EXHIBIT 10.1
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 6, 1996
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. Receivables Purchase Price 2
SECTION 2.03. The Closing 2
ARTICLE III REPRESENTATIONS AND WARRANTIES 3
SECTION 3.01. Representations and Warranties
as to the Receivables 3
SECTION 3.02. Additional Representations
and Warranties of NFC 6
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 10
SECTION 5.01. Conflicts With Further Transfer
and Servicing Agreements 10
SECTION 5.02. Protection of Title 10
SECTION 5.03. Other Liens or Interests 11
SECTION 5.04. Repurchase Events 11
SECTION 5.05. Indemnification 11
SECTION 5.06. Further Assignments 11
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 12
SECTION 6.01. Amendment 12
SECTION 6.02. Survival 12
SECTION 6.03. Notices 12
SECTION 6.04. Governing Law 12
SECTION 6.05. Waivers 12
SECTION 6.06. Costs and Expenses 13
SECTION 6.07. Confidential Information 13
SECTION 6.08. Headings 13
SECTION 6.09. Counterparts 13
SECTION 6.10. Severability of Provisions 13
SECTION 6.11. Further Assurances 13
SECTION 6.12. No Third-Party Beneficiaries 13
SECTION 6.13. Merger and Integration 13
Exhibit A
Form of Assignment
PURCHASE AGREEMENT, dated as of November 6, 1996, 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 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 1996-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.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01. Purchase and Sale of Receivables. On such
date as is acceptable to NFRRC and NFC by which the conditions
specified in Article IV have been satisfied (and in any event
immediately prior to consummation of the transactions
contemplated by the Further Transfer and Servicing Agreements, if
any), NFC shall sell, transfer, assign and otherwise convey to
NFRRC, without recourse, and NFRRC shall purchase, all right,
title and interest of NFC in, to and under:
(a) the Receivables listed on the Schedule of 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 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 Financed Vehicles;
(d) any proceeds from any Insurance Policies with respect
to the Receivables;
(e) any proceeds from Dealer Liability with respect to the
Receivables, proceeds from any NITC Purchase Obligations with
respect to the Receivables (subject to the limitations set forth
in Section 5.08) and proceeds from any Guaranties of Receivables;
and
(f) any proceeds of the property described in clauses (a),
(b) and (c) above.
The property described in clauses (a) through (f) is
referred to herein collectively as the "Purchased Property."
SECTION 2.02. Receivables Purchase Price. In consideration
for the Purchased Property, NFRRC shall, at the Closing (as
defined below), pay to NFC an amount equal to the Initial
Aggregate Receivables Balance (the "Receivables Purchase Price")
and NFC shall execute and deliver to NFRRC an assignment (an
"Assignment") in the form attached hereto as Exhibit A. A
portion of the Receivables Purchase Price equal to approximately
$472,811,627.03 shall be paid to NFC in immediately available
funds, and the balance of the Receivables Purchase Price shall be
recorded as an advance from NFC to NFRRC.
SECTION 2.03. The Closing. The sale and purchase of the
Receivables shall take place at such a place, on a date and at a
time mutually agreeable to NFC and NFRRC (the "Closing"), and may
occur simultaneously with the closing of transactions
contemplated by the Further Transfer and Servicing Agreements.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties as to the
Receivables. NFC makes the following representations and
warranties as to the Receivables on which NFRRC relies in
accepting the Receivables. Such representations and warranties
speak as of the date hereof, as of the Closing and as of the
closing under the Further Transfer and Servicing Agreements, and
shall survive the sale, transfer and assignment of the
Receivables to NFRRC and the subsequent assignment and transfer
pursuant to the Further Transfer and Servicing Agreements:
(a) Characteristics of Receivables. Each 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;
(iii) contains customary and enforceable provisions
such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral of
the benefits of the security;
(iv) shall yield interest at the Annual Percentage
Rate; and
(v) comes from one of the following categories, which
differ in their provisions for the payment of principal and
interest: Equal Payment Fully Amortizing Receivables, Equal
Payment Skip Receivables, Equal Payment Balloon Receivables,
Level Principal Fully Amortizing Receivables, Level
Principal Skip Receivables, Level Principal Balloon
Receivables, or Other Receivables. "Equal Payment Fully
Amortizing Receivables" are Receivables that provide for
equal monthly payments that fully amortize the amount
financed over its original term to maturity. "Equal Payment
Skip Receivables" are Receivables that provide for equal
monthly payments in eleven or fewer months of each
twelve-month period that fully amortize the amount financed
over its original term to maturity. "Equal Payment Balloon
Receivables" are Receivables that provide for equal monthly
payments except that a larger payment becomes due on the
final maturity date for such Receivables. "Level Principal
Fully Amortizing Receivables" are Receivables that
provide for monthly payments consisting of level principal
amounts together with accrued and unpaid interest on the
unpaid Receivable Balances. "Level Principal Skip
Receivables" are Receivables that provide for monthly
payments in eleven or fewer months of each twelve-month
period consisting of level principal amounts together with
accrued and unpaid interest on the unpaid Receivable
Balances. "Level Principal Balloon Receivables" are
Receivables that provide for monthly payments consisting of
level principal amounts together with accrued and unpaid
interest on the unpaid Receivable Balances, except that a
larger principal payment becomes due on the final maturity
date for such Receivables. "Other Receivables" are
Receivables not described above, including Receivables that
provide for level monthly payments in eleven or fewer months
of each twelve-month period that amortize a portion of the
amount financed over its original term to maturity with a
larger payment that becomes due on the final maturity date
for such Receivables.
(b) Schedule of Receivables. The information set forth in
the Schedule of Receivables is true and correct in all material
respects;
(c) Compliance With Law. All requirements of applicable
federal, state and local laws, and regulations thereunder,
including the Equal Credit Opportunity Act, the Federal Reserve
Board's Regulation "B", the Soldiers' and Sailors' Civil Relief
Act of 1940, and any applicable bulk sales or bulk transfer law
and other equal credit opportunity and disclosure laws, in
respect of any of the Receivables, have been complied with in all
material respects, and each 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 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 Receivable was secured by a validly perfected first
priority security interest in the Financed Vehicle or, in the
event a Receivable was secured by more than one Financed Vehicle,
in each 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
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 Receivable has been
satisfied, subordinated or rescinded, and no Financed Vehicle
securing any Receivable has been released from the Lien of the
related Receivable in whole or in part;
(g) No Waiver. Since the Cutoff Date, no provision of a
Receivable has been waived, altered or modified in any respect;
(h) No Amendments. Since the Cutoff Date, no 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 is increased;
(i) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with
respect to any 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 Receivable that are
or may be prior to, or equal or coordinate with, the security
interest in each Financed Vehicle granted by the 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
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
Receivable, and NFC has not waived any of the foregoing, in each
case except for payments on any 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 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 Receivable has been sold, transferred,
assigned or pledged by NFC to any Person other than NFRRC;
immediately prior to the conveyance of the 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 by NFC, NFRRC shall
have all of the right, title and interest of NFC in and to the
Purchased Property, 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 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
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 Purchased Property (to the
extent it constitutes Code Collateral) shall have been made, and
the Receivables constitute Code Collateral;
(p) One Original. There is only one original executed copy
of each Receivable;
(q) No Documents or Instruments. No 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 Receivable has an
original term to maturity of not less than 12 months and not
greater than 84 months and a remaining term to maturity of not
less than 12 months and not greater than 73 months;
(s) Annual Percentage Rate. The Annual Percentage Rate of
each Receivable is not less than 7.000%;
(t) Scheduled Payments; Delinquency. As of the Cutoff
Date, each Receivable had a first scheduled payment that was due
on or before October 31, 1996 and a final scheduled payment that
was due on or before October 31, 2002, and no Receivable had a
payment that was more than 60 days past due as of the Cutoff
Date; and as of the Closing Date, no Receivable will have a final
scheduled payment that is due later than March 31, 2003;
(u) Vehicles. Each Financed Vehicle was a new or used
medium or heavy duty truck, bus or trailer at the time the
related Obligor executed the Retail Note;
(v) Origin. Each Receivable was originated in the United
States;
(w) Beginning Receivable Balance. The Receivable Balance
of each Receivable as of the Cutoff Date 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 1.99% of the Initial Aggregate Receivables Balance;
(y) Selection Criteria. The Receivables included in the
Schedule of 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 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
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, as of the Closing and as of the 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 property
to be sold and assigned 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, when
duly executed and delivered, shall constitute a valid sale,
transfer and assignment of the Receivables, enforceable against
creditors of and purchasers from NFC; and this Agreement, when
duly executed and delivered, shall constitute a legal, valid and
binding obligation of NFC enforceable against NFC 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;
(e) No Violation. The consummation 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 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 or any Further
Transfer and Servicing Agreement, or violate any law or, to NFC's
knowledge, any order, rule or regulation applicable to NFC of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over NFC or any of its properties;
(f) No Proceedings. There are no proceedings or, to NFC's
knowledge, investigations pending or, to NFC's knowledge,
threatened, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over NFC or its properties (i) asserting the
invalidity of this Agreement, (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 NFC of
its obligations under, or the validity or enforceability of, this
Agreement; 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 consummation by NFC of the transactions contemplated hereby
except as expressly contemplated herein.
SECTION 3.03. Representations and Warranties of NFRRC.
NFRRC hereby represents and warrants to NFC as of the date hereof
and as of the Closing:
(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;
(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 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, (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;
(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 Receivables hereunder is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of NFC hereunder shall be true and
correct at the Closing 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 the Closing.
(b) No Repurchase Event. No Repurchase Event (as defined
in Section 5.04 below) shall have occurred on or prior to the
Closing.
(c) Computer Files Marked. NFC shall, at its own expense,
on or prior to the Closing, (i) indicate in its computer files
created in connection with the Receivables that the Receivables
have been sold to NFRRC pursuant to this Agreement 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 at the Closing.
(i) The Assignment. At the Closing, NFC shall execute
and deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the
Closing, 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 Purchased Property 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 Purchased
Property (to the extent it constitutes Code Collateral) to
NFRRC. NFC shall deliver a file-stamped copy, or other
evidence satisfactory to NFRRC of such filing, to NFRRC on
or prior to the Closing.
(iii) Other Documents. At the Closing, NFC shall
provide such other documents as NFRRC may reasonably
request.
(e) Other Transactions. The transactions contemplated by
the Further Transfer and Servicing Agreements shall be
consummated on or prior to the Closing 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 Receivables to NFRRC hereunder 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 at the Closing 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 the Closing.
(b) Receivables Purchase Price. At the Closing, NFRRC
shall pay to NFC the Receivables 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 other Purchased Property 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 Purchased Property.
(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 Purchased Property 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 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 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 may, pursuant to the Further Transfer and Servicing
Agreements, sell the 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 the 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 the 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 Receivables and other Purchased
Property held by NFC at the time of the Closing and conveyed to
NFRRC 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 the
transfer and assignment described herein as a sale for accounting
and tax purposes.
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 V of this Agreement
shall remain in full force and effect and shall survive the
Closing under Section 2.03 hereof and the 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
the 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 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 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.
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: _____________________________
R. ▇▇▇▇▇ ▇▇▇▇
Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: ______________________________
R. ▇▇▇▇▇ ▇▇▇▇
Vice President
EXHIBIT A
FORM OF ASSIGNMENT
For value received, in accordance with the Purchase
Agreement, dated as of November 6, 1996 (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 the Schedule of 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 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
Receivables; (v) any proceeds from Dealer Liability with respect
to the Receivables, proceeds from any NITC Purchase Obligations
with respect to the Receivables (subject to the limitations set
forth in Section 5.08 of the Purchase Agreement) and proceeds
from any Guaranties of 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 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 6, 1996.
NAVISTAR FINANCIAL CORPORATION
By:
Name:
Title: