EXHIBIT 1.1
NAVISTAR FINANCIAL 1995-B OWNER TRUST
$506,625,000 ASSET BACKED NOTES
$18,190,000 ASSET BACKED CERTIFICATES
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(SELLER)
UNDERWRITING AGREEMENT
----------------------
October 18, 1995
Chemical Securities Inc.
As Representative of the
Several Underwriters named
on Schedule I hereto,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Navistar Financial Retail Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to form an owner trust, Navistar Financial
1995-B Owner Trust (the "Trust"), pursuant to a Trust Agreement (the "Trust
Agreement") to be dated as of November 1, 1995 between the Seller and Chemical
Bank Delaware, as owner trustee (the "Owner Trustee"), which will issue (i)
$122,300,000 principal amount of its 5.75% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), (ii) $100,000,000 principal amount of its 5.94% Class A-2
Notes (the "Class A-2 Notes") and (iii) $284,325,000 principal amount of its
6.05% Class A-3 Notes (the "Class A-3 Notes"; and together with the Class A-1
Notes and the Class A-2 Notes, the "Notes") pursuant to an Indenture to be dated
as of November 1, 1995 (the "Indenture") between the Trust and The Bank of New
York, as trustee (the "Indenture Trustee"), and (iv) $18,190,000 principal
amount of its 6.22% Asset Backed Certificates, representing fractional undivided
interests in the Trust (the "Certificates"; and together with the Notes, the
"Securities"). The assets of the Trust will include, among other things, a pool
of retail installment sale contracts for and retail notes evidencing loans
secured by new and used medium and heavy duty trucks, buses and trailers (the
"Receivables"), certain monies due or received thereunder on or after (i) for
the Initial Receivables, October 1, 1995 and (ii) for any Subsequent
Receivables, the date preceding the related Subsequent Transfer Date that is
designated as such by the Seller (in each case, the "Cutoff Date"), security
interests in the vehicles financed thereby, certain accounts, including monies
on deposit in the Pre-Funding Account and the Negative Carry Account, and the
proceeds thereof, the proceeds, if any, of Dealer Liability, NITC Purchase
Obligations and any Guaranties, the proceeds from claims on certain insurance
policies, the benefits of any lease assignments and certain rights of the Seller
under the Purchase Agreement. The Initial Receivables and $70,500,316.57 in
cash to
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be deposited in the Pre-Funding Account will be transferred to the Trust by the
Seller in exchange for the Securities and the Initial Receivables and any
Subsequent Receivables will be serviced for the Trust by Navistar Financial
Corporation ("NFC"; and in its capacity as Servicer, the "Servicer") pursuant to
a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of November 1, 1995 among the Seller, the Servicer and the Trust.
Capitalized terms used and not otherwise defined herein shall have the meanings
given them in the Pooling and Servicing Agreement.
This is to confirm the agreement concerning the purchase of the
Securities from the Seller by the several Underwriters named in Schedule 1
hereto (the "Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF NFC AND THE SELLER. NFC and
the Seller jointly and severally represent and warrant to and agree with the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 33-55865) has been
filed by the Seller with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933, as
amended (the "Securities Act"). Such registration statement may have been
amended or supplemented from time to time prior to the date hereof. Any
such amendment or supplement was filed with the Commission in accordance
with the Securities Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations") and any such amendment has become
effective under the Securities Act. The Seller proposes to file with the
Commission pursuant to Rule 424(b)(5) of the Rules and Regulations a
prospectus supplement (the "Prospectus Supplement") to the prospectus dated
November 29, 1994, relating to the Securities and the method of
distribution thereof. Copies of such registration statement, any amendment
or supplement thereto, such prospectus and the Prospectus Supplement have
been delivered to you. Such registration statement, including exhibits
thereto and such prospectus, as amended or supplemented to the date hereof,
and as further supplemented by the Prospectus Supplement, are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively. The conditions to the use of a registration statement on
Form S-3 under the Securities Act have been satisfied.
(b) The Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became effective, and the
Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and did not include any untrue statement of a
material fact and, in the case of the Registration Statement and any post-
effective amendment thereto, did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and, in the case of the Prospectus, did not omit to state
any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
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misleading; on the Closing Date (as hereinafter defined), the Registration
Statement and the Prospectus, as amended or supplemented as of the Closing
Date, will comply in all material respects with the applicable requirements
of the Securities Act and the Rules and Regulations and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and neither
the Prospectus nor any amendment or supplement thereto will include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representation and warranty in the preceding sentence does not apply to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Indenture
Trustee under the Trust Indenture Act or (ii) that information contained in
or omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
the Underwriters' Information (as defined herein). The Indenture has been
qualified under the Trust Indenture Act.
(c) The Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire, own and sell the Receivables.
(d) The representations and warranties of the Seller in Section 3.03
of the Purchase Agreement and Section 6.01 of the Pooling and Servicing
Agreement will be true and correct as of the Closing Date.
(e) The representations and warranties of NFC in Sections 3.01 and
3.02 of the Purchase Agreement and of the Servicer in Section 6.01 of the
Pooling and Servicing Agreement will be true and correct as of the Closing
Date.
(f) Each of the Seller and NFC has the power and authority to execute
and deliver this Agreement and to carry out the terms of this Agreement and
the execution, delivery and performance by each of the Seller and NFC of
this Agreement have been duly authorized by each of the Seller and NFC by
all necessary corporate action.
(g) This Agreement has been duly executed and delivered by NFC and
the Seller.
(h) When authenticated by the Owner Trustee in accordance with the
Trust Agreement and delivered and paid for pursuant to this Agreement, the
Certificates will be duly issued and entitled to the benefits and security
afforded by the Trust Agreement and the Pooling and Servicing Agreement.
(i) When authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for pursuant to this Agreement, the
Notes will be duly issued and constitute legal, valid and binding
obligations of the Trust enforceable
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against the Trust in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(j) The execution, delivery and performance of this Agreement and the
consummation by each of the Seller and NFC of the transactions contemplated
hereby shall not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or by-laws of such party,
or any indenture, agreement or other instrument to which either such party
is a party or by which it is bound, or violate any law or, to either such
party's knowledge, any order, rule or regulation applicable to such party
of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over such
party or any of its properties; and, except for the registration of the
Securities under the Securities Act, the qualification of the Indenture
under the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and applicable state
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no permit, consent, approval of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
(k) There are no proceedings or, to either of the Seller's or NFC's
knowledge, investigations pending or, to such party's knowledge, threatened
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over such party or its
properties (i) asserting the invalidity of this Agreement or any of the
Securities, (ii) seeking to prevent the issuance of any of the Securities
or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by such party of its obligations
under, or the validity or enforceability of, the Securities or this
Agreement, or (iv) that may adversely affect the federal or state income,
excise, franchise or similar tax attributes of the Securities.
(l) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations and which
have not been so described or filed.
(m) The Seller (i) is not in violation of its certificate of
incorporation or by-laws, (ii) is not in default, in any material respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller
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is a party or by which the Seller is bound or to which any of the Seller's
property or assets is subject or (iii) is not in violation in any respect
of any law, order, rule or regulation applicable to the Seller or any of
the Seller's property of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over it or any of its property, except any violation or
default that would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of
the Seller.
(n) The Purchase Agreement, the Custodian Agreement, the
Administration Agreement and the Further Transfer and Servicing Agreements
conform in all material respects with the descriptions thereof contained in
the Registration Statement and the Prospectus.
(o) Neither the Trust nor the Seller is an "investment company" or
under the "control" of an "investment company" within the meaning thereof
as defined in the Investment Company Act of 1940, as amended.
(p) None of NFC, the Seller or anyone acting on its behalf has taken
any action that would require qualification of the Trust Agreement under
the Trust Indenture Act.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Seller agrees to issue and sell to
each of the Underwriters, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Seller, the
respective principal amount of Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto at a purchase price equal to (i) with respect
to the Class A-1 Notes, 99.87332% of the principal amount thereof, (ii) with
respect to the Class A-2 Notes, 99.77834% of the principal amount thereof, (iii)
with respect to the Class A-3 Notes, 99.74754% of the principal amount thereof
and (iv) with respect to the Certificates, 99.47933% of the principal amount
thereof.
The Seller shall not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as provided herein.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and
payment for the Securities shall be made at the office of Xxxxxxx Xxxxxxx &
Xxxxxxxx, or at such other place as shall be agreed upon by Chemical Securities
Inc., as representative of the Underwriters (the "Representative") and the
Seller, at 10:00 A.M., New York City time, on November 1, 1995, or at such other
date or time, not later than five full business days thereafter, as shall be
agreed upon by the Representative and the Seller (such date and time being
referred to herein as the "Closing Date"). On the Closing Date, the Seller
shall deliver or cause to be delivered to the Representative for the account of
each Underwriter the Securities against payment to or upon the order of the
Seller of the purchase price in immediately available funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, each
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class of the Securities shall be represented by one or more global certificates
registered in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"). The interest of the beneficial owners of the Securities will be
represented by book-entries on the records of DTC and participating members
thereof. Definitive certificates representing the Securities will be available
only under limited circumstances.
4. FURTHER AGREEMENTS OF THE SELLER. The Seller agrees with each of
the several Underwriters:
(a) To file the Prospectus Supplement with the Commission pursuant to
and in accordance with Rule 424(b)(5) of the Rules and Regulations within
the time period prescribed by such rule and provide evidence satisfactory
to the Representative of such timely filing.
(b) During any period in which a prospectus relating to the
Securities is required to be delivered under the Securities Act: advise the
Representative promptly of any proposal to amend the Registration Statement
or amend or supplement the Prospectus and not to effect any such amendment
or supplementation without the consent of the Representative; to advise the
Representative promptly of (i) the effectiveness of any post-effective
amendment to the Registration Statement, (ii) any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose, (iv) the
issuance by the Commission of any order preventing or suspending the use of
any prospectus relating to the Securities or the initiation or threatening
of any proceedings for that purpose and (v) the receipt by the Seller of
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use best efforts to prevent the
issuance of any such stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification and, if any such stop order or order of suspension is issued,
to obtain the lifting thereof at the earliest possible time.
(c) If, during any period in which, in the opinion of counsel to the
Underwriters, a prospectus is required by law to be delivered in connection
with the sale of Securities, any event shall have occurred as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not
misleading, or if for any other reason it shall be necessary at such time
to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Representative immediately thereof, and to
promptly prepare and file with the Commission, subject to paragraph (b) of
this Section 4, an amendment or a supplement
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to the Prospectus such that the statements in the Prospectus, as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading, or such that the
Prospectus will comply with the Securities Act.
(d) To furnish promptly to each of the Representative and counsel for
the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith; and during
the period described in paragraph (c) of this Section 4, to deliver
promptly without charge to the Representative such number of the following
documents as the Representative may from time to time reasonably request:
(i) conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Purchase Agreement, the Custodian Agreement,
the Administration Agreement and the Further Transfer and Servicing
Agreements) and (ii) any preliminary prospectus supplement, the Prospectus
and any amendment or supplement thereto.
(e) During the period described in paragraph (c) of this Section 4,
to file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may,
in the judgment of the Seller, or, in the reasonable judgment of the
Representative, be required by the Securities Act or requested by the
Commission.
(f) For so long as any of the Securities are outstanding, to furnish
to the Underwriters (i) copies of all materials furnished by the Trust to
its Securityholders and all reports and financial statements furnished by
the Trust to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder and (ii) from time to time, such
other information concerning the Seller and the Trust as the Representative
may reasonably request.
(g) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities;
provided that in connection therewith the Seller shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(h) For a period of 30 days from the date of the Prospectus, to not
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering
of, any securities collateralized by, or evidencing an ownership interest
in, a pool of retail installment sale contracts for and retail notes
evidencing loans secured by, for new and used medium and heavy duty trucks,
buses and trailers (other than the Securities and retail notes sold under
NFC's retail purchase facility) without the prior written consent of the
Representative.
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(i) For a period from the date of this Agreement until the retirement
of the Securities, or until such time as no Underwriter shall maintain a
secondary market in the Securities, whichever occurs first, to deliver to
you the annual statement of compliance and the annual independent certified
public accountants' report furnished to the Owner Trustee and the Indenture
Trustee, pursuant to the Pooling and Servicing Agreement, as soon as such
statements and reports are furnished to the Owner Trustee and the Indenture
Trustee, respectively.
(j) To the extent, if any, that the ratings provided with respect to
the Securities by the Standard & Poor's Ratings Group ("S&P") and Xxxxx'x
Investors Service Inc. ("Moody's") are conditional upon the furnishing of
documents or the taking of any other actions by NFC or the Seller, to
furnish such documents and take any such other actions.
(k) On or prior to each Subsequent Transfer Date, the Seller shall
deliver to the Representative (i) a duly executed Subsequent Transfer
Assignment including a schedule of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date, (ii) a copy of
the Officer's Certificate delivered to the Indenture Trustee and the Owner
Trustee confirming the satisfaction of the conditions specified in Section
2.02(b) of the Pooling and Servicing Agreement, (iii) a copy of the Opinion
of Counsel with respect to the transfer of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date to be delivered
to the Rating Agencies pursuant to Section 2.02(b)(ix) of the Pooling and
Servicing Agreement, (iv) a copy of the written confirmation from a firm of
independent nationally recognized certified public accountants to be
delivered to the Trust and the Indenture Trustee pursuant to Section
2.02(b)(x) of the Pooling and Servicing Agreement and (v) a copy of the
written confirmation of S&P received by the Seller pursuant to Section
2.02(b)(xi) of the Pooling and Servicing Agreement.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties of NFC
and the Seller contained herein, to the accuracy of the statements of NFC or the
Seller made in any certificates pursuant to the provisions hereof, to the
performance by the Seller of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of the Representative; and the Seller shall have filed the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(5) of the
Rules and Regulations within the time period prescribed by such rule.
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(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Securities, the
Purchase Agreement, the Custodian Agreement, the Administration Agreement,
the Further Transfer and Servicing Agreements, the Registration Statement
and the Prospectus, and all other legal matters relating to such agreements
and the transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and
the Seller shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(c) Xxxxxxxx & Xxxxx shall have furnished to the Representative their
written opinion, as counsel to the Seller, addressed to the Underwriters
and dated the Closing Date, in substantially the form of Exhibit A hereto.
(d) Xxxxxxxx & Xxxxx shall have furnished to the Representative their
written opinion, as counsel to the Seller, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory
to the Representative, with respect to the characterization of the transfer
of the Receivables by NFC to the Seller pursuant to the Purchase Agreement
as a sale and the non-consolidation of NFC and the Seller.
(e) The Representative shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Representative may
require, and the Seller shall have furnished to such counsel such documents
as they reasonably request for enabling them to pass upon such matters.
(f) Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxx shall have furnished to the
Representative their written opinion, as counsel to the Owner Trustee,
addressed to the Underwriters and dated the Closing Date, in substantially
the form of Exhibit B hereto.
(g) Xxxxx, Xxxxxx & Xxxxxx shall have furnished to the Representative
their written opinion, as counsel to the Indenture Trustee, addressed to
the Underwriters and dated the Closing Date, in substantially the form of
Exhibit C hereto.
(h) The Representative shall have received a letter dated the date
hereof (the "Procedures Letter") from a firm of independent nationally
recognized certified public accountants acceptable to the Representative
verifying the accuracy of such financial and statistical data contained in
the Prospectus as the Representative shall deem advisable. In addition, if
any amendment or supplement to the Prospectus made after the date hereof
contains financial or statistical data, the Representative shall have
received a letter dated the Closing Date confirming the Procedures Letter
and providing additional comfort on such new data.
(i) The Representative shall have received certificates, dated the
Closing Date, of any two of the Chairman of the Board, the President, any
Vice President and the chief financial officer of each of NFC and the
Seller stating that (A) the representations
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and warranties of NFC or the Seller, as the case may be, contained in this
Agreement, the Purchase Agreement, the Custodian Agreement, the
Administration Agreement and the Further Transfer and Servicing Agreements
are true and correct on and as of the Closing Date, (B) NFC or the Seller,
as the case may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and under
such agreements at or prior to the Closing Date, (C) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of
his or her knowledge, are contemplated by the Commission, and (D) since
July 31, 1995, there has been no material adverse change in the financial
position or results of operations of NFC, the Seller or the Trust or any
change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of NFC, the Seller or the Trust except as set forth in or
contemplated by the Registration Statement and the Prospectus. Any officer
making such certification may rely upon his or her knowledge as to the
proceedings pending or threatened.
(j) The Notes and the Certificates shall have been given a rating by
S&P or Moody's, that is at least equal to or better than the rating
required for such class of Securities as set forth in the Prospectus
Supplement.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such exchanges or
such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, or trading in
securities of NFC on any exchange or in the over-the-counter market shall
have been suspended or (ii) a general moratorium on commercial banking
activities shall have been declared by Federal or New York State
authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by notice given to
and received by the Seller prior to delivery of and payment for the Securities
if, prior to that time, any of
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the events described in Section 5(k) shall have occurred or any of the
conditions described in Section 5(i) or 5(j) shall not be satisfied.
7. DEFAULTING UNDERWRITERS. (a) If, any one or more of the
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter hereunder on the Closing Date, and such failure
constitutes a default in the performance of its or their obligations under this
Agreement, the Representative may make arrangements for the purchase of such
Securities by other persons satisfactory to the Seller and the Representative,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, then each remaining non-defaulting Underwriter shall be severally
obligated to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date in the respective
proportions which the principal amount of Securities set forth opposite the name
of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Securities on the Closing Date if the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds one-eleventh of the aggregate principal
amount of the Securities to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total more than
110% of the principal amount of the Securities which it agreed to purchase on
the Closing Date pursuant to the terms of Section . If the foregoing maximums
are exceeded and the remaining Underwriters or other underwriters satisfactory
to the Representative and the Seller do not elect to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Seller, except that the Seller will continue to be
liable for the payment of expenses to the extent set forth in Sections 8 and 12
and except that the provisions of Sections 9 and 10 shall not terminate and
shall remain in effect. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 1 hereto who, pursuant to this
Section , purchases Securities which a defaulting Underwriter agreed but failed
to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have for damages caused by its default. If other
underwriters are obligated or agree to purchase the Securities of a defaulting
Underwriter, either the Representative or the Seller may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Seller or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement, and the Seller agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus that effects any such
changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) notice shall have
been given pursuant to Section terminating the obligations of the Underwriters
hereunder, (b) the Seller shall fail to tender the Securities for delivery to
the Underwriters for any reason permitted under this Agreement or (c) the
Underwriters shall decline to purchase the Securities
12
for any reason permitted under this Agreement, the Seller shall reimburse the
Underwriters for the fees and expenses of their counsel and for such other out-
of-pocket expenses as shall have been reasonably incurred by them in connection
with this Agreement and the proposed purchase of the Securities, and upon demand
the Seller shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Section by reason of the default of one or
more Underwriters, the Seller shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
9. INDEMNIFICATION. (a) NFC and the Seller shall, jointly and
severally, indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act (collectively referred to for the purposes of this Section 9 and Section 10
as the Underwriter) against any loss, claim, damage or liability, joint or
several, to which that Underwriter may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage or liability (or any action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus supplement, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made,
not misleading, and shall reimburse each Underwriter for any legal or other
expenses reasonably incurred by that Underwriter in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage or liability
(or any action in respect thereof) as such expenses are incurred; provided,
however, that neither NFC nor the Seller shall be liable in any such case to the
extent that any such loss, claim, damage or liability (or any action in respect
thereof) arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary prospectus
supplement, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with the Underwriters'
Information.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Seller, each of its directors, each officer of the Seller who
signed the Registration Statement and each person, if any, who controls the
Seller within the meaning of Section 15 of the Securities Act (collectively
referred to for the purposes of this Section 9 and Section 10 as the Seller),
against any loss, claim, damage or liability, joint or several, to which the
Seller may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage or liability (or any action in respect thereof) arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus supplement, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Seller by or on behalf
of such Underwriter specifically for use therein, and shall reimburse the Seller
for any legal or other expenses reasonably incurred by the Seller in connection
with
13
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage or liability (or
any action in respect thereof) as such expenses are incurred. The parties
acknowledge and agree that the written information furnished to the Seller
through the Representative by or on behalf of the Underwriters (the
"Underwriters' Information") consists solely of the paragraph below the
footnotes on the cover page of the Prospectus Supplement concerning the terms of
the offering and the second paragraph of text and the following table under the
caption "Underwriting" in the Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representative shall have the right to employ one counsel to represent
jointly the Representative and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against NFC or the
Seller under this Section 9 if, in the reasonable judgment of the
Representative, it is advisable for the Representative and those Underwriters
and controlling persons to be jointly represented by separate counsel because
there may be one or more legal defenses available to such parties which are
different from or additional to those available to the indemnifying party, and
in that event the fees and expenses of such separate counsel shall be paid by
NFC or the Seller. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 9(a) and 9(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
The obligations of NFC, the Seller and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability which NFC,
the Seller or the Underwriters, as the case may be, may otherwise have.
14
10. CONTRIBUTION. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or (b), then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by NFC and the Seller on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the allocation provided by clause
(i) above 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 NFC and the Seller on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative benefits received by NFC and the Seller
on the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Seller bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus Supplement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by NFC or the Seller on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission.
NFC , the Seller and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 10 were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability referred to above in this Section 10 shall be deemed to include,
subject to the limitations on the fees and expenses of separate counsel set
forth in Section 9, for purposes of this Section 10, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim or any action in respect thereof. Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public less the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to indemnify as
provided in Section 9 and contribute as provided in this Section 10 are several
in proportion to their respective underwriting obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, NFC, the Seller,
and their
15
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, NFC and the Seller and their respective successors and
the controlling persons and officers and directors referred to in Sections 9 and
10 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. EXPENSES. The Seller agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any preliminary prospectus supplement, the Prospectus and any
amendment or supplement to the Prospectus, including, without limitation, the
Prospectus Supplement, all as provided in this Agreement; (d) the costs of
printing, reproducing and distributing this Agreement and any other underwriting
and selling group documents by mail, telex or other means of communications; (e)
the fees and expenses of qualifying the Securities under the securities laws of
the several jurisdictions as provided in Section and of preparing, printing and
distributing Blue Sky Memoranda and Legal Investment Surveys (including related
fees and expenses of counsel to the Underwriters); (f) any fees charged by S&P
and Xxxxx'x for rating the Securities; (g) all fees and expenses of the Owner
Trustee and the Indenture Trustee and their respective counsel; and (h) all
other costs and expenses incident to the performance of the obligations of the
Seller under this Agreement; provided that, except as otherwise provided in this
Section 12 and in Section 8, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of NFC, the Seller and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any (i) termination or cancellation of this Agreement, (ii) any investigation
made by or on behalf of any of them or any person controlling any of them or
(iii) acceptance of and payment for the Securities.
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
facsimile transmission and confirmed to Chemical Securities Inc., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxx Xxxxx,
with a copy to the Legal Department;
16
(b) if to the Seller, shall be delivered or sent by mail or facsimile
transmission and confirmed to the address of the Seller set forth in the
Registration Statement, Attention: General Counsel, with a copy to NFC at
the address of the Servicer set forth in the Registration Statement,
Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 9(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Seller shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by the Representative.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17
If the foregoing is in accordance with your understanding of the
agreement between the Seller and NFC and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
By /s/ X. Xxxxx Xxxx
----------------------------------------
Name: X.X. Xxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION
By /s/ X. Xxxxx Xxxx
----------------------------------------
Name: X.X. Xxxx
Title: Vice President and Treasurer
Accepted:
CHEMICAL SECURITIES INC.
For Itself and as Representative
of the Several Underwriters
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Authorized Signatory
18
SCHEDULE 1
Principal Principal Principal
Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3
Underwriter Notes Notes Notes
--------- --------- ---------
Chemical
Securities Inc. $30,575,000 $25,000,000 $71,081,250
BA Securities
Inc. $30,575,000 $25,000,000 $71,081,250
X.X Xxxxxx
Securities Inc. $30,575,000 $25,000,000 $71,081,250
NationsBanc
Capital Markets
Inc. $30,575,000 $25,000,000 $71,081,250
Principal Amount
Underwriter of Certificates
---------------
Chemical Securities Inc. $9,095,000
X.X. Xxxxxx Securities Inc. $9,095,000
