Exhibit 10.5
EXECUTION COPY
PURCHASE AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
AND
NAVISTAR FINANCIAL
CORPORATION
DATED AS OF OCTOBER 20,
2006
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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2
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ARTICLE III REPRESENTATIONS AND
WARRANTIES
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2
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SECTION 3.01
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Representations and Warranties as to
Receivables
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2
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SECTION 3.02
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Additional Representations and Warranties of
NFC
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7
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SECTION 3.03
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Representations and Warranties of
NFRRC
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8
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ARTICLE IV CONDITIONS
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9
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SECTION 4.01
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Conditions to Obligation of NFRRC
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9
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SECTION 4.02
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Conditions To Obligation of NFC
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10
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ARTICLE V ADDITIONAL AGREEMENTS
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11
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SECTION 5.01
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Conflicts With Further Transfer and Servicing
Agreements
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11
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SECTION 5.02
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Protection of Title
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11
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SECTION 5.03
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Other Liens or Interests
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11
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SECTION 5.04
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Repurchase Events
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11
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SECTION 5.05
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Indemnification
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12
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SECTION 5.06
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Further Assignments
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12
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SECTION 5.07
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Pre-Closing Collections
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12
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SECTION 5.08
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Limitation on Transfer of International
Purchase Obligations
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13
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SECTION 5.09
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Sale Treatment
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13
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ARTICLE VI MISCELLANEOUS
PROVISIONS
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13
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SECTION 6.01
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Amendment.
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13
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SECTION 6.02
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Survival; Termination
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13
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SECTION 6.03
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Notices
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13
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SECTION 6.04
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Governing Law
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13
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SECTION 6.05
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Waivers
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13
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SECTION 6.06
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Costs and Expenses
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14
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SECTION 6.07
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Confidential Information
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14
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SECTION 6.08
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Headings
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14
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SECTION 6.09
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Counterparts
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14
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SECTION 6.10
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Severability of Provisions
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14
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SECTION 6.11
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Further Assurances
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14
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SECTION 6.12
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Assignment; Third-Party
Beneficiaries
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14
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SECTION 6.13
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Merger and Integration
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15
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SECTION 6.14
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No Petition Covenants
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15
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SECTION 6.15
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MUTUAL WAIVER OF JURY TRIAL
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15
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- i -
EXHIBITS
Exhibit A - Form of PA
Assignment
- ii -
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of
October 20, 2006, 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 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 2006-RBC 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 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 to the PA Assignment delivered to NFRRC on the Purchase Date
(the “ Designated Receivables ”) and the Related
Security associated with the Designated Receivables;
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
$374,921,626.15 shall be paid to NFC in immediately available
funds, and the balance of the Purchase Price ($21,820,835.38) shall
be recorded as an intercompany obligation due from NFRRC to NFC
under a revolving note issued under the Amended and Restated
Intercompany Advance Agreement, dated as of May 3, 1994,
between NFC and 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 as to the Designated Receivables on
which NFRRC relies in accepting the Designated Receivables. Such
representations and warranties speak as of the Closing 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 retail 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
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from the date of any Scheduled
Payment)) of a Financed Vehicle or Financed Vehicles by a retail
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
Annual Percentage 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 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 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;
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(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 such Designated Receivables is true and correct in all
material respects.
(c) Compliance With Law . All
requirements of applicable federal, state and local laws, and
regulations thereunder, including the Equal Credit Opportunity Act,
the Federal Reserve Board’s Regulation “B”, the
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 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
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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
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, or with respect to any Eligible Restructured
Receivable, no such event has occurred 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 it
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 7 months and not greater than 84 months and, as of the
Cutoff Date, had a remaining term to maturity of not less than 6
months and not greater than 84 months.
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(r) Scheduled Payments;
Delinquency . As of the Cutoff Date, each Designated Receivable
had a first scheduled payment that was due on or before
October 31, 2006; as of the Cutoff Date, no Designated
Receivable had or will have a payment that was more than 60 days
past due, or with respect to any Eligible Restructured Receivable,
has not had a payment more than 60 days past due since the date of
its amendment or restructuring; and as of the Purchase Date, no
Designated Receivable had or will have a final scheduled payment
that is due later than September 30, 2013.
(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.
(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 .
(i) The aggregate Starting Receivable Balance of all
Receivables from a single Obligor shall not exceed 2.00% of the
Aggregate Starting Receivable 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
10.00% of the Aggregate Starting Receivables Balance,
(iii) the weighted average remaining maturity of the
Designated Receivables shall not be greater than 58 months,
(iv) the aggregate Starting Receivables Balance of all
Receivables not originated by NFC or one of its Affiliates shall
not exceed 3.00% of the Aggregate Starting Receivables Balance,
(v) the aggregate Starting Receivables Balance for all
Receivables that are Eligible Restructured Receivables shall not
exceed 5.00% of the Aggregate Starting Receivables Balance and
(vi) the aggregate Starting Receivables Balance of all
Receivables secured by used vehicles does not exceed 22.50% of the
Aggregate Starting Receivables Balance and (vii) the aggregate
Starting Receivables Balance of all Receivables owed by Non-Fleet
Obligors does not exceed 22.50% of the Aggregate Starting
Receivables Balance.
(w) Selection Criteria . The
Designated Receivables were selected on a random basis from all
receivables satisfying the selection criteria described herein, and
no selection procedures believed to be adverse to NFRRC or to
holders of the Securities issued under the Further Transfer and
Servicing Agreements were utilized in selecting the Designated
Receivables from those receivables of NFC and Truck Retail
Instalment Paper Corp., its wholly owned subsidiary, which meet the
selection criteria under this Agreement.
(x) Minimum APR . As of the
Cutoff Date, each Designated Receivable has an Annual Percentage
Rate of not less than 5.50%.
(y) Weighted Average APR .
The Designated Receivables transferred on the Pu