Exhibit 1.1
EXECUTION VERSION
NAVISTAR FINANCIAL 2002-B OWNER TRUST
$850,000,000 Asset Backed Notes
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(SELLER)
UNDERWRITING AGREEMENT
November 6, 2002
X.X. Xxxxxx Securities Inc.
as Representative of the
Several Underwriters named
on Schedule 1 hereto,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Navistar Financial Retail Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to form a Delaware statutory trust,
Navistar Financial 2002-B Owner Trust (the "Trust"), pursuant to a Trust
Agreement (the "Trust Agreement") to be dated as of the Closing Date (as
hereinafter defined), between the Seller and Chase Manhattan Bank USA, National
Association, as owner trustee (the "Owner Trustee"), which will issue (i)
$162,000,000 principal amount of its Class A-1 1.62% Asset Backed Notes (the
"Class A-1 Notes"), (ii) $230,000,000 principal amount of its Class A-2 1.92%
Asset Backed Notes (the "Class A-2 Notes"), (iii) $215,000,000 principal amount
of its Class A-3a Floating Rate Asset Backed Notes (the "Class A-3a Notes"),
(iv) $25,000,000 principal amount of its Class A-3b 2.64% Asset Backed Notes
(the "Class A-3b Notes), (v) $184,000,000 principal amount of its Class A-4
3.52% Asset Backed Notes (the "Class A-4 Notes"; together with the Class A-1
Notes, the Class A-2 Notes, the Class A-3a Notes and the Class A-3b Notes, the
"Class A Notes") and (v) $34,000,000 principal amount of its 5.27% Class B Notes
(the "Class B Notes"; together with the Class A Notes, the "Notes") pursuant to
an Indenture to be dated as of the Closing Date (the "Indenture") between the
Trust and The Bank of New York, as indenture trustee (the "Indenture Trustee").
The Trust will also issue one or more certificates (the "Certificates") to the
Seller representing the equity of the Trust. The assets of the Trust will
include, among other things, a pool of commercial retail notes evidencing loans
secured by new and used medium and heavy duty trucks, truck chassis, buses and
trailers and a beneficial ownership interest in a pool of retail leases of new
and used medium and heavy duty trucks, truck chassis, buses and trailers (the
"Receivables"), certain monies due or received thereunder on or after (i) for
the Initial Receivables, October 1, 2002 and (ii) for any Subsequent
Receivables, the date designated by the Seller that precedes the related
Subsequent Transfer Date (in each case, the "Cutoff Date"), in the case of
retail notes, security interests in the vehicles financed thereby, and, in the
case of retail leases, a beneficial ownership interest in the vehicles subject
thereto, certain accounts,
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including monies on deposit in the Reserve Account, the Pre-Funding Account and
the Negative Carry Account and the proceeds thereof, the proceeds, if any, of
Dealer Liability, International Purchase Obligations and any Guaranties, the
proceeds from claims on certain insurance policies, rights under the Interest
Rate Swap, the benefits of any lease assignments and the rights of the Seller
under the Purchase Agreement, including rights under the Titling Trust Documents
and the Lease Purchase Agreement. The Initial Receivables will be transferred to
the Trust by the Seller in exchange for the Notes and the Certificates pursuant
to a Pooling Agreement (the "Pooling Agreement") to be dated as of the Closing
Date between the Seller and the Trust, and the Receivables will be serviced for
the Trust by Navistar Financial Corporation (in its capacity as Servicer, the
"Servicer") pursuant to a Servicing Agreement (the "Servicing Agreement") to be
dated as of the Closing Date among the Seller, the Servicer, the Trust, the
Portfolio Trustee, the Collateral Agent and certain other parties. Capitalized
terms used and not otherwise defined herein shall have the meanings given them
in the Pooling Agreement.
This is to confirm the agreement concerning the purchase of the Notes
from the Seller by the several Underwriters named in Schedule 1 hereto (the
"Underwriters").
1. Representations, Warranties and Agreements of Nfc and the Seller.
Navistar Financial Corporation ("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. 333-67112) 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) of the Rules and Regulations a final
prospectus supplement dated the date hereof (the "Prospectus Supplement")
to the prospectus dated the date hereof, relating to the Notes and the
method of distribution thereof. Copies of such registration statements, any
amendment or supplement thereto, including the Term Sheet dated November 1,
2002 relating to the Notes (the "Term Sheet") disseminated by the
Underwriters, such prospectus and the Prospectus Supplement have been
delivered to you. Such registration statements, including exhibits thereto,
and the Term Sheet as incorporated by reference therein, 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. The Seller filed the Term Sheet on Form
8-K with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), within two business days of its dissemination
by the Underwriters.
(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
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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 misleading; on the Closing Date, 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, (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) or (iii) the information contained in the
Swap Counterparty's 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 Harco Leasing in Sections
3.02 and 3.03 of the Lease Purchase Agreement will be true and correct as
of the Closing Date.
(e) The representations and warranties of the Seller in Section 3.03
of the Purchase Agreement and Section 3.01 of the Pooling Agreement will be
true and correct as of the Closing Date.
(f) The representations and warranties of NFC in Sections 3.01, 3.02
and 3.04 of the Purchase Agreement and of the Servicer in Section 5.01 of
the Servicing Agreement will be true and correct as of the Closing Date.
(g) 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.
(h) This Agreement has been duly executed and delivered by NFC and the
Seller.
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(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 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
Notes 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 Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Notes 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
Notes, (ii) seeking to prevent the issuance of any of the Notes 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 Notes or this Agreement, or (iv)
that may adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Notes.
(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 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
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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 Titling Trust Documents, the Lease Purchase Agreement, the
Purchase Agreement, the Administration Agreement, the Interest Rate Swap
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 the Notes 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,
99.89 % of the principal amount thereof, (ii) with respect to the Class A-2
Notes, 99.83197% of the principal amount thereof, (iii) with respect to the
Class A-3a Notes, 99.775% of the principal amount thereof, (iv) with respect to
the Class A-3b Notes, 99.76654% of the principal amount thereof, (v) with
respect to the Class A-4 Notes, 99.71743% of the principal amount thereof and
(vi) with respect to the Class B Notes, 99.62349% of the principal amount
thereof.
The Seller shall not be obligated to sell or deliver any of the Notes
except upon payment for all the Notes to be purchased as provided herein.
3. Delivery of and Payment for the Notes. Delivery of and payment for
the Notes shall be made at the office of Xxxxxxxx & Xxxxx, or at such other
place as shall be agreed upon by X.X. Xxxxxx Securities Inc., as representative
of the Underwriters (the "Representative") and the Seller, at 9:00 A.M., Chicago
time, on November 19, 2002, 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 Notes 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 class of the Notes 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 Notes will be represented
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by book-entries on the records of DTC and participating members thereof.
Definitive certificates representing the Notes 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) 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 Notes is
required to be delivered under the Securities Act: to 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 Notes 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
Notes 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 Notes 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 Notes, 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 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
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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
Titling Trust Documents, the Lease Purchase Agreement, the Purchase
Agreement, the Administration Agreement and the Further Transfer and
Servicing Agreements) and (ii) any preliminary prospectus supplement, the
Term Sheet, 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 Notes are outstanding, to furnish to the
Underwriters (i) copies of all materials furnished by the Trust to the
Noteholders 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 Harco Leasing, NFC, the Titling Trust, 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 Notes 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 Notes; 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 commercial retail notes evidencing loans secured by, or
retail leases of, new and used medium and heavy duty trucks, truck chassis,
buses and trailers (other than the Notes) without the prior written consent
of the Representative.
(i) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as no Underwriter shall maintain a
secondary market in the Notes, 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 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 Notes by Standard & Poor's Ratings Service ("S&P") and Xxxxx'x
Investors Service ("Moody's")
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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, to 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
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 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 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 Agreement.
5. Representation of the Underwriters. Each Underwriter hereby
represents and warrants that the Term Sheet constitutes the only "Series Term
Sheet" (as such term is defined in the no-action letter addressed to Greenwood
Trust Company, Discover Card Master Trust I dated April 5, 1996) and the only
"Computational Materials," "ABS Term Sheets," "Structural Term Sheets" or
"Collateral Term Sheet" (as such terms are defined in the no-action letters
addressed to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al. dated May 20, 1994
and to the Public Securities Association dated February 17, 1995) disseminated
by it in connection with offering of the Notes contemplated hereunder.
6. 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) of the
Rules and Regulations within the time period prescribed by such rule.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Notes, the Titling
Trust Documents, the Lease Purchase Agreement, the Purchase Agreement, the
Administration Agreement, the Interest Rate Swap, 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
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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 opinions, as counsel to the Seller, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory
to the Representative, regarding general corporate matters, enforceability
of the Notes, the Titling Trust Documents (other than the Titling Trust
Agreement, the Series 2002-B Portfolio Supplement and the Series 2002-B
Portfolio Certificate), the Lease Purchase Agreement, the Purchase
Agreement, the Administration Agreement, the Interest Rate Swap and the
Further Transfer and Servicing Agreements (other than the Trust Agreement),
creation and perfection of security interests, securities laws and other
matters.
(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 with respect to the characterization
of the transfer of the Series 2002-B Portfolio Interest and the Series
2002-B Portfolio Certificate by Harco Leasing to NFC pursuant to the Lease
Purchase Agreement and the characterization of the transfer of the
Receivables and the Related Security with respect to such Receivables by
NFC to the Seller pursuant to the Purchase Agreement as a sale, the
non-consolidation of the Titling Trust with Harco Leasing or Navistar
Financial 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) Pryor, Cashman, 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 form and
substance reasonably satisfactory to the Representative.
(g) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the
Representative their written opinion, as counsel to the Titling Trust,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Representative with respect to the
Titling Trust, including the enforceability of the Titling Trust Agreement,
the Series 2002-B Portfolio Supplement, the Series 2002-B Portfolio
Certificate and the Trust Agreement.
(h) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the
Representative their written opinion, as counsel to the Trust, addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representative.
(i) Xxxxx, Xxxxxx & Xxxxxx shall have furnished to the Representative
their written opinion, as counsel to the Indenture Trustee, addressed to
the Underwriters and
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dated the Closing Date, in form and substance reasonably satisfactory to
the Representative.
(j) Xxxxxx Xxxxxxxx LLP, counsel to the Delaware Trustee, shall have
furnished to the Representative their written opinion, as counsel to the
Delaware Trustee, addressed to the Underwriters and dated the Closing Date,
in form and substance reasonably satisfactory to the Representative.
(k) Xxxxxx & Xxxxxxx, counsel to the Collateral Agent, who shall be
reasonably acceptable to the Representative, shall have furnished to the
Representative his written opinion, as counsel to the Collateral Agent,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Representative.
(l) Xxxxxxx Xxxx, counsel to JPMorgan Chase Bank, as the party to the
Interest Rate Swap shall have furnished to the Representative their written
opinion, as counsel to JPMorgan Chase Bank, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory
to the Representative,
(m) 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.
(n) 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 Harco Leasing,
NFC and the Seller stating that (A) the representations and warranties of
Harco Leasing, NFC or the Seller, as the case may be, contained in this
Agreement, the Purchase Agreement, the Titling Trust Documents, the Lease
Purchase Agreement, the Administration Agreement and the Further Transfer
and Servicing Agreements are true and correct on and as of the Closing
Date, (B) Harco Leasing, 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, 2002, there has been
no material adverse change in the financial position or results of
operations of Harco Leasing, 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 Harco Leasing, 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.
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(o) The Notes shall have been given a rating by S&P or Xxxxx'x that is
at least equal to or better than the rating required for such class of
Notes as set forth in the Prospectus Supplement.
(p) 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
Notes on the terms and in the manner contemplated in the Prospectus.
(q) The Certificates shall have been delivered to the Seller in
accordance with the Trust Agreement.
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.
7. 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 Notes if,
prior to that time, any of the events described in Section 6(q) shall have
occurred or any of the conditions described in Section 6(o) or 6(p) shall not be
satisfied.
8. Defaulting Underwriters.
(a) If, any one or more of the Underwriters shall fail to purchase and
pay for any of the Notes 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 Notes 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 Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase on the Closing Date in the
respective proportions which the principal amount of the Notes set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the aggregate principal amount of the Notes 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
12
purchase any of the Notes on the Closing Date if the aggregate principal
amount of the Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds one-eleventh of the aggregate
principal amount of the Notes 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 Notes which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. 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 Notes 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 9 and 13 and except that the
provisions of Sections 10 and 11 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 8, purchases
Notes 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 Notes 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.
9. Reimbursement of Underwriters' Expenses. If (a) notice shall have
been given pursuant to Section 7 terminating the obligations of the Underwriters
hereunder, (b) the Seller shall fail to tender the Notes for delivery to the
Underwriters for any reason permitted under this Agreement or (c) the
Underwriters shall decline to purchase the Notes 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 Notes, and upon demand the Seller shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 8 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.
10. 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 10 and Section
11 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
13
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; provided, further, 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 the Prospectus or in any amendment or supplement thereto in
reliance upon and in conformity with the Swap Counterparty's Information.
The parties acknowledge and agree that the "Swap Counterparty's
Information" consists solely of the information under the heading "The
Trust Swap - The Swap Counterparty" in the Prospectus Supplement.
(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 10 and Section
11 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 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 second paragraph of text and the following table, the sixth
paragraph of text and the last sentence
14
of the last paragraph of text, each under the caption "Underwriting" in the
Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under this Section
10 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 10, 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 10 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 10. 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 10 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 10 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 10(a) and 10(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 10 and in Section 11 are in addition to any other liability which NFC,
the Seller or the Underwriters, as the case may be, may otherwise have.
11. Contribution. If the indemnification provided for in Section 10 is
unavailable or insufficient to hold harmless an indemnified party under Section
10(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
15
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 Notes 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 Notes 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 Notes 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 11 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 11 shall be deemed to include,
subject to the limitations on the fees and expenses of separate counsel set
forth in Section 10, for purposes of this Section 11, 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 11, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes 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 10 and contribute as provided in this Section 11 are several
in proportion to their respective underwriting obligations and not joint.
12. 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 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 10 and 11 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.
13. Expenses. The Seller agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Notes and any taxes
16
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 printing, reproducing and
distributing this Agreement, any other underwriting and selling group documents
and the Term Sheet by mail, telex or other means of communications; (d) the fees
and expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing Blue Sky Memoranda and Legal Investment Surveys (including related
fees and expenses of counsel to the Underwriters); (e) any fees charged by S&P
and Xxxxx'x for rating the Notes; (f) all fees and expenses of the Titling Trust
General Interest Trustee, the 2002-B Portfolio Interest Trustee, the Collateral
Agent, the Owner Trustee and the Indenture Trustee and their respective counsel;
and (g) 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 13 and in Section 9, the Underwriters shall
pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Notes which they may sell, and the expenses
of (x) distributing the Prospectus to the Underwriters and the purchasers of the
Notes, (y) advertising any offering of the Notes made by the Underwriters and
(z) recording and broadcasting the Bloomberg road show relating to the Notes.
14. 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 Notes 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 Notes.
15. 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 X.X. Xxxxxx Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxx Xxxxxxx;
(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 10(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.
16. 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.
17
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
18. 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.
19. 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.
18
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/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
Accepted:
X.X. XXXXXX SECURITIES INC.
For Itself and as Representative
of the Several Underwriters
By: /s/ Xxxx Xxx
----------------------------
Authorized Signatory
Xxxx Xxx
Vice President
SCHEDULE 1
UNDERWRITERS
-----------------------------------------------------------------------------
Banc of Banc One
X.X. Xxxxxx America Capital Salomon Scotia
Principal Securities Securities Markets, Xxxxx Capital
Amount Inc. LLC Inc. Barney Inc. (USA) Inc.
-----------------------------------------------------------------------------
Class A-1 32,400,000 32,400,000 32,400,000 32,400,000 32,400,000
Notes
-----------------------------------------------------------------------------
Class A-2 46,000,000 46,000,000 46,000,000 46,000,000 46,000,000
Notes
-----------------------------------------------------------------------------
Class A-3a 43,000,000 43,000,000 43,000,000 43,000,000 43,000,000
Notes
-----------------------------------------------------------------------------
Class A-3b 5,000,000 5,000,000 5,000,000 5,000,000 5,000,000
Notes
-----------------------------------------------------------------------------
Class A-4 36,800,000 36,800,000 36,800,000 36,800,000 36,800,000
Notes
-----------------------------------------------------------------------------
Class B 34,000,000
Notes
-----------------------------------------------------------------------------
