EXHIBIT 10.66
TRUCK ENGINE RECEIVABLES MASTER TRUST
$100,000,000 Aggregate Principal Balance
of Floating Rate Trade Receivables Backed Notes, Series 2000-1
PURCHASE AGREEMENT
Dated as of November 15, 2000
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TABLE OF CONTENTS
SECTION 1. Representations, Warranties and Agreements............2
(a) Seller and Navistar Financial..........................2
(b) Initial Purchaser......................................5
SECTION 2. Sale and Delivery to Initial Purchaser -- Closing......6
(a) Notes..................................................6
(b) Payment................................................6
(c) Denominations; Registration............................6
SECTION 3. Covenants of the Seller and Navistar Financial.........6
(a) Offering Memorandum....................................6
(b) Notice and Effect of Material Events...................6
(c) Amendment to Offering Memorandum and Supplements.......6
(d) Qualification of Notes for Offer and Sale..............7
(e) Rating of Notes........................................7
(f) DTC....................................................7
(g) Use of Proceeds........................................7
(h) Information............................................7
(i) Compliance Statements..................................7
SECTION 4. Payment of Expenses....................................7
SECTION 5. Conditions of Initial Purchaser's Obligations..........8
(a) Opinion of Counsel for Seller and Navistar
Financial..............................................8
(b) Opinion of Counsel for Indenture Trustee and Owner
Trustee................................................8
(c) Opinion of Counsel for Initial Purchaser...............8
(d) Officers' Certificate..................................8
(e) Procedures Letter......................................8
(f) Rating of Notes........................................9
(g) Additional Documents...................................9
(h) Termination of Agreement...............................9
SECTION 6. Subsequent Offers and Resales of the Notes.............9
(a) Offer and Sale Procedures..............................9
(b) Covenants of the Seller and Navistar Financial........10
SECTION 7. Indemnification.......................................10
(a) Indemnification of lnitial Purchasers.................10
(b) Indemnification of Seller and Navistar Financial,
Directors and Officers................................11
(c) Actions against Parties; Notification.................12
SECTION 8. Contribution..........................................12
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery......................................13
SECTION 10. Termination of Agreement.............................14
(a) Termination; General.................................14
(b) Liabilities..........................................14
SECTION 11. Notices.............................................14
SECTION 12. No-Petition.........................................14
SECTION 13. Parties.............................................14
SECTION 14. Governing Law.......................................15
SECTION 15. Effect of Headings..................................15
Schedule A - Initial Purchasers
Exhibit A - Opinion of Xxxxxxxx & Xxxxx (in re enforceability
and corporate matters)
Exhibit B - Opinion of Xxxxxxxx & Xxxxx (in re disclosure
matters)
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$100,000,000
Floating Rate Trade Receivables Backed Notes, Series 2000-1
TRUCK ENGINE RECEIVABLES MASTER TRUST
PURCHASE AGREEMENT
November 15, 2000
Banc One Capital Markets, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Truck Engine Receivables Financing Co., a Delaware
corporation (the "Seller"), and Navistar Financial Corporation, a
Delaware corporation ("Navistar Financial"), hereby confirm their
agreement with Banc One Capital Markets, Inc. (the "Initial
Purchaser"), with respect to the purchase by the Initial
Purchaser of $100,000,000 aggregate principal balance of Floating
Rate Trade Receivables Backed Notes, Series 2000-1 (the "Notes")
of Truck Engine Receivables Master Trust (the "Trust").
The Notes are to be issued pursuant to an Indenture to be
dated as of November 21, 2000, among the Seller, Navistar
Financial, as Servicer (the "Servicer"), and The Bank of New
York, as Indenture Trustee (the "Indenture Trustee"), and related
Series 2000-1 Supplement to the Indenture to be dated
November 21, 2000 (the "Supplement"). The Notes will be issued in
book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"), pursuant to a letter agreement
to be dated as of the Closing Date (as defined in Section 2(b))
(the "DTC Agreement"), among the Seller, the Indenture Trustee
and DTC.
The Seller and Navistar Financial understand that the
Initial Purchaser proposes to make an offering of the Notes on
the terms and in the manner set forth herein and agree that the
Initial Purchaser may resell, subject to the conditions set forth
herein, all or a portion of the Notes to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The
Notes are to be offered and sold to and by the Initial Purchaser
without being registered under the Securities Act of 1933, as
amended (the "1933 Act"), in reliance upon exemptions therefrom.
Pursuant to the terms of the Notes and the Indenture and
Supplement and subject to the conditions therein, investors that
acquire Notes may only resell or otherwise transfer such Notes
(i) if such Notes are hereafter registered under the 1933 Act,
(ii) outside the United States to certain persons pursuant to
Regulation S of the 1933 Act ("Regulation S"), or (iii) if an
exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933
Act by the Securities and Exchange Commission (the "Commission").
The Seller has prepared and delivered to the Initial
Purchaser an electronic copy of a preliminary offering memorandum
dated November 2, 2000 (the "Preliminary Offering Memorandum")
and has prepared and will promptly deliver to the Initial
Purchaser an electronic copy of a final offering memorandum dated
as of the date hereof (the "Final Offering Memorandum"), each for
use by such Initial Purchaser in connection with its solicitation
of purchases of, or offering of, the Notes. "Offering
Memorandum" means, with respect to any date or time referred to in
this Agreement, the most recent offering memorandum (whether the
Preliminary Offering Memorandum or the Final Offering Memorandum,
or any amendment or supplement to either such document),
including exhibits thereto and any documents incorporated therein
by reference, which has been prepared and delivered by the Seller
to the Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Notes. Capitalized terms used
herein that are not otherwise defined shall have the meanings
ascribed thereto in the Offering Memorandum.
SECTION (a) Representations, Warranties and Agreements.
(a) Seller and Navistar Financial. The Seller and Navistar
Financial, jointly and severally, represent and warrant to the
Initial Purchaser as of the date hereof and as of the Closing
Date referred to in Section 2(b) hereof, and agree with the
Initial Purchaser, as follows:
(a) None of the Seller, Navistar Financial, any of
their respective affiliates (other than the Initial
Purchaser), as such term is defined in Rule 501(b) under the
1933 Act (each, an "Affiliate") or any person acting on
their behalf (other than the Initial Purchaser, as to whom
the Seller and Navistar Financial make no representation),
has, directly or indirectly, solicited any offer to buy,
sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy or offer to sell or
otherwise negotiate in respect of, any security which is or
would be integrated with the sale of the Notes in a manner
that would require the Notes to be registered under the 1933
Act.
(b) None of the Seller, Navistar Financial any of
their respective Affiliates, or any person acting on their
behalf (other than the Initial Purchaser, as to whom the
Seller and Navistar Financial make no representation) has
engaged or will engage, in connection with the offering of
the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933
Act, or has engaged or will engage in any direct selling
efforts (as that term is defined in Regulation S) with
respect to the Notes, and the Seller and Navistar Financial,
any of their respective Affiliates, and any person acting on
their behalf (other than the Initial Purchaser, as to whom
the Seller and Navistar Financial make no representation)
have complied and will comply with the offering restriction
requirement of Regulation S.
(c) Subject to compliance by the Initial Purchaser
with the representations and warranties set forth in Section
2 and the procedures set forth in Section 6 hereof, it is
not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchaser and to each
Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Notes
under the 1933 Act or to qualify the Indenture and
Supplement under the Trust Indenture Act of 1939, as amended
(the "1939 Act").
(d) Since the respective dates as of which information
is given in the Preliminary Offering Memorandum and the
Final Offering Memorandum, (A) there has been no material
adverse change or development which would reasonably be
expected to result in a material adverse change in the
condition, financial or otherwise, of the Seller or Navistar
Financial, whether or not arising in the ordinary course of
business, other than as set forth or contemplated in the
Final Offering Memorandum and (B) there have been no
transactions entered into by the Seller or Navistar
Financial, other than those in the ordinary course of
business, that are material with respect to the condition,
financial or otherwise, of the Seller or Navistar Financial,
other than as set forth or contemplated in the Final
Offering Memorandum and other than the proposed offering of
$400 million of senior notes of Navistar Financial.
(e) Each of the Seller and Navistar Financial has been
duly formed and is validly existing as a corporation under
the laws of the State of Delaware and all filings required
at the date hereof under the laws of the State of Delaware
with respect to the due formation and valid existence of it
as a corporation thereunder have been made; each of the
Seller and Navistar Financial has all requisite power and
authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum
and to enter into and to perform its obligations; and each
of the Seller and Navistar Financial is duly qualified or
registered as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership of property or the conduct of business,
except where the failure to so qualify would not result in a
material adverse change in its condition, financial or
otherwise.
(f) This Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding
agreement of, the Seller and Navistar Financial, except as
the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), moratorium, reorganization or
other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(g) As of the Closing Date, each Transaction Document
to which it is a party shall have been duly executed and
delivered by the Seller and Navistar Financial and, assuming
the due authorization, execution and delivery thereof by the
other parties thereto, shall constitute the legal, valid and
binding agreement of the Seller and Navistar Financial,
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), moratorium, reorganization or
other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(h) The Notes have been duly authorized and, as of the
Closing Date, will have been duly executed by the Trust and,
when authenticated, issued and delivered in the manner
provided for in the Indenture and Supplement and delivered
against payment of the purchase price therefor as provided
in this Agreement, will constitute the legal, valid and
binding obligations of the Seller, enforceable in accordance
with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law), and will
be in the form contemplated by, and entitled to the benefits
of, the Indenture and Supplement.
(i) Neither the Seller nor Navistar Financial is in
violation of its charter or bylaws, in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be
bound, or to which any of its properties or assets is
subject or in violation of any law, order, rule or
regulation applicable to it or any of its properties of any
court or of any federal or state regulatory, administrative
agency or other governmental instrumentality having
jurisdiction over it or any of its properties; and the
execution, delivery and performance by each of the Seller
and Navistar Financial of this Agreement, and each of the
Transaction Documents to which it is a party and the
consummation of the transactions contemplated herein and
therein and in the Offering Memorandum (including the
issuance and sale of the Notes and the use of the proceeds
from the sale of the Notes as described in the Offering
Memorandum under the caption "Use of Proceeds") and
compliance by it with its obligations hereunder and
thereunder have been duly and validly authorized by all
necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance (a
"Lien") upon any of its properties or assets pursuant to any
material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by
which it may be bound, or to which any of its properties or
assets is subject, nor will such action result in any
violation of the provisions of its charter or bylaws or any
applicable law, order, rule, regulation or administrative or
court decree.
(j) There is no action, suit, proceeding or inquiry
before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of
the Seller or Navistar Financial, threatened, against or
affecting the Seller or Navistar Financial which might
result in a material adverse change in its condition,
financial or otherwise, and all pending legal or
governmental proceedings to which either the Seller or
Navistar Financial is a party or of which any of its
properties or assets is the subject are, considered in the
aggregate, not material.
(k) Subject to compliance by the Initial Purchaser
with the representations and warranties set forth in Section
2(c) and the procedures set forth in Section 6 hereof, no
filing with, or authorization, approval or consent of, any
court, governmental authority or agency or any other person
is necessary in connection with the execution, delivery and
performance by the Seller or Navistar Financial of this
Agreement, the Notes or any of the other Transaction
Documents or the consummation by it of the transactions
contemplated hereby or thereby, except for any filings in
accordance with applicable state securities laws and such as
will have been obtained and are in full force and effect as
of the Closing Date.
(l) Each of the Seller and Navistar Financial
possesses all material certificates, authorities, licenses
or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies as are necessary to
conduct the business now operated by it, and it has not
received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority, license or permit that, individually or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a material adverse change in its
condition, financial or otherwise.
(m) On the Closing Date (after giving effect to all
transactions occurring on such date), the Net Invested
Amount shall not exceed the Base Amount.
(n) No event has occurred and is continuing that
constitutes, or with the passage of time or the giving of
notice or both would constitute, an Early Amortization Event
or a Servicing Default.
(o) Neither the Seller nor Navistar Financial is now,
nor as a result of the transactions contemplated by this
Agreement will it become, an "investment company," nor is it
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(p) As of the Closing Date, the representations and
warranties of each of the Seller and Navistar Financial in
each Transaction Document to which it is a party and in each
officers' certificate of the Seller and Navistar Financial,
delivered as of the Closing Date will be true and correct,
and the Initial Purchaser may rely on such representations
as if they were set forth herein in full.
(b) Initial Purchaser. The Initial Purchaser represents
and warrants to the Seller and Navistar Financial as of the date
hereof and as of the Closing Date referred to in Section 2(b)
hereof, and agrees with the Seller and Navistar Financial, as
follows:
(a) The Initial Purchaser represents and warrants to,
and agrees with the Seller, that it is an "accredited
investor" within the meaning of Rule 501(a) under the 1933
Act (an "Accredited Investor"), with such knowledge and
experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an
investment in the Notes, it is purchasing the Notes pursuant
to a private sale exempt from registration under the 1933
Act, it has not engaged and will not engage in connection
with the offering of the Notes in any form of general
solicitation or general advertising within the meaning of
Rule 502(c) under the 1933 Act, and it will solicit offers
for the Notes, and will offer, sell or deliver the Notes as
part of their initial offering, only in accordance with
Section 6.
(b) With respect to any information not contained in
the Offering Memorandum and designated as confidential by
the Seller and Navistar Financial, the Initial Purchaser
hereby agrees to cause any prospective purchaser of Notes to
execute that certain Confidentiality Letter agreed upon by
the parties hereto prior to the dissemination of such
confidential information to such purchaser.
SECTION (b) Sale and Delivery to Initial Purchaser --
Closing.
(a) Notes. On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Seller agrees to sell to the
Initial Purchaser and the Initial Purchaser agrees to purchase
from the Seller the respective principal balance of Notes set
forth opposite the name of such Initial Purchaser in Schedule A
hereto at a purchase price equal to the principal balance
thereof. As compensation to the Initial Purchaser for its
commitment and obligation hereunder in respect of the Notes, the
Seller will pay to the Initial Purchaser on the Closing Date an
amount equal to 37.5 basis points multiplied by the aggregate
principal balance of the Notes purchased by such Initial
Purchaser hereunder (or $375,000).
(b) Payment. Payment of the purchase price for, and
delivery of the Notes shall be made at the office of Xxxxxxxx &
Xxxxx, Chicago, Illinois, or at such other place as shall be
agreed upon by the Initial Purchaser and the Seller, at 10:00
A.M. (Chicago time) on November 21, 2000, or such other time on
the same or such other date as shall be agreed upon by the
Initial Purchaser and the Seller (such time and date of payment
and delivery being herein called the "Closing Date"). Payment
shall be made to the Seller by wire transfer of immediately
available funds to a bank account designated by the Seller,
against delivery to the Initial Purchaser, through the facilities
of DTC, of the Notes to be purchased by them.
(c) Denominations; Registration. The Notes shall be
registered in the name of Cede & Co. pursuant to the DTC
Agreement and shall be made available for examination by the
Initial Purchaser in Chicago, Illinois not later than 10:00 A.M.
(Chicago time) on the last business day prior to the Closing Date.
SECTION (c) Covenants of the Seller and Navistar
Financial. The Seller and Navistar Financial each severally
covenant and agree as follows:
(a) Offering Memorandum. The Seller and Navistar
Financial, as promptly as possible, will furnish to the Initial
Purchaser an electronic copy of the Final Offering Memorandum
and, with respect to any documents which were not or will not be
provided electronically to the Initial Purchaser, at the expense
of the Seller and Navistar Financial, such number of copies of
any amendments and supplements to the Offering Memorandum and
documents incorporated by reference therein as the Initial
Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Seller and
Navistar Financial will immediately notify the Initial Purchaser,
and confirm such notice in writing, of (x) any filing made by the
Seller or Navistar Financial of information relating to the
offering of the Notes with any securities exchange or any other
regulatory body in the United States or any other jurisdiction,
and (y) prior to the completion of the placement of the Notes by
the Initial Purchaser as evidenced by a notice in writing from
the Initial Purchaser to the Seller, any material changes in or
affecting the Seller, Navistar Financial, the Trust or the
Receivables that make any statement in the Offering Memorandum
false or misleading in any material respect or which requires
additions to or changes in the Offering Memorandum in order to
make the statements therein not misleading.
(c) Amendment to Offering Memorandum and Supplements. The
Seller and Navistar Financial will advise the Initial Purchaser
promptly of any proposal to amend or supplement the Final
Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchaser, which
consent will not unreasonably be withheld. Neither the consent
of the Initial Purchaser, nor the Initial Purchaser's delivery of
any such amendment or supplement, shall constitute a waiver of
any of the conditions set forth in Section 5 hereof.
(d) Qualification of Notes for Offer and Sale. Each of the
Seller and Navistar Financial will use its best efforts, in
cooperation with the Initial Purchaser, to take actions within
its control to qualify the Notes for offering and sale under the
applicable securities laws of such jurisdictions as the Initial
Purchaser may designate and to maintain such qualifications in
effect as long as required for the sale of the Notes; provided,
however, that the Seller shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(e) Rating of Notes. Each of the Seller and Navistar
Financial shall use its best efforts to take all action within
its control that is necessary to enable Standard & Poor's Ratings
Services, a division of McGraw Hill, Inc. ("S&P"). Xxxxx'x
Investors Service, Inc. ("Moody's") and Fitch to provide their
respective credit ratings of the Notes and to the extent, if any,
that any rating provided with respect to the Notes is conditional
upon the furnishing of documents or the taking of any other
actions by the Seller or Navistar Financial, to furnish such
documents and take such actions as soon as is practicable.
(f) DTC. Each of the Seller and Navistar Financial will
cooperate with the Initial Purchaser and use its best efforts to
take actions within its control to permit the Notes to be
eligible for clearance and settlement through the facilities of
DTC and through the Euroclear System and Coldstream Banking,
societe anonyme.
(g) Use of Proceeds. The Seller and Navistar Financial
will use the proceeds received by them from the sale of the Notes
in the manner specified in the Offering Memorandum under "Use of
Proceeds."
(h) Information. So long as any Notes are outstanding, the
Seller and Navistar Financial agree to provide to any holder of
the Notes, or any prospective purchaser thereof, pursuant to Rule
144A, such information as is available to it and as may be
required to render the Notes eligible for resale pursuant thereto.
(i) Compliance Statements. So long as any Notes are
outstanding, the Seller and Navistar Financial will make good
faith efforts to deliver or cause to be delivered to the Initial
Purchaser the annual statements as to compliance and the annual
statements of a firm of independent public accountants as to
compliance.
SECTION (d) Payment of Expenses. Each of the Seller and
Navistar Financial agree, jointly and severally, to pay all
expenses incident to the performance of its obligations under
this Agreement, including: (a) the preparation and printing of
the Offering Memorandum (including financial statements and any
schedules or exhibits and any document incorporated therein by
reference) and of each amendment or supplement thereto, (b) the
preparation, printing and delivery to the Initial Purchaser of
this Agreement, the Indenture and Supplement and such other
documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Notes, (c) the
preparation, issuance and delivery of the Notes to the Initial
Purchaser, including any charges of DTC in connection therewith,
(d) the fees and disbursements of the counsel, accountants and
other advisors to the Seller and Navistar Financial, (e) the
qualification of the Notes under securities laws in accordance
with the provisions of Section 3(d) hereof, including filing fees
and the fees and disbursements of counsel for the Initial
Purchaser in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto,
(f) the fees and expenses of the Owner Trustee and the Indenture
Trustee, including the fees and disbursements of counsel for the
Owner Trustee and the Indenture Trustee in connection with the
Indenture, the Supplement and the Notes; and (g) any fees payable
in connection with the rating of the Notes.
In addition, the Seller and Navistar Financial agree,
jointly and severally, to pay all out-of-pocket expenses of the
Initial Purchaser incurred by the Initial Purchaser in connection
with the transactions contemplated by this Agreement, including,
but not limited to, reasonable legal fees and expenses and due
diligence travel and expenses.
SECTION (e) Conditions of Initial Purchaser's
Obligations. The obligations of the Initial Purchaser hereunder
are subject to the accuracy of the representations and warranties
of the Seller and Navistar Financial contained in Section 1
hereof, to the performance by the Seller and Navistar Financial
of their respective covenants and other obligations hereunder,
and to the following further conditions:
(a) Opinion of Counsel Regarding Enforceability and
Corporate Matters. As of the Closing Date, the Initial
Purchaser, Navistar Financial and the Seller shall have received
the opinions, dated as of the Closing Date, of Xxxxxxxx & Xxxxx,
special counsel to the Seller, Navistar Financial and the Initial
Purchaser, to the effect set forth in Exhibit A hereto.
(b) Opinion of Counsel for Indenture Trustee and Owner
Trustee. As of the Closing Date, the Initial Purchaser shall
have received the opinions, dated as of the Closing Date, of
special counsel to the Owner Trustee and the Indenture Trustee,
in form and substance satisfactory to counsel for the Initial
Purchaser, with respect to such matters as counsel to the Initial
Purchaser may reasonably request.
(c) Opinion of Counsel Regarding Disclosure Matters. As of
the Closing Date, the Initial Purchaser, Navistar Financial and
the Seller shall have received the opinions, dated as of the
Closing Date, of Xxxxxxxx & Xxxxx, special counsel to the Initial
Purchaser, Navistar Financial and the Seller to the effect set
forth in Exhibit B hereto.
(d) Officers' Certificate. As of the Closing Date, the
Initial Purchaser shall have received certificates, dated as of
the Closing Date, of the President, any Vice President or the
Treasurer or any Assistant Treasurer of each of the Seller and
Navistar Financial, in which such officer shall state that
(i) the representations and warranties of the Seller or Navistar
Financial, as the case may be, in this Agreement or any of the
Transaction Documents are true and correct on and as of the
Closing Date, (ii) the Seller or Navistar Financial, as the case
may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder or
under the Transaction Documents on or prior to the Closing Date,
and (iii) subsequent to the date of this Agreement, there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of International Truck and Engine Corporation, the
Seller or Navistar Financial, as the case may be, except as set
forth in or contemplated by the Offering Memorandum.
(e) Procedures Letter. At the time of the execution of
this Agreement, the Initial Purchaser shall have received from a
firm of independent, nationally recognized, certified public
accountants acceptable to the Initial Purchaser a letter
("Procedures Letter"), in form and substance satisfactory to the
Initial Purchaser, verifying the accuracy of such financial and
statistical data contained in the Preliminary Offering Memorandum
as the Initial Purchaser shall deem advisable.
(f) Rating of Notes. As of the Closing Date, the Notes
shall be rated in the "A" category or its equivalent by each of
S&P, Xxxxx'x and Fitch. The Seller shall have delivered to the
Initial Purchaser a letter dated as of the Closing Date, from
each such rating agency, or other evidence satisfactory to the
Initial Purchaser, confirming that the Notes have such ratings.
(g) Additional Documents. As of the Closing Date, counsel
for the Initial Purchaser shall have been furnished with such
documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of
the Notes as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Seller, Navistar Financial, the Owner
Trustee or the Indenture Trustee in connection with the issuance
and sale of the Notes as herein contemplated shall be reasonably
satisfactory in form and substance to the Initial Purchaser and
counsel for the Initial Purchaser.
(h) Termination of Agreement. If any condition specified
in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the
Initial Purchaser by notice to the Seller at any time on or prior
to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 7, 8 and 9 shall survive
any such termination and remain in full force and effect.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed in
compliance with the requirements hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial
Purchaser.
SECTION (f) Subsequent Offers and Resales of the Notes.
(a) Offer and Sale Procedures. The Initial Purchaser, the
Seller and Navistar Financial hereby establish and agree to
observe the following procedures in connection with the offer and
sale of the Notes:
(a) Offers and Sales only to Qualified Institutional
Buyers. Offers and sales of the Notes shall only be made
(A) in the case of offers inside the United States, to
persons whom the offeror or seller reasonably believes to be
Qualified Institutional Buyers, or, if any such person is
buying for one or more institutional accountants for which
such person is acting as fiduciary or agent, only when such
person has represented to such offeror or seller that such
account is a Qualified Institutional Buyer, to whom notice
has been given that such sale or delivery is being made in
reliance on Rule 144A, and (B) in the case of offers outside
the United States, to persons other than U.S. persons
("foreign purchasers," which term shall include dealers or
other professional fiduciaries in the United States acting
on a discretionary basis for foreign beneficial owners
(other than an estate or trust)); provided, however, in the
case of clause (B), in purchasing such Notes such persons
are deemed to have represented and agreed as provided under
the caption "Transfer Restrictions" in the Offering
Memorandum.
(b) No General Solicitation. No general solicitation
or general advertising (within the meaning of Rule 502(c)
under the 0000 Xxx) will be used in the United States in
connection with the offering or sale of the Notes.
(c) Subsequent Purchaser Notification. In the case of
offers and sales inside the United States, the Initial
Purchaser will take reasonable steps to inform, and cause
each of its Affiliates doing business in the United States
to take reasonable steps to inform, persons acquiring Notes
from the Initial Purchaser or Affiliate, as the case may be,
that the Notes (A) have not been and will not be registered
under the 1933 Act, (B) are being sold to them without
registration under the 1933 Act in reliance on Rule 144A or
in accordance with another exemption from registration under
the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to a
person whom the seller reasonably believes is a "qualified
institutional buyer" as defined in Rule 144A that purchases
for its own account or for the account of another qualified
institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A,
(2) in offshore transactions in accordance with Rule 903 or
904 of Regulation S, (3) pursuant to another exemption
available under the 1933 Act or (4) pursuant to a valid
registration statement.
(d) Restrictions on Transfer. The transfer
restrictions and the other provisions set forth in the
Offering Memorandum under the heading "Transfer
Restrictions," including the legend required thereby, shall
apply to the Notes except as otherwise agreed among the
Seller, Navistar Financial and the Initial Purchaser.
(b) Covenants of the Seller and Navistar Financial. Each
of the Seller and Navistar Financial, severally and not jointly,
covenants with the Initial Purchaser as follows:
(a) Integration. Each of the Seller and Navistar
Financial agrees that it will not and will cause its
Affiliates not to solicit any offer to buy or make any offer
or sale of, or otherwise negotiate in respect of, securities
of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act,
such offer or sale would render invalid (for the purpose of
(A) the sale of the Notes by the Seller to the Initial
Purchaser, (B) the resale of the Notes by the Initial
Purchaser to Subsequent Purchasers or (C) the resale of the
Notes by such Subsequent Purchasers to others) the exemption
from the registration requirements of the 1933 Act provided
by Section 4(2) thereof or by Rule 144A thereunder or
otherwise.
(b) Rule 144A Information. Each of the Seller and
Navistar Financial agrees that, in order to render the Notes
eligible for resale pursuant to Rule 144A under the 1933
Act, while any of the Notes remain outstanding, it will make
available, upon request, to any holder of Notes or
prospective purchasers of Notes the information specified in
Rule 144A(d)(4) available to it (such information is herein
referred to as "Additional Information").
SECTION (g) Indemnification
(a) Indemnification of lnitial Purchasers. Each of the
Seller and Navistar Financial agrees, jointly and severally, to
indemnify and hold harmless the Initial Purchaser and each
person, if any, who controls the Initial Purchaser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act as follows:
(a) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Offering Memorandum or the
Final Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(b) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that any
such settlement is effected with the written consent of the
Seller and Navistar Financial;
(c) against any and all expense whatsoever, as
incurred (including the reasonable fees and disbursements of
counsel chosen by the Initial Purchaser), reasonably
incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission of the Seller or Navistar Financial, or any such
alleged untrue statement or omission of the Seller or
Navistar Financial, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that (x) the indemnity provided in (i), (ii),
and (iii) shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the
Seller or Navistar Financial by the Initial Purchaser expressly
for use in the Offering Memorandum (or any amendment thereto) and
(y) the foregoing indemnity with respect to any untrue statement
contained in or any omission from the Preliminary Offering
Memorandum shall not inure to the benefit of the Initial
Purchaser (or any person controlling such Initial Purchaser) from
whom the person asserting any such loss, liability, claim, damage
or expense purchased any of the Notes that are the subject
thereof if the Seller or Navistar Financial shall sustain the
burden of proving that (i) the untrue statement or omission
contained in the Preliminary Offering Memorandum was corrected in
the Final Offering Memorandum; (ii) such person was not sent or
given a copy of the Final Offering Memorandum which corrected the
untrue statement or omission at or prior to the written
confirmation of the sale of such Notes to such person; and (iii)
the Seller satisfied its obligation pursuant to Section 3(b) of
this Agreement to provide to the Initial Purchaser an electronic
copy of the Final Offering Memorandum which corrected the untrue
statement or omission.
(b) Indemnification of Seller and Navistar Financial,
Directors and Officers.
(a) The Initial Purchaser agrees to indemnify and
hold harmless the Seller and Navistar Financial and each
person, if any, who controls the Seller or Navistar
Financial, respectively, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made
in the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Seller
or Navistar Financial by the Initial Purchaser expressly for
use in the Offering Memorandum. The Seller and Navistar
Financial acknowledge that the statements set forth in the
eighth paragraph under the caption "Plan of Distribution" in
the Offering Memorandum constitute the only written
information furnished to the Seller or Navistar Financial by
the Initial Purchaser expressly for use in the Offering
Memorandum.
(b) The Initial Purchaser agrees to indemnify and
hold harmless the Seller and Navistar Financial and each
person, if any, who controls the Seller or Navistar
Financial, respectively, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and
all loss, liability, claim, damage and expense, as incurred,
arising from a breach of Section 1(b)(ii).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the
Initial Purchaser and, in the case of parties indemnified
pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Seller and Navistar Financial.
An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party.
SECTION (h) Contribution. If the indemnification
provided for in Section 7 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Seller and Navistar Financial on the one
hand and the Initial Purchaser on the other hand from the
offering of the Notes pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Seller and Navistar Financial on the one
hand and of the Initial Purchaser on the other hand in connection
with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Seller and Navistar
Financial on the one hand and the Initial Purchaser on the other
hand in connection with the offering of the Notes pursuant to
this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses)
received by the Seller and the discount received by the Initial
Purchaser, bear to the aggregate initial offering price of the
Notes.
The relative fault of the Seller and Navistar Financial on
the one hand and the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Seller and Navistar Financial, on the
one hand, or by the Initial Purchaser, on the other hand, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Each of the Seller, Navistar Financial and the Initial
Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to
above in this Section 8.
Notwithstanding the provisions of this Section 8, the
Initial Purchaser shall not be required to contribute any amount
that in the aggregate exceeds the total price at which the Notes
were purchased and resold by such Initial Purchaser under this
Agreement, less the aggregate amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission or breach.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who
controls the Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Initial Purchaser, and each person,
if any, who controls either the Seller or Navistar Financial
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the
Seller or Navistar Financial, as the case may be.
SECTION (i) Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
of any party hereto contained in this Agreement or in
certificates of officers of the Seller and Navistar Financial
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of the Initial Purchaser or any controlling person, or by
or on behalf of the Seller and Navistar Financial, and shall
survive delivery of the Notes to the Initial Purchaser.
SECTION (j) Termination of Agreement.
(a) Termination; General. The Initial Purchaser may
terminate this Agreement, by notice to the Seller, at any time on
or prior to the Closing Date (i) if there has been, since the
time of execution of this Agreement or since the respective dates
as of which information is given in the Offering Memorandum, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Seller, Navistar Financial or the Trust created by the Trust
Agreement whether or not arising in the ordinary course of
business, (ii) if there has occurred any downgrading in the
rating of the securities of the Seller, Navistar Financial or the
Trust by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule
436(g) under the 0000 Xxx) or any public announcement that any
such organization has under surveillance or review any of the
securities of the Seller, Navistar Financial or the Trust (other
than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such
rating), (iii) if there has occurred any material adverse change
in the financial markets in the United States or financial or
economic conditions in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis, in
each case the effect of which is such as to, in the judgment of
the Initial Purchaser, materially impair the Initial Purchaser's
ability to market the Notes or to enforce contracts for the sale
of the Notes, or (iv) if a banking moratorium has been declared
by either Federal, New York or Illinois authorities.
(b) Liabilities. If this Agreement is terminated pursuant
to this Section, such termination shall be without liability of
any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 7, 8 and 9 shall
survive such termination and remain in full force and effect.
SECTION (k) Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Initial Purchaser
shall be directed to Banc One Capital Markets, Inc. at Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxxxxxxxx
X. Xxxxxx; notices to the Seller shall be directed to Truck
Engine Receivables Financing Co., 0000 Xxxx Xxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000, attention Vice President and Treasurer;
and notices to Navistar Financial shall be directed to Navistar
Financial Corporation, 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxx 00000, attention Vice President and Treasurer.
SECTION (l) No-Petition. The Initial Purchaser agrees
that prior to a date that is one year and one day after the date
on which all amounts owing under the Notes have been paid in
full, it will not commence, or join with any other creditor of
the Seller in commencing, against the Seller, any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or
similar proceeding under any bankruptcy or similar law or
assignment for the benefit of creditors or any marshaling of
assets and liabilities.
SECTION (m) Parties. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchaser, the Seller
and Navistar Financial and their respective successors. Nothing
expressed or mentioned in this agreement is intended or shall be
construed to give any person, other than the Initial Purchaser,
the Seller and Navistar Financial and their respective successors
and the controlling persons and officers and directors referred
to in Sections 7 and 8 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial
Purchaser, the Seller and Navistar Financial and their respective
successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person. No purchaser of Notes from the
Initial Purchaser shall be deemed to be a successor by reason
merely of such purchase.
SECTION (n) Governing Law. This Agreement shall governed
by and construed in accordance with the laws of the State of
Illinois.
SECTION (o) Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
* * * * *
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Seller a counterpart
hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Initial Purchaser,
Navistar Financial, and the Seller in accordance with its terms.
Very truly yours,
TRUCK ENGINE RECEIVABLES FINANCING
CO.
By:
Name:
Its:
NAVISTAR FINANCIAL CORPORATION
By:
Name:
Its:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC ONE CAPITAL MARKETS, INC.
By: .....
Name: .....
Its: Authorized Signatory
--------------------------------------------------------------------------------
SCHEDULE A
INITIAL PURCHASERS
-----------------------------------------------------
Name of Initial Principal Balance
Purchaser of Notes
-----------------------------------------------------
Banc One Capital Markets, Inc. $100,000,000
-------------------
$100,000,000
===================
--------------------------------------------------------------------------------
EXHIBIT A
OPINION OF XXXXXXXX & XXXXX
(Counsel for Seller and Navistar Financial)
--------------------------------------------------------------------------------
EXHIBIT B
OPINION OF XXXXXXXX & XXXXX
(Counsel for Initial Purchaser)
