EXHIBIT 1.1
NAVISTAR FINANCIAL 2002-A OWNER TRUST
$500,000,000 Asset Backed Notes
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
(SELLER)
UNDERWRITING AGREEMENT
----------------------
April 16, 2002
BANC ONE CAPITAL MARKETS, INC.
as Representative of the
Several Underwriters named
on Schedule 1 hereto,
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Navistar Financial Retail Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to form a Delaware common law trust,
Navistar Financial 2002-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)
$73,000,000 principal amount of its Class A-1 1.96% Asset Backed Notes (the
"Class A-1 Notes"), (ii) $182,000,000 principal amount of its Class A-2 3.07%
Asset Backed Notes (the "Class A-2 Notes"), (iii) $104,000,000 principal amount
of its Class A-3 4.09% Asset Backed Notes (the "Class A-3 Notes"), (iv)
$121,000,000 principal amount of its Class A-4 4.76% 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) $20,000,000 principal amount
of its 4.95% 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 Owner Trustee, acting on behalf of 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
(the "Receivables"), certain monies due or received thereunder on or after (i)
for the Initial Receivables, April 1, 2002 and (ii) for any Subsequent
Receivables, the date designated by the Seller that precedes the related
Subsequent Transfer Date (in each case, the "Cutoff Date"), security interests
in the vehicles financed thereby, certain accounts, including monies on deposit
in the Pre-Funding Account and the Negative Carry Account and the proceeds
thereof, the proceeds, if any, of Dealer Liability, 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 related Purchase
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Agreement and the related Custodian Agreement. The Initial Receivables will be
transferred to the Trust by the Seller in exchange for the Notes and the
Certificates and the Receivables will be serviced for the Trust by Navistar
Financial Corporation (in its capacity as Servicer, the "Servicer") pursuant to
a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of the Closing Date among the Seller, the Servicer and the Owner
Trustee, acting on behalf of 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 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) Two registration statements on Form S-3 (Nos.333-62445 and
333-67112) have been filed by the Seller with the Securities and
Exchange Commission (the "Commission") and have become effective under
the Securities Act of 1933, as amended (the "Securities Act"). Such
registration statements 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 April 16, 2002 (the "Prospectus Supplement") to the
prospectus dated April 16, 2002, 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 April
15, 2002 relating to the Notes (the "Term Sheet") disseminated by the
Underwriters, such prospectus and the Prospectus Supplement have been
delivered to you. Such registration statements, including exhibits
thereto, and the Term Sheet as incorporated by reference therein, and
such prospectus, as amended or supplemented to the date hereof, and as
further supplemented by the Prospectus Supplement, are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively. The conditions to the use of a registration statement on
Form S-3 under the Securities Act have been satisfied. The Seller filed
the Term Sheet on Form 8-K with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
within two business days of its dissemination by the Underwriters.
(b) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations and
the Trust Indenture 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
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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 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 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 Owner
Trustee, in its capacity as owner trustee of 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.
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(i) 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.
(j) 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.
(k) 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.
(l) 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.
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(m) 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.
(n) 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.
(o) None of NFC, the Seller or anyone acting on its behalf has
taken any action that would require qualification of the Trust
Agreement under the Trust Indenture Act.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, the Seller agrees to issue and sell to each of the
Underwriters, severally and not jointly, and each of the Underwriters, severally
and not jointly, agrees to purchase from the Seller, the respective principal
amount of the Notes set forth opposite the name of such Underwriter in Schedule
1 hereto at a purchase price equal to (i) with respect to the Class A-1 Notes,
99.89% of the principal amount thereof, (ii) with respect to the Class A-2
Notes, 99.83881% of the principal amount thereof, (iii) with respect to the
Class A-3 Notes, 99.76001% of the principal amount thereof, (iv) with respect to
the Class A-4 Notes, 99.72822% of the principal amount thereof and (v) with
respect to the Class B Notes, 99.62393% 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, 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 April 30, 2002, or at such other date or time, not
later than five full business days thereafter, as shall be agreed upon by the
Representative and the Seller (such date and time being referred to herein as
the "Closing Date"). On the Closing Date, the Seller shall deliver or cause to
be delivered to the Representative for the account of each Underwriter the Notes
against payment to or upon the order of the Seller of the purchase price in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, each class of the
Notes shall be represented by one or more global certificates registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"). The
interest of the beneficial owners of the Notes will be represented by
book-entries on the records of DTC and participating members thereof. Definitive
certificates representing the Notes will be available only under limited
circumstances.
4. FURTHER AGREEMENTS OF THE SELLER. The Seller agrees with each of the
several Underwriters:
(a) To file the Prospectus Supplement with the Commission
pursuant to and in accordance with Rule 424(b) of the Rules and
Regulations within the time period
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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
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 Term Sheet, the Prospectus and any amendment or supplement thereto.
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(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 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, 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 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 Notes by Standard & Poor's Ratings Service ("S&P") and
▇▇▇▇▇'▇ 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.
(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 and Servicing Agreement, (iii) a copy
of the Opinion of Counsel with respect to the transfer of the
Subsequent Receivables to be transferred to the Trust on
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such Subsequent Transfer Date to be delivered to the Rating Agencies
pursuant to Section 2.02(b)(ix) of the Pooling and Servicing Agreement,
(iv) a copy of the written confirmation from a firm of independent
nationally recognized certified public accountants to be delivered to
the Trust and the Indenture Trustee pursuant to Section 2.02(b)(x) of
the Pooling and Servicing Agreement and (v) a copy of the written
confirmation of S&P received by the Seller pursuant to Section
2.02(b)(xi) of the Pooling and Servicing Agreement.
5. 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 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 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 Purchase
Agreement, the Custodian Agreement and the Further Transfer and
Servicing Agreements, creation and perfection of security interests,
securities laws and other matters.
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(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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) ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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.
(h) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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.
(i) 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.
(j) 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 January 31, 2002, there has been no
material adverse change in the financial position or results of
operations of NFC, the Seller or the Trust or any
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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.
(k) The Notes shall have been given a rating by S&P or Moody's
that is at least equal to or better than the rating required for such
class of Notes as set forth in the Prospectus Supplement.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on either of
such exchanges or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having
jurisdiction, or trading in securities of NFC on any exchange or in the
over-the-counter market shall have been suspended or (ii) a general
moratorium on commercial banking activities shall have been declared by
Federal or New York State authorities or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a
national emergency or war or such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes on the terms and
in the manner contemplated in the Prospectus.
(m) 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(l) shall have
occurred or any of the conditions described in Section 6(j) or 6(k) 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
11
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 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.
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(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 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 fifth paragraph of text
and the last sentence
13
of the last paragraph of text, each under the caption "Underwriting" in
the Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representative shall have
the right to employ one counsel to represent jointly the Representative
and those other Underwriters and their respective controlling persons
who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against NFC or the
Seller under this Section 10 if, in the reasonable judgment of the
Representative, it is advisable for the Representative and those
Underwriters and controlling persons to be jointly represented by
separate counsel because there may be one or more legal defenses
available to such parties which are different from or additional to
those available to the indemnifying party, and in that event the fees
and expenses of such separate counsel shall be paid by NFC or the
Seller. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 10(a) and 10(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
The obligations of NFC, the Seller and the Underwriters in this Section
10 and in Section 11 are in addition to any other liability which NFC, the
Seller or the Underwriters, as the case may be, may otherwise have.
11. CONTRIBUTION. If the indemnification provided for in Section 10 is
unavailable or insufficient to hold harmless an indemnified party under Section
10(a) or (b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or
14
liability (i) in such proportion as shall be appropriate to reflect the relative
benefits received by NFC and the Seller on the one hand and the Underwriters on
the other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of NFC and the Seller on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative benefits received by NFC and the Seller
on the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes purchased under this Agreement (before deducting expenses)
received by the Seller bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by NFC or the Seller on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.
NFC, the Seller and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 11 were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability referred to above in this Section 11 shall be deemed to include,
subject to the limitations on the fees and expenses of separate counsel set
forth in Section 10, for purposes of this Section 11, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim or any action in respect thereof.
Notwithstanding the provisions of this Section 11, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to indemnify as
provided in Section 10 and contribute as provided in this Section 11 are several
in proportion to their respective underwriting obligations and not joint.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, NFC, the Seller,
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, NFC and the Seller and their
respective successors and the controlling persons and officers and directors
referred to in Sections 10 and 11 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
13. EXPENSES. The Seller agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Notes and any taxes
15
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 ▇▇▇▇▇'▇ for rating the Notes; (f) all fees and expenses of the Owner Trustee
and the Indenture Trustee and their respective counsel; and (g) all other costs
and expenses incident to the performance of the obligations of the Seller under
this Agreement; provided that, except as otherwise provided in this Section 13
and in Section 9, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Notes which they may sell, and the expenses of (x) distributing the Prospectus
to the Underwriters and the purchasers of the Notes, (y) advertising any
offering of the Notes made by the Underwriters and (z) recording and
broadcasting the Bloomberg road show relating to the Notes.
14. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of NFC, the Seller and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Notes and shall remain in full force and effect, regardless of
any (i) termination or cancellation of this Agreement, (ii) any investigation
made by or on behalf of any of them or any person controlling any of them or
(iii) acceptance of and payment for the Notes.
15. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail
or facsimile transmission and confirmed to Banc One Capital Markets,
Inc., ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇;
(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.
16
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/ ▇.▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name:
Title:
NAVISTAR FINANCIAL CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name:
Title:
Accepted:
BANC ONE CAPITAL MARKETS, INC.
For Itself and as Representative
of the Several Underwriters
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Authorized Signatory
SCHEDULE 1
UNDERWRITERS
-------------------- ------------------ --------------------- -----------------
Banc One Capital Credit Suisse First ▇.▇. ▇▇▇▇▇▇
Principal Amount Markets, Inc. Boston Corporation Securities Inc.
-------------------- ------------------ --------------------- -----------------
Class A-1 Notes $24,334,000 $24,333,000 $24,333,000
-------------------- ------------------ --------------------- -----------------
Class A-2 Notes $60,668,000 $60,666,000 $60,666,000
-------------------- ------------------ --------------------- -----------------
Class A-3 Notes $34,668,000 $34,666,000 $34,666,000
-------------------- ------------------ --------------------- -----------------
Class A-4 Notes $40,334,000 $40,333,000 $40,333,000
-------------------- ------------------ --------------------- -----------------
Class B Notes $20,000,000
-------------------- ------------------ --------------------- -----------------