Exhibit 10.5
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL
CORPORATION
DATED AS OF APRIL 30,
2009
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
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1
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SECTION 1.01
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Definitions
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1
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
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2
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SECTION 2.01
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Purchase and
Sale of Receivables
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2
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SECTION 2.02
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Purchase
Price
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2
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SECTION 2.03
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The
Closing
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3
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3
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SECTION 3.01
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Representations
and Warranties as to Receivables
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3
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SECTION 3.02
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Additional
Representations and Warranties of NFC
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8
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SECTION 3.03
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Representations
and Warranties of NFRRC
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9
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ARTICLE IV
CONDITIONS
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10
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SECTION 4.01
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Conditions to
Obligation of NFRRC
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10
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SECTION 4.02
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Conditions To
Obligation of NFC
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11
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ARTICLE V
ADDITIONAL AGREEMENTS
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12
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SECTION 5.01
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Conflicts With
Further Transfer and Servicing Agreements
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12
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SECTION 5.02
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Protection of
Title.
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12
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SECTION 5.03
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Other Liens or
Interests
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12
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SECTION 5.04
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Repurchase
Events
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13
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SECTION 5.05
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Indemnification
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14
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SECTION 5.06
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Further
Assignments
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14
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SECTION 5.07
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Pre-Purchase
Date Collections
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14
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SECTION 5.08
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Limitation on
Transfer of Navistar Purchase Obligations
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14
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SECTION 5.09
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Sale
Treatment
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14
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ARTICLE VI
MISCELLANEOUS PROVISIONS
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14
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SECTION 6.01
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Amendment.
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14
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SECTION 6.02
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Survival;
Termination
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15
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SECTION 6.03
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Notices
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15
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SECTION 6.04
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Governing
Law
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15
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SECTION 6.05
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Waivers
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15
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SECTION 6.06
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Costs and
Expenses
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15
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SECTION 6.07
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Confidential
Information
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15
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SECTION 6.08
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Headings
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15
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SECTION 6.09
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Counterparts
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16
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SECTION 6.10
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Severability of
Provisions
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16
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SECTION 6.11
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Further
Assurances
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16
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SECTION 6.12
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Assignment;
Third-Party Beneficiaries
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16
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SECTION 6.13
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Merger and
Integration
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16
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SECTION 6.14
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No Petition
Covenants
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16
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SECTION 6.15
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MUTUAL WAIVER
OF JURY TRIAL
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17
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EXHIBIT
A:
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Form of PA
Assignment
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APPENDIX
A:
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Additional
Representations and Warranties
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of
April 30, 2009, between NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, a Delaware corporation (“ NFRRC ”),
and NAVISTAR FINANCIAL CORPORATION, a Delaware corporation (“
NFC ”).
WHEREAS, NFRRC desires to purchase
on the date hereof certain Receivables and the Related Security
with respect thereto;
WHEREAS, NFC is willing to sell the
Receivables and the Related Security with respect thereto to
NFRRC;
WHEREAS, NFRRC may wish to sell or
otherwise transfer the Receivables and the Related Security with
respect thereto, or interests therein, to a trust, corporation,
partnership or other entity (any such transferee being the “
Subsequent Transferee ”); and
WHEREAS, the Subsequent Transferee
may issue debentures, notes, participations, certificates of
beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities
being “ Securities ”) to fund its acquisition of
the Receivables and the Related Security with respect thereto and,
in connection with such issuance, the Subsequent Transferee may
grant a security interest in, or otherwise pledge the Receivables
and Related Security to the Indenture Trustee, for the benefit of
the Financial Parties.
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 Agreement, of even date herewith, by and
between Navistar Financial 2009-A Owner Trust and NFRRC, 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 . Subject to the satisfaction of the conditions
specified in Article IV , NFC agrees to and does hereby
sell, transfer, assign and otherwise convey to NFRRC, without
recourse (except as provided in Section 5.04 ), and
NFRRC agrees to purchase on the Closing Date (the “
Purchase Date ”), pursuant to a written assignment
substantially in the form of Exhibit A (the “ PA
Assignment ”), all right, title and interest of NFC in,
to and under the Retail Notes identified on the Schedule of Retail
Notes attached to the PA Assignment delivered to NFRRC on the
Purchase Date (the “ Designated Receivables ”)
and the Related Security associated with the Designated
Receivables.
It is the intention of NFC and NFRRC
that the transfer and assignment contemplated by this
Section 2.01 shall constitute a sale of the Designated
Receivables and Related Security by NFC to NFRRC and the beneficial
interest in and title to the assets conveyed pursuant to this
Section 2.01 shall not be part of NFC’s estate in
the event of the filing of a bankruptcy petition by or against NFC
under any bankruptcy law. NFC intends to treat such transfer and
assignment as a sale for tax and other purposes and a secured
financing for accounting purposes. Notwithstanding the foregoing,
in the event a court of competent jurisdiction determines that such
transfer and assignment did not constitute such a sale or that such
sale shall for any reasons be ineffective or unenforceable or that
such beneficial interest is a part of NFC’s estate (any of
the foregoing, a “ Recharacterization ”), then
(i) NFC shall be deemed to have granted to NFRRC a first
priority perfected security interest in all of NFC’s right
title and interest in, to and under the assets conveyed pursuant to
this Section 2.01 , and NFC hereby grants such security
interest and (ii) the assets conveyed pursuant to this
Section 2.01 shall be deemed to include all rights,
powers and options (but none of the obligations, if any) of NFC
under any agreement or instrument included in the assets conveyed
pursuant to this Section 2.01 , including the immediate
and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of the
Designated Receivables included in the assets conveyed pursuant to
this Section 2.01 and all other monies payable under
the Designated Receivables conveyed pursuant to this
Section 2.01 , to give and receive notices and other
communications, to make waivers or other agreements, to exercise
all rights, powers and options, to bring Proceedings in the name of
NFC or otherwise and generally to do and receive anything that NFC
is or may be entitled to do or receive under or with respect to the
assets conveyed pursuant to this Section 2.01 . For
purposes of such grant, this Agreement shall constitute a security
agreement under the UCC. In the case of any Recharacterization,
each of NFC and NFRRC represents and warrants as to itself that
each remittance of collections by NFC to NFRRC hereunder or in
connection herewith will have been (i) in payment of a debt
incurred by NFC in the ordinary course of business or financial
affairs of NFC and NFRRC and (ii) made in the ordinary course
of business or financial affairs of NFC and NFRRC.
SECTION 2.02 Purchase Price .
In consideration for the purchase of any Designated Receivables and
Related Security, NFRRC shall, on the Purchase Date, pay to NFC an
amount equal to the aggregate Starting Receivables Balance for such
Designated Receivables (the “ Purchase Price ”)
and NFC shall execute and deliver to NFRRC a PA Assignment with
respect to such Designated Receivables. On the Closing Date, a
portion of the Purchase Price payable on such date equal to
$298,639,300.17 shall be paid to
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NFC in immediately available funds, and the
balance of the Purchase Price ($44,624,263.24) shall be recorded as
an intercompany obligation due from NFRRC to NFC under a revolving
note (the “ NFRRC Revolving Note ”) issued under
the Amended and Restated Intercompany Advance Agreement, dated as
of May 3, 1994, between NFC and NFRRC or, to the extent
requested by NFC, be recorded as a capital contribution of cash
from NFC to NFRRC.
SECTION 2.03 The Closing .
The sale and purchase of the Designated Receivables (the “
Closing ”), shall take place at such a place, on a
date and at a time mutually agreeable to NFC and NFRRC, and may
occur simultaneously with the closing of any related transactions
contemplated by the Further Transfer and Servicing
Agreements.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
SECTION 3.01 Representations and
Warranties as to Receivables . NFC makes the following
representations and warranties and the additional representations
and warranties set forth in Appendix A hereto as to the
Designated Receivables on which NFRRC relies in accepting the
Designated Receivables. Such representations and warranties speak
as of the Purchase Date for such Designated Receivables and as of
the date of the related transfer of such Designated Receivables
under the Further Transfer and Servicing Agreements, and shall
survive the sale, transfer and assignment of such Designated
Receivables to NFRRC and the subsequent assignment and transfer
thereof pursuant to the Further Transfer and Servicing
Agreements:
(a) Characteristics of
Receivables . Each Designated Receivable:
(i) was originated or acquired by
NFC to finance a retail purchase by a business customer or a
refinancing (for reasons other than credit reasons, unless it was
amended or restructured at least 12 months prior to the Cutoff
Date, it is not owed by an Obligor that is the subject of a
bankruptcy or insolvency proceeding and since its amendment or
restructuring it has not been greater than 60 days past due
(measured from the date of any Scheduled Payment)) of a Financed
Vehicle or Financed Vehicles by a business customer;
(ii) has created or shall create a
valid, binding and enforceable first priority, perfected 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
Customer Rate and 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
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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;
(v) immediately prior to the
transfer and assignment thereof to NFRRC by NFC pursuant to this
Agreement, NFC had good title to it, free of any Lien (except for
Liens that will be released as of the date of such transfer), and
all right, title and interest in it has been validly sold by NFC to
NFRRC pursuant to this Agreement, and NFRRC has good title to it,
free of any Lien (except for Liens created by the Basic Documents),
and the transfer of the Retail Note to NFRRC has been perfected
under the UCC; and
(vi) was originated or acquired in
the ordinary course of business in accordance with NFC’s
underwriting standards.
(b) Schedule of Retail Notes
. The information set forth in the Schedule of Retail Notes
relating to the Designated Receivables is true and correct in all
material respects.
(c) Compliance With Law . All
requirements of applicable federal, state and local laws, and
regulations thereunder, including the Equal Credit Opportunity Act,
the Federal Reserve Board’s Regulation “B”, the
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.
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(d) Binding Obligation . Each
Designated Receivable represents the genuine, legal, valid and
binding payment obligation in writing of the Obligor thereon,
enforceable against the Obligor by the holder thereof in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors’ rights in general and
by equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(e) Security Interest in Financed
Vehicle . Immediately prior to the sale, transfer and
assignment thereof pursuant hereto, each Designated Receivable was
secured by a validly perfected first priority security interest in
the related Financed Vehicle or, in the event any such Receivable
was secured by more than one Financed Vehicle, in each related
Financed Vehicle, each in favor of NFC as secured party, or all
necessary and appropriate action had been commenced that will
result, within 100 days following the Cutoff Date, in the valid
perfection of a first priority security interest in each related
Financed Vehicle in favor of NFC as secured party in each case
(except for first priority security interests which may exist in
any accessions not financed by NFC).
(f) Receivables In Force . No
Designated Receivable has been satisfied, subordinated or
rescinded, and no Financed Vehicle securing any Designated
Receivable has been released from the Lien of the related
Receivable in whole or in part.
(g) No Waiver . Since the
Cutoff Date, no provision of any Designated Receivable has been
waived, altered or modified in any respect.
(h) No Amendments . Since the
Cutoff Date, no Designated Receivable has been amended or otherwise
modified such that the total number of the Obligor’s
Scheduled Payments is increased or the Starting Receivable Balance
thereof is increased, and prior to the Cutoff Date, no Designated
Receivable has been amended or restructured for credit reasons,
unless it was amended or restructured at least 12 months prior to
the Cutoff Date, it is not owed by an Obligor that is the subject
of a bankruptcy or insolvency proceeding and since its amendment or
restructuring it has not been greater than 60 days past due
(measured from the date of any Scheduled Payment).
(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 relating to
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 Permitted
Liens).
(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
(i) payments on any Designated Receivables which were not more
than 30 days past due
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(measured from the date of any Scheduled
Payment) as of the Cutoff Date or (ii) payments on any
Eligible Restructured Receivable which were not more than 60 days
past due (measured from the date of any Scheduled Payment) since
the date of its amendment or restructuring.
(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 truck, bus and trailer receivables,
unless NFC has in accordance with its customary procedures
permitted an Obligor to self-insure such Financed
Vehicle.
(m) 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.
(n) 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 such
Related Security constitutes Code Collateral) have been made, and
the Designated Receivables constitute Code Collateral.
(o) One Original . There is
only one original executed copy of each Designated
Receivable.
(p) No Documents or Instruments;
Etc . No Designated Receivable, or constituent part thereof,
constitutes a “negotiable instrument” or
“negotiable document of title” (as such terms are used
in the UCC), each Designated Receivable is an “account”
or “tangible chattel paper” within the meaning of
Section 9-102 of the UCC.
(q) Maturity of Receivables .
Each Designated Receivable has an original term to maturity of not
less than 6 months and not greater than 84 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.
(r) Scheduled Payments;
Delinquency. (i) As of the Cutoff Date, each Designated
Receivable being purchased on the Closing Date had a first
scheduled payment that was due on or before May 1, 2009
(provided that, as described in Section 5.04 hereof,
NFC shall repurchase any Designated Receivable having a first
scheduled payment that was due after the Closing Date);
(ii) as of the Cutoff Date, no Designated Receivable being
purchased on the Closing Date had or will have a payment that was
more than 30 days past due (measured from the date of any Scheduled
Payment); (iii) as of the Cutoff Date, no Eligible
Restructured Receivable being purchased on the Closing Date has had
a payment more than 60 days past due since the date of its
amendment or restructuring; and (iv) as of the related
Purchase Date, no Designated Receivable had or will have a final
scheduled payment that is due later than March 31,
2016.
(s) Vehicles . Each Financed
Vehicle to which a Designated Receivable relates was a new or used
medium or heavy duty truck, truck chassis, bus or trailer at the
time the related Obligor executed the Retail Note.
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(t) Origin . Each Designated
Receivable was originated in the United States and is payable in
U.S. Dollars.
(u) Starting Receivable
Balance . The Starting Receivable Balance of each Designated
Receivable as of the Cutoff Date shall be $1,000 or
more.
(v) Concentration . After
giving effect to the transfer of such Designated Receivables to the
Trust under the Further Transfer and Servicing Agreements,
(i) the aggregate Starting Receivable Balance of all
Receivables from a single Obligor shall not exceed 2.00% of the
Aggregate Starting Receivables Balance; (ii) the aggregate
Starting Receivable Balance of all Receivables having a remaining
term in excess of 72 months as of the Cutoff Date shall not exceed
6.00% of the Aggregate Starting Receivables Balance; (iii) the
weighted average remaining maturity of all Receivables shall not be
greater than 55 months; (iv) the aggregate Starting Receivable
Balance of all Receivables not originated by NFC or one of its
Affiliates shall not exceed 0.00% of the Aggregate Starting
Receivables Balance; (v) the aggregate Starting Receivable
Balance for all Receivables that are Eligible Restructured
Receivables shall not exceed 1.00% of the Aggregate Starting
Receivables Balance; (vi) the aggregate Starting Receivable
Balance of all Receivables secured by used vehicles does not exceed
22.00% of the Aggregate Starting Receivables Balance;
(vii) the aggregate Starting Receivable Balance of all
Receivables owed by Non-Fleet Obligors does not exceed 12.00% of
the Aggregate Starting Receivables Balance; (viii) the sum
of the aggregate Starting Receivable Balance of all Receivables
that are (y) Equal Payment Balloon Receivables or
(z) Level Principal Balloon Receivables (both as defined in
Section 3.01(a)(iv) herein) shall not exceed 40.00% of
the Aggregate Starting Receivables Balance; and (ix) the
aggregate Starting Receivable Balance of all Receivables the
Obligors of which are leasing the related Financed Vehicles through
NFC’s Idealease program shall not exceed