EXHIBIT 1.1
Execution Copy
NAVISTAR FINANCIAL 2003-A OWNER TRUST
$500,000,000 Asset Backed Notes
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(SELLER)
UNDERWRITING AGREEMENT
----------------------
May 20, 2003
Banc One Capital Markets, Inc.
as Representative of the
Several Underwriters named
on Schedule 1 hereto,
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Navistar Financial Retail Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to form a Delaware statutory trust,
Navistar Financial 2003-A 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)
$85,000,000 principal amount of its Class A-1 1.25% Asset Backed Notes (the
"Class A-1 Notes"), (ii) $175,000,000 principal amount of its Class A-2 1.31%
Asset Backed Notes (the "Class A-2 Notes"), (iii) $113,000,000 principal amount
of its Class A-3 1.73% Asset Backed Notes (the "Class A-3 Notes") and (iv)
$108,250,000 principal amount of its Class A-4 2.24% Asset Backed Notes (the
"Class A-4 Notes"; together with the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes, the "Class A Notes") and (v) $18,750,000 principal amount
of its 3.08% 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, May 1,
2003 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, including monies on deposit in
the Reserve Account, the Pre-Funding Account and the Negative Carry Account and
the proceeds thereof, the
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proceeds, if any, of Dealer Liability, International Purchase Obligations and
any Guaranties, the proceeds from claims on certain insurance policies, 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 May 15, 2003 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 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,
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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 and (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 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.
(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
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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
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
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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 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, 99.89000 % of the principal amount thereof, (ii) with
respect to the Class A-2 Notes, 99.83070% of the principal amount thereof, (iii)
with respect to the Class A-3 Notes, 99.76575% of the principal amount thereof,
(iv) with respect to the Class A-4 Notes, 99.72785% of the principal amount
thereof and (v) with respect to the Class B Notes, 99.60511% 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 Banc One Capital Markets, Inc., as
representative of the Underwriters (the "Representative") and the Seller, at
9:00 A.M., Chicago time, on June 5, 2003, 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 by
book-entries on the records of DTC and participating members thereof. Definitive
certificates representing the Notes will be available only under limited
circumstances.
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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 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
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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") 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.
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(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, if any.
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 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.
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(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
2003-A Portfolio Supplement and the Series 2003-A Portfolio
Certificate), the Lease Purchase Agreement, the Purchase Agreement, the
Administration Agreement, 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
2003-A Portfolio Interest and the Series 2003-A 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 2003-A Portfolio Supplement, the Series 2003-A
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 dated the Closing Date, in
form and substance reasonably satisfactory to the Representative.
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(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) 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.
(m) 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 January 31, 2003, 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.
(n) 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.
(o) 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
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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.
(p) 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(o) shall have occurred or any of the conditions described in Section 6(m) or
6(n) 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 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
12
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 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
13
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 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 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
14
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 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
15
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 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 2003-A 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) the road show relating to the Notes
16
and the Underwriters shall pay NFC's and the Seller's out-of-pocket expenses
incurred in connection with the road show.
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 Banc One Capital
Markets, Inc., Attention: Xxxxxx Xxxxx, 0 Xxxx Xxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000;
(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. 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.
17
If the foregoing is in accordance with your understanding of the
agreement between the Seller and NFC and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
By: /s/ 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:
BANC ONE CAPITAL MARKETS, INC.
For Itself and as Representative
of the Several Underwriters
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
Authorized Signatory
SCHEDULE 1
UNDERWRITERS
BANC ONE
CAPITAL CITIGROUP SCOTIA
PRINCIPAL MARKETS, GLOBAL CAPITAL
AMOUNT INC. MARKETS INC (USA) INC
---------------- --------------- --------------- ---------------
Class A-1 Notes 28,333,334 28,333,333 28,333,333
Class A-2 Notes 58,333,334 58,333,333 58,333,333
Class A-3 Notes 37,666,668 37,666,666 37,666,666
Class A-4 Notes 36,083,334 36,083,333 36,083,333
Class B Notes 18,750,000
