Intended Characterization....................2
ARTICLE III.......................................................2
SECTION 3.01. Representations and Warranties as to
Receivables............................................2
SECTION 3.02. Additional Representations and
Warranties of NFC......................................2
SECTION 3.03. Representations and Warranties of NFRRC......2
ARTICLE IV........................................................2
SECTION 4.01. Conditions to Obligation of NFRRC............2
SECTION 4.02. Conditions To Obligation of NFC..............2
ARTICLE V.........................................................2
SECTION 5.01. Conflicts With Further Transfer and
Servicing Agreements...................................2
SECTION 5.02. Protection of Title..........................2
SECTION 5.03. Other Liens or Interests.....................2
SECTION 5.04. Repurchase Events............................2
SECTION 5.05. Indemnification..............................2
SECTION 5.06. Further Assignments..........................2
SECTION 5.07. Pre-Closing Collections......................2
SECTION 5.08. Limitation on Transfer of International
Purchase Obligations....................................
2
SECTION 5.09. Sale Treatment...............................2
SECTION 5.10. Schedule of Receivables......................2
ARTICLE VI........................................................2
SECTION 6.01. Indemnities by the Originator................2
ARTICLE VII.......................................................2
SECTION 7.01. Amendment....................................2
SECTION 7.02. Survival.....................................2
SECTION 7.03. Notices......................................2
SECTION 7.04. Governing Law................................2
SECTION 7.05. Waivers......................................2
SECTION 7.06. Costs and Expenses...........................2
SECTION 7.07. Confidential Information.....................2
SECTION 7.08. Headings.....................................2
SECTION 7.09. Counterparts.................................2
SECTION 7.10. Severability of Provisions...................2
SECTION 7.11. Further Assurances...........................2
SECTION 7.12. No Other Third-Party Beneficiaries...........2
SECTION 7.13. Merger and Integration.......................2
SECTION 7.14. Bankruptcy Petition..........................2
SECTION 7.15. Limitation of Liability......................2
SECTION 7.16. Assignments..................................2
SECTION 7.17. CONSENT TO JURISDICTION......................2
SECTION 7.18. WAIVER OF JURY TRIAL.........................2
EXHIBITS
Exhibit A - Form of Assignment
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RECEIVABLES SALE AGREEMENT, dated as of July 30, 2004
between NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION, a
Delaware corporation ("NFRRC"), and NAVISTAR FINANCIAL
CORPORATION, a Delaware corporation ("NFC").
WHEREAS, NFRRC desires to purchase 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 commercial
paper, 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:
13
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 Exhibit I to the Receivables Purchase
Agreement of even date herewith by and among Navistar Financial
Retail Receivables Corporation, as Seller, Navistar Financial
Corporation, as Servicer, and Thunder Bay Funding, LLC ("Thunder
Bay"), as Purchaser, and Royal Bank of Canada ("RBC"), as Agent
(as it may be amended, supplemented or modified from time to
time, the "Purchase Agreement"). All references herein to "the
Agreement" or "this Agreement" are to this Sale 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 Exhibit I, and all references herein to Articles,
Sections and subsections are to Articles, Sections or subsections
of this Agreement unless otherwise specified.
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 as of the date of this Agreement (the "Closing Date"),
all right, title and interest of NFC in, to and under:
(a) the Retail Notes, secured by one or more Financed Vehicles,
that are identified in a schedule to the Assignment delivered to
NFRRC on the Closing Date (the "Designated Receivables") and all
monies paid thereon (including Liquidation Proceeds) and due
thereunder on and after the Cutoff Date;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Designated Receivables and, to the
extent permitted by law, any accessions thereto which are
financed by NFC;
(c) all other security interests or liens and property, if any,
purporting to secure payment of such Designated Receivables,
whether pursuant to a Contract related to such Designated
Receivables or otherwise, together with all financing statements
and security agreements describing any collateral securing such
Designated Receivables;
(d) the benefits of any lease assignments with respect to the
related Financed Vehicles;
(e) any proceeds from any Insurance Policies with respect to the
Designated Receivables;
(f) 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
(g) all guaranties, letters of credit and other agreements or
arrangements of whatever character from time to time supporting
or securing payment of such Designated Receivable whether
pursuant to the Contract related to such Designated Receivable or
otherwise (other than the International Purchase Obligations);
(h) all Records and Receivable Files relating to such Designated
Receivables;
(i) all of NFC's right, title and interest in the Designated
Accounts and the Designated Account Property; and
(j) all proceeds of any of the foregoing (the property described
in clauses (b) through (j) hereof is referred to as the "Related
Security").
SECTION 2.02. Purchase Price. In consideration for the
purchase of the Designated Receivables and the Related Security,
NFRRC shall, on the Closing Date, pay to NFC an amount equal to
the Initial Aggregate Receivables Balance for such Designated
Receivables (the "Purchase Price") and NFC shall execute and
deliver to NFRRC an Assignment with respect to such Designated
Receivables and Related Security. On the Closing Date, a portion
of the Purchase Price payable on such date equal to approximately
$298,788,749.69 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 under the Navistar Financial Retail
Receivables Corporation Revolving Note dated as of December 16,
1991.
SECTION 2.03. The Closing. The sale and purchase of the
Designated Receivables 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 Purchase Agreement and the Custodian
Agreement (collectively, the "Further Transfer and Servicing
Agreements").
SECTION 2.04. Payments and Default Fee. In the event that
any payment owed by any Person hereunder becomes due on a day
that is not a Business Day, then such payment shall be made on
the next succeeding Business Day. If any Person fails to pay any
amount hereunder when due, such Person agrees to pay, on demand,
the Default Fee in respect thereof until paid in full; provided,
however, that such Default Fee shall not at any time exceed the
maximum rate permitted by applicable law.
SECTION 2.05. Transfer of Records.
(a) NFC hereby sells, transfers, assigns and otherwise conveys
to NFRRC all of NFC's right and title to and interest in the
Records relating to the Designated Receivables, without the need
for any further documentation in connection therewith. In
connection with such transfer, NFC hereby grants to each of
NFRRC, the Agent and the Servicer an irrevocable, non-exclusive
license to use, without royalty or payment of any kind, all
software used by NFC to account for the Designated Receivables to
the extent necessary to administer the Designated Receivables,
whether such software is owned by NFC or is owned by others and
used by NFC under license agreements with respect thereto,
provided that should the consent of any licensor of such software
be required for the grant of the license described herein to be
effective, (i) the grant is limited to the extent that such
consent has been obtained and (ii) NFC hereby agrees that upon
the request of NFRRC (or NFRRC's assignee), NFC will use its
reasonable efforts to obtain the consent of such third-party
licensor. The license granted hereby shall be irrevocable until
the indefeasible payment in full of the Aggregate Unpaids, and
shall terminate on the date this Agreement terminates in
accordance with its terms.
(b) NFC shall take such action requested by NFRRC and/or the
Agent (as NFRRC's assignee), from time to time hereafter, that
may be necessary or appropriate to ensure that NFRRC and its
assigns under the Purchase Agreement have an enforceable
ownership interest in the Records relating to the Designated
Receivables.
SECTION 2.06. Intended Characterization.
(a) Except for the obligation of NFC to repurchase Designated
Receivables in the event of a Repurchase Event, the sale of
Receivables hereunder is made without recourse to Originator;
provided, however, that NFC shall be liable to NFRRC for all
representations, warranties, covenants and indemnities made by
NFC pursuant to the terms of this Agreement or any other
Transaction Documents to which NFC is a party.
(b) It is the intention of the parties hereto that the purchase
of the Designated Receivables made hereunder shall constitute a
sale, which sale is absolute and irrevocable and provides NFRRC
with the full benefits of ownership of the Designated
Receivables. If, notwithstanding the foregoing, the conveyance
by NFC to NFRRC of the Designated Receivables hereunder shall be
characterized as a secured loan and not a sale, or such sale
shall for any reason be ineffective or unenforceable, then this
Agreement shall be deemed to constitute a security agreement
under the UCC and other applicable law. For this purpose and
without being in derogation of the parties' intention that the
sale of Designated Receivables hereunder shall constitute a true
sale thereof, NFC hereby grants to NFRRC a duly perfected
security interest in all of NFC's right, title and interest in,
to and under the Designated Receivables and Related Security with
respect thereto, all other rights and payments relating to the
Designated Receivables and all proceeds of the foregoing to
secure the prompt and complete payment of a loan deemed to have
been made in an amount equal to the Purchase Price of the
Designated Receivables together with all other obligations of NFC
hereunder. In such event, NFRRC and its assigns shall have, in
addition to the rights and remedies which they may have under
this Agreement, all other rights and remedies provided to a
secured creditor under the UCC and other applicable law and in
equity, which rights and remedies shall be cumulative.
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 Closing Date (or, if such
representation and warranty expressly specifies another date,
then as of such other date), 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 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
security interest in favor of NFC in each Financed Vehicle
related thereto, which security interest will be validly
assigned by NFC to NFRRC and will be assignable by NFRRC to
a subsequent purchaser;
(iii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof
adequate for realization against the collateral of the
benefits of the security;
(iv) shall yield interest at the Annual Percentage Rate; and
(v) comes from one of the following categories, which differ in
their provisions for the payment of principal and interest:
Equal Payment Fully Amortizing Receivables, Equal Payment
Skip Receivables, Equal Payment Balloon Receivables, Level
Principal Fully Amortizing Receivables, Level Principal Skip
Receivables, Level Principal Balloon Receivables, or Other
Receivables. "Equal Payment Fully Amortizing Receivables"
are Receivables that provide for equal monthly payments that
fully amortize the amount financed over its original term to
maturity. "Equal Payment Skip Receivables" are Receivables
that provide for equal monthly payments in eleven or fewer
months of each twelve-month period that fully amortize the
amount financed over its original term to maturity. "Equal
Payment Balloon Receivables" are Receivables that provide
for equal monthly payments except that a larger payment
becomes due on the final maturity date for such
Receivables. "Level Principal Fully Amortizing Receivables"
are Receivables that provide for monthly payments consisting
of level principal amounts together with accrued and unpaid
interest on the unpaid Receivable Balances. "Level
Principal Skip Receivables" are Receivables that provide for
monthly payments in eleven or fewer months of each
twelve-month period consisting of level principal amounts
together with accrued and unpaid interest on the unpaid
Receivable Balances. "Level Principal Balloon Receivables"
are Receivables that provide for monthly payments consisting
of level principal amounts together with accrued and unpaid
interest on the unpaid Receivable Balances, except that a
larger principal payment becomes due on the final maturity
date for such Receivables. "Other Receivables" are
Receivables not described above, including Receivables that
provide for level monthly payments in eleven or fewer months
of each twelve-month period that amortize a portion of the
amount financed over its original term to maturity with a
larger payment that becomes due on the final maturity date
for such Receivables.
(b) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material
respects;
(c) Compliance With Law. All requirements of applicable
federal, state and local laws, and regulations thereunder,
including the Equal Credit Opportunity Act, the Federal Reserve
Board's Regulation "B", the Servicemembers Civil Relief Act, and
any applicable bulk sales or bulk transfer law and other equal
credit opportunity and disclosure laws, in respect of any of the
Designated Receivables, have been complied with in all material
respects, and each such Designated Receivable and the sale of the
Financed Vehicle or Financed Vehicles evidenced thereby complied
at the time it was originated or made and now complies in all
material respects with all legal requirements of the jurisdiction
in which it was originated or made;
(d) Binding Obligation. Each Designated Receivable represents
the genuine, legal, valid and binding payment obligation in
writing of the Obligor thereon, enforceable against the Obligor
by the holder thereof in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights in general and by equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) Security Interest in Financed Vehicle. Immediately prior to
the sale, transfer and assignment thereof pursuant hereto, each
Designated Receivable was secured by a validly perfected first
priority security interest in the related Financed Vehicle or, in
the event any such Receivable was secured by more than one
Financed Vehicle, in each related Financed Vehicle, each in favor
of NFC as secured party, or all necessary and appropriate action
had been commenced that will result, within 100 days following
the Cutoff Date, in the valid perfection of a first priority
security interest in each related Financed Vehicle in favor of
NFC as secured party in each case (except for first priority
security interests which may exist in any accessions to Financed
Vehicles 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 Designated Receivable in whole or in part;
(g) No Waiver. Since the Cutoff Date, no provision of any
Designated Receivable has been waived, altered or modified in any
respect;
(h) No Amendments. Since the Cutoff Date, no Designated
Receivable has been amended or otherwise modified such that the
total number of the Obligor's Scheduled Payments is increased or
the Initial Receivable Balance thereof is increased;
(i) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened with respect to any
Designated Receivable;
(j) No Liens. There are, to NFC's knowledge, no Liens or claims
that have been filed for work, labor or materials affecting any
Financed Vehicle securing any Designated Receivable that are or
may be prior to, or equal or coordinate with, the security
interest in each Financed Vehicle granted by the Designated
Receivable (except for Liens or claims which may exist in any
accessions to the Financed Vehicles not financed by NFC);
(k) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Designated
Receivable, and no event has occurred and is continuing that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Designated Receivable, and NFC has not waived any of the
foregoing, in each case except for payments on any Designated
Receivables which are not more than 60 days past due (measured
from the date of any Scheduled Payment) as of the Cutoff Date;
(l) Insurance. Each Obligor on a Designated Receivable is
required to maintain a physical damage insurance policy for each
Financed Vehicle of the type that NFC requires in accordance with
its customary underwriting standards for the purchase of medium
and heavy duty truck, bus and trailer receivables, unless NFC has
in accordance with its customary procedures permitted an Obligor
to self-insure such Financed Vehicle;
(m) Good Title. No Designated Receivable or Related Security
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 was
the legal and beneficial owner thereof, and was the legal and
beneficial owner of all Related Security, or held a valid and
perfected security interest in all Related Security, in each
case, 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 property, a
security interest in which may be perfected by filing under the
applicable UCC ("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); and each Designated Receivable is an "account" or "chattel
paper" within the meaning of Section 9-102 of the UCC.
(r) Maturity of Receivables. Each Designated Receivable has an
original term to maturity of not less than 6 months and not
greater than 85 months and, as of the Cutoff Date, had a
remaining term to maturity of not less than 3 months and not
greater than 84 months;
(s) Annual Percentage Rate. The Annual Percentage Rate of each
Designated Receivable is not less than 4.00%;
(t) Scheduled Payments; Delinquency. As of the Cutoff Date,
each Designated Receivable had a first scheduled payment that
was due on or before August 31, 2004; as of the Cutoff Date, no
Designated Receivable had a payment that was more than 60 days
past due; as of the Closing Date, no Designated Receivable had a
final scheduled payment that is due later than August 31, 2012;
(u) Vehicles. Each Financed Vehicle to which a Designated
Receivable relates was a new or used medium or heavy duty truck,
bus or trailer or other vehicle at the time the related Obligor
executed the Retail Note;
(v) Origin. Each Designated Receivable was originated in the
United States;
(w) Beginning Receivable Balance. The Initial Receivable
Balance of each Designated Receivable shall be $1,000 or more;
(x) Concentration. The aggregate Initial Receivables Balance of
all Receivables from a single Obligor shall not be more than
2.00% of the Initial Aggregate Receivables Balance;
(y) Selection Criteria. The Designated Receivables were
selected on a random basis from all Retail Notes satisfying the
selection criteria described herein, and no selection procedures
believed to be adverse to NFRRC or to the Agent or the Purchasers
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 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 Designated 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; NFC 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 Assignment has been duly executed and delivered and
constitutes a valid sale, transfer and assignment of the
Designated Receivables and Related Security, enforceable against
creditors of and purchasers from NFC and constitutes a legal,
valid and binding obligation of NFC enforceable against NFC in
accordance with its respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the Assignment, and the
fulfillment of the terms of this Agreement and the 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 material 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 material properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust or other
instrument (other than this Agreement, the Assignment or any
Further Transfer and Servicing Agreement), or violate any law or,
to NFC's knowledge, any order, writ, judgment, award, injunction,
decree, rule or regulation applicable to NFC of any court or of
any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over NFC
or any of its properties;
(f) No Proceedings. There are no proceedings or, to NFC's
knowledge, investigations pending or, to NFC's knowledge,
threatened, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over NFC or its properties (i) asserting the
invalidity of this Agreement or the Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement or the Assignment, or (iii) seeking any
determination or ruling that might materially and adversely
affect the performance by NFC of its obligations under, or the
validity or enforceability of, this Agreement or the Assignment;
and
(g) No Consent. No permit, consent, approval or authorization
of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and
performance by NFC of this Agreement or the 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:
(a) Organization and Good Standing. NFRRC has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as
such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has,
power, authority and legal right to acquire and own the
Designated Receivables;
(b) Due Qualification. NFRRC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business
requires such qualification;
(c) Power and Authority. NFRRC has the power and authority to
execute and deliver this Agreement and to carry out its terms and
the execution, delivery and performance of this Agreement have
been duly authorized by NFRRC by all necessary corporate action;
(d) No Violation. The consummation by NFRRC of the transactions
contemplated by this Agreement and the fulfillment of the terms
of this Agreement shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of NFRRC, or any material 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 material
properties pursuant to the terms of any such indenture, agreement
or other instrument (other than this Agreement, the Assignment or
any Further Transfer and Servicing Agreement), or violate any law
or, to NFRRC's knowledge, any order, rule or regulation
applicable to NFRRC of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NFRRC or any of its
properties;
(e) No Proceedings. There are no proceedings or, to NFRRC's
knowledge, investigations pending or, to NFRRC's knowledge,
threatened, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over NFRRC or its properties (i) asserting the
invalidity of this Agreement or the Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by
NFRRC of its obligations under, or the validity or enforceability
of, this Agreement or the 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 the Designated Receivables and
the Related Security hereunder is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations
and warranties of NFC in Sections 3.01 and 3.02 shall be true and
correct on the Closing Date, and NFC shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) No Repurchase Event. No Repurchase Event (as defined in
Section 5.04 below) shall have occurred on or prior to the
Closing Date with respect to any of the Designated Receivables.
(c) Computer Files Marked. NFC shall, at its own expense, on or
prior to the Closing Date, (i) indicate in its computer files
created in connection with the Designated Receivables that the
Designated Receivables have been sold to NFRRC pursuant to this
Agreement and the related Assignment and (ii) deliver to NFRRC
the Schedule of Receivables certified by an officer of NFC to be
true, correct and complete.
(d) Documents to be Delivered By NFC
(i) The Assignment. On the Closing 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 the Closing Date,
NFC shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required
by applicable law, executed by NFC as seller or debtor,
naming NFRRC as purchaser or secured party, naming the
Designated Receivables and Related Security as collateral,
meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect
under the UCC the sale, transfer, assignment and conveyance
of the Designated Receivables and the Related Security (to
the extent it constitutes Code Collateral) to NFRRC.
(iii) Other Documents. On the Closing Date, NFC shall provide
such other documents as NFRRC may reasonably request.
(e) Other Transactions. The related transactions contemplated
by the Further Transfer and Servicing Agreements shall be
consummated on or prior to the Closing Date (and all conditions
precedent thereto shall be satisfied) to the extent that such
transactions are intended to be substantially contemporaneous
with the transactions hereunder.
SECTION 4.02. Conditions To Obligation of NFC. The
obligation of NFC to sell the Designated Receivables to NFRRC
hereunder on the Closing Date is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations
and warranties of NFRRC in Section 3.03 shall be true and correct
as of the Closing Date, and NFRRC shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Purchase Price. On the Closing Date, NFRRC shall pay to NFC
the Purchase Price, payable on such date as provided in Section
2.02 of this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
NFC agrees with NFRRC as follows:
SECTION 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 Designated
Receivables and the Related Security. 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 make any financing
statement or continuation statement filed by NFC in accordance
with Section 5.02(a) seriously misleading within the meaning of
Section 9-506(b) 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) Jurisdiction of Organization; Maintenance of Offices. NFC
shall give NFRRC at least 60 days prior written notice of any
change in its jurisdiction of formation if, as a result of such
change, 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 5.03. 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 Designated Receivables and the Related Security to
any other Person, or grant, create, incur, assume or suffer to
exist any Lien (except any Lien which may exist in accessions to
the Financed Vehicles not financed by NFC) on any interest
therein, and NFC shall defend the right, title and interest of
NFRRC in, to and under the Designated Receivables and Related
Security against all claims of third parties claiming through or
under NFC.
SECTION 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 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 any
Subsequent Transferee 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, if a Servicing
Default has occurred and is continuing, 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 NFRRC on the related
Distribution Date for an amount equal to the Warranty Payment,
without further notice from NFRRC hereunder. 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 any
Person.
SECTION 5.05. 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 5.06. 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 5.07. Pre-Closing Collections. Within two Business
Days after the Closing Date, NFC shall transfer to the account or
accounts designated by NFRRC (or by the Subsequent Transferee
under the Further Transfer and Servicing Agreements) all
Collections (from whatever source) constituting the Designated
Receivables and the Related Security.
SECTION 5.08. 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 5.09. Sale Treatment. NFC intends to treat the
transfer and assignment described herein as a sale for accounting
and tax purposes.
SECTION 5.10. Schedule of Receivables. Until this
Agreement has terminated, each of NFC and NFRRC shall maintain
the Schedule of Receivables at its office set forth on the
signature page hereof for inspection during normal business hours
by interested parties.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Indemnities by the Originator. Without
limiting any other rights that NFRRC may have hereunder or under
applicable law, NFC hereby agrees to indemnify NFRRC and its
officers, directors, agents and employees and its assigns under
the Further Transfer and Servicing Agreement (each an
"Indemnified Party") from and against any and all damages, losses,
claims, taxes, liabilities, costs, expenses and for all other
amounts payable, including reasonable attorneys' fees and
disbursements (all of the foregoing being collectively referred
to as "Indemnified Amounts") awarded against or incurred by any
of them arising out of or as a result of this Agreement or the
acquisition, either directly or indirectly, by NFRRC or its
assigns under the Further Transfer and Servicing Agreements of an
interest in the Designated Receivables, excluding, however:
(a) Indemnified Amounts to the extent that such Indemnified
Amounts resulted from gross negligence or willful misconduct on
the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses
in respect of Designated Receivables that are uncollectible; or
(c) taxes imposed by the jurisdiction in which such Indemnified
Party's principal executive office is located, on or measured by
the overall net income of such Indemnified Party to the extent
that the computation of such taxes is consistent with the
Intended Characterization; provided, however, that nothing
contained in this sentence shall limit the liability of NFC or
limit the recourse of NFRRC to NFC for amounts otherwise
specifically provided to be paid by NFC under the terms of this
Agreement.
Without limiting the generality of the foregoing indemnification,
NFC shall indemnify NFRRC for Indemnified Amounts (including,
without limitation, losses in respect of uncollectible
receivables, regardless of whether reimbursement therefor would
constitute recourse to NFC) relating to or resulting from:
(a) any representation or warranty made by NFC (or any officers
of NFC) under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered
by NFC pursuant hereto or thereto, which shall have been false or
incorrect when made or deemed made;
(b) the failure by NFC to comply with any applicable law, rule,
order, writ, judgment, award, injunction, decree or regulation
with respect to any Designated Receivable or Contract related
thereto, or the nonconformity of any Designated Receivable or
Contract included therein with any such applicable law, rule or
regulation or any failure of the NFC to keep or perform any of
its obligations, express or implied, with respect to any Contract;
(c) any failure of NFC to perform its duties, covenants or other
obligations in accordance with the provisions of this Agreement
or any other Transaction Document;
(d) any products liability, personal injury or damage suit or
similar claim arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract;
(e) any dispute, claim, counterclaim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to
the payment of any Designated Receivable (including, without
limitation, a defense based on such Designated Receivable or the
related Contract not being a legal, valid and binding obligation
of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of the
merchandise or service related to such Designated Receivable or
the furnishing or failure to furnish such merchandise or services;
(f) the commingling of Collections of Designated Receivables at
any time with other funds;
(g) any investigation, litigation or proceeding related to or
arising from this Agreement or any other Transaction Document,
the transactions contemplated hereby, the use of the proceeds of
the sale of Designated Receivables, the ownership of the
Designated Receivables or any other investigation, litigation or
proceeding relating to NFC in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated
hereby;
(h) any inability to litigate any claim against any Obligor in
respect of any Designated Receivable as a result of such Obligor
being immune from civil and commercial law and suit on the
grounds of sovereignty or otherwise from any legal action, suit
or proceeding;
(i) any failure of NFC to acquire and maintain legal and
equitable title to, and ownership of any Designated Receivable
and the Related Security free and clear of any Adverse Claim
(other than as created hereunder); or any attempt by any Person
to void such transfer under statutory provisions or common law or
equitable action (other than as a result of the actions or
inactions of NFRRC or a Subsequent Transferee);
(j) any failure to vest and maintain vested in NFRRC, or to
transfer to NFRRC, legal and equitable title to, and ownership
of, the Designated Receivables and the Related Security free and
clear of any Adverse Claim;
(k) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws with
respect to any Designated Receivable and the Related Security;
(l) any action or omission by NFC which reduces or impairs the
rights of NFRRC with respect to any Designated Receivable or the
value of any such Designated Receivable; and
(m) any attempt by any Person to void the purchase hereunder
under statutory provisions or common law or equitable action; and
(n) any claim by any party arising from the activities of NFC in
administering, servicing or collecting any Designated Receivable.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01....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 7.02. 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 the Closing Date and the closing under the Further
Transfer and Servicing Agreements. This Agreement shall not be
terminated prior to the termination of the Further Transfer and
Servicing Agreements.
SECTION 7.03. Notices. All demands, notices and
communications under this Agreement shall be delivered as
specified in Section 14.2 of the Purchase Agreement.
SECTION 7.04. 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 New York,
without giving effect to any choice of law or conflict provision
or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
SECTION 7.05. Waivers. No failure or delay on the part of
NFRRC in exercising any power, right or remedy under this
Agreement or the 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 7.06. 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 Designated Receivables and the enforcement of
any obligation of NFC hereunder.
SECTION 7.07. 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 Designated
Receivables, under the Further Transfer and Servicing Agreements
or as required by law.
SECTION 7.08. 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 7.09. 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.
Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 7.10. 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 Subsequent Transferee.
SECTION 7.11. 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 and documents 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 7.12. No Other Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto, any Subsequent Transferees 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 7.13. 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.
SECTION 7.14. Bankruptcy Petition.
(a) NFC and NFRRC each hereby covenants and agrees that, prior
to the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of the Company or any
Financial Institution that is a special purpose bankruptcy remote
entity, it will not institute against, or join any other Person
in instituting against, the Company or any such entity any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
(b) NFC covenants and agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding
obligations of NFRRC under the Purchase Agreement, it will not
institute against, or join any other Person in instituting
against, NFRRC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar
proceedings under the laws of the United States or any state of
the United States.
SECTION 7.15. Limitation of Liability. Except with respect
to any claim arising out of the willful misconduct or gross
negligence of the Agent or any Purchaser, no claim may be made by
NFC, NFRRC or any other Person against the Agent or any such
Purchaser or their respective Affiliates, directors, officers,
employees, attorneys or agents, for any special, indirect,
consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out
of or related to the transactions contemplated by this Agreement,
or any act, omission or event occurring in connection therewith,
and NFC and NFRRC each hereby waives, releases, and agrees not to
▇▇▇ upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
SECTION 7.16. Assignments. NFC may not assign any of its
rights and obligations hereunder or any interest herein without
the prior written consent of NFRRC and the Agent. NFRRC may
assign at any time its rights and obligations hereunder and
interests herein to any other Person without the consent of NFC.
Without limiting the foregoing, NFC acknowledges that NFRRC,
pursuant to the Purchase Agreement, may assign to the Agent, for
the benefit of the Purchasers, its rights, remedies, powers and
privileges hereunder and that the Agent and the Purchasers may
further assign such rights, remedies, powers and privileges to
the extent permitted in the Purchase Agreement. NFC agrees that
the Agent, as the assignee of NFRRC, shall have the right to
enforce this Agreement and to exercise directly all of NFRRC's
rights and remedies under this Agreement (including, without
limitation, the right to give or withhold any consents or
approvals of NFRRC to be given or withheld hereunder) and NFC
agrees to cooperate fully with the Agent in the exercise of such
rights and remedies. This Agreement shall create and constitute
the continuing obligations of the parties hereto in accordance
with its terms and shall remain in full force and effect until
terminated in accordance with its terms; provided, however, that
the rights and remedies with respect to (i) any breach of any
representation and warranty made by NFC pursuant to Article III;
(ii) the indemnification and payment provisions of Article VI and
(iii) Sections 7.14 and 7.15 shall be continuing and shall
survive any termination of this Agreement.
SECTION 7.17. CONSENT TO JURISDICTION. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW
YORK, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH
PERSON PURSUANT TO THIS AGREEMENT AND EACH PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS
TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
SECTION 7.18. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES TRAIL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF , RELATED TO, OR
CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY THE
SELLER PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.
* * * * *
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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:
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By
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EXHIBIT A
FORM OF ASSIGNMENT
For value received, in accordance with the Receivables Sale
Agreement, dated as of July 30, 2004 (the "Sale 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
(except to the extent expressly provided in the Sale Agreement),
all right, title and interest of NFC in, to and under (i) the
Receivables listed on Schedule I hereto, (having an Initial
Aggregate Receivables Balance of $324,999,999.66) (the
"Designated Receivables") and all monies paid thereon (including
Liquidation Proceeds) and due thereunder on and after the Cutoff
Date; (ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Designated Receivables and,
to the extent permitted by law, any accessions thereto which are
financed by NFC; (iii) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Designated Receivable, whether pursuant to
a contract related to such Designated Receivable or otherwise,
together with all financing statements and security agreements
describing any collateral securing such Designated Receivable;
(iv) the benefits of any lease assignments with respect to the
Financed Vehicles; (v) any proceeds from any Insurance Policies
with respect to the Designated Receivables; (vi) 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 Sale Agreement); (vii) all
guaranties, letters of credit and other agreements or
arrangements of whatever character from time to time supporting
or securing payment of such Designated Receivable whether
pursuant to the Contract related to such Designated Receivable or
otherwise (other than the International Purchase Obligations);
(viii) all of NFC's right, title and interest in, to and under
the Designated Accounts and all monies therein; (ix) all Records
and Receivables Files relating to such Designated Receivables;
and (x) any proceeds of any of the
foregoing.
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 Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Sale Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of July 30, 2004.
NAVISTAR FINANCIAL CORPORATION
By
Name:
Title: