Exhibit 1.1
NAVISTAR FINANCIAL 1996-A OWNER TRUST
$439,245,000 Asset Backed Notes
$20,698,869.53 Asset Backed Certificates
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(SELLER)
UNDERWRITING AGREEMENT
May 22, 1996
X.X XXXXXX SECURITIES INC.
As Representative of the
Several Underwriters named
on Schedule I hereto,
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Navistar Financial Retail Receivables Corporation, a
Delaware corporation (the "Seller"), proposes to form an owner
trust, Navistar Financial 1996-A Owner Trust (the "Trust"),
pursuant to a Trust Agreement (the "Trust Agreement") to be dated
as of May 30, 1996 between the Seller and Chemical Bank Delaware,
as owner trustee (the "Owner Trustee"), which will issue (i)
$92,000,000.00 principal amount of its 5.25% Class A-1 Asset
Backed Notes (the "Class A-1 Notes") and (ii) $347,245,000.00
principal amount of its 6.35% Class A-2 Notes (the "Class A-2
Notes"; and together with the Class A-1 Notes, the "Notes")
pursuant to an Indenture to be dated as of May 30, 1996 (the
"Indenture") between the Trust and The Bank of New York, as
trustee (the "Indenture Trustee"), and (iv) $20,698,869.53
principal amount of its 6.50% 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 April 30, 1996 (the
"Cutoff Date"), security interests in the vehicles financed
thereby, certain accounts, 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
Receivables will be transferred to the Trust by the Seller in
exchange for the Securities and the 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 May 30, 1996 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
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 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 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, 99.8359375% of the
principal amount thereof, (ii) with respect to the Class A-2
Notes, 99.77% of the principal amount thereof and (iii) with
respect to the Certificates, 99.40625% 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 X.X. Xxxxxx Securities Inc., as
representative of the Underwriters (the "Representative") and the
Seller, at 10:00 A.M., New York City time, on
May 30, 1996, 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
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 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 Security holders
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.
(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 Services ("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.
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.
(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 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
April 30, 1996, 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 Xxxxx'x, 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 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 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
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 7,
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 6 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 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 7 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 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.
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 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 4(h) 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 X.X.
Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Mr. Xxx Xxxxx, with a copy to the
Legal Department;
(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.
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
Name: X.X. Xxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION
By
Name: X.X. Xxxx
Title: Vice President and Treasurer
Accepted:
X.X. XXXXXX SECURITIES INC.
For Itself and as Representative
of the Several Underwriters
By
Authorized Signatory
SCHEDULE 1
Principal Principal
Amount of Amount of
Class A-1 Class A-2
Underwriter Notes Notes
X.X. Xxxxxx
Securities Inc. $15,500,000 $58,245,000
BA Securities,
Inc. $15,300,000 $57,800,000
Chase
Securities Inc. $15,300,000 $57,800,000
CS First Boston
Corporation $15,300,000 $57,800,000
First Chicago
Capital Markets,
Inc. $15,300,000 $57,800,000
NationsBanc
Capital Markets
Inc. $15,300,000 $57,800,000
Principal Amount
Underwriter of Certificates
X.X. Xxxxxx
Securities Inc. $10,245,500
Chase Securities Inc. $10,245,500
