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Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
Navistar Financial Securities Corporation
Navistar Financial Dealer Note Master Trust
$[ ]
Class __ Series 200_-_ Floating Rate Dealer Note Asset Backed Certificates
____ __, 2000
[UNDERWRITER NAME]
[UNDERWRITER ADDRESS]
Ladies and Gentlemen:
Navistar Financial Securities Corporation, a Delaware corporation (the
"Company"), as originator of the Navistar Financial Dealer Note Master Trust
(the "Master Trust"), proposes, subject to the terms and conditions stated
herein, to cause to be issued and sold to you (the "Underwriter") an aggregate
of $ [_____] principal amount of the Class __ Series 200_-_ Floating Rate Dealer
Note Asset Backed Certificates (the "Class _ Securities"). The Class __
Securities will have an Expected Payment Day of [_____] and will bear interest
at LIBOR plus [___]. It is understood that the Company is currently entering
into a Class _ Underwriting Agreement dated the date hereof (the "Class _
Underwriting Agreement") between the Company and [Other Class Underwriter] ("the
"Class _ Underwriter") providing for the sale of an aggregate of $ [_____]
principal amount of the Class __ Series 200_-_ Floating Rate Dealer Note Asset
Backed Certificates (the "Class _ Securities"). The Class _ Securities will have
an Expected Payment Day of [_____] and will bear interest at LIBOR plus [___].
The Class __ Securities and the Class __ Securities are referred to herein
collectively as the "Securities".
The Class __ Securities will be issued by the Master Trust pursuant to
a Pooling and Servicing Agreement, dated as of June 8, 1995, amended as of
September 12, 1995, March 27, 1996, and July 17, 1998 and to be amended as of
____ __, 2000 and as supplemented by the Series 1995-1 Supplement, dated as of
June 8, 1995, as amended as of March 27, 1996 and August 19, 1997, the Series
1997-1 Supplement, dated as of August 19, 1997, the Series 1998-1 Supplement
dated as of July 17, 1998 and the Series 2000-VFC Supplement dated as of January
28, 2000 (the "Pooling and Servicing Agreement"), and a Series 200_-_ Supplement
to be dated as of ___ __, 2000 (the "Series 200_-_ Supplement"; the Pooling and
Servicing Agreement as
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amended as of ___ __, 2000 and as supplemented by the Series 200_-_ Supplement
is referred to herein as the "Master Trust Pooling and Servicing Agreement"),
among the Company, Navistar Financial Corporation ("NFC"), as Servicer and Bank
of New York, as trustee (the "Master Trust Trustee"). Capitalized terms used and
not otherwise defined herein are used as defined in the Master Trust Pooling and
Servicing Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (File No. [_____]), including a prospectus, for the
registration of asset-backed securities (issuable in series and classes
thereof), including the Class __ Securities, which registration statement has
become effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to the Underwriter. The Seller proposes to file with
the Commission pursuant to Rules 424(b)(2) or (5) and 424(c) under the
Securities Act a supplement dated ___ __, 2000 (the "Prospectus Supplement") to
the prospectus dated ____ __, 2000 (the "Base Prospectus") relating to the Class
__ Securities and the method of distribution thereof. Such registration
statement, including exhibits thereto, is hereinafter called the "Registration
Statement"; and the Base Prospectus and the Prospectus Supplement, together with
any amendment thereof or supplement thereto authorized by the Seller prior to
the Closing Date for use in connection with the offering of the Class __
Securities are hereinafter called the "Prospectus."
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to sell and deliver the Class __ Securities to
the Underwriter as hereinafter provided, and the Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from the Company $[_____]
principal amount of the Class __ Securities at a price equal to[___%] of such
principal amount plus accrued interest, if any, from ____, 2000 to the date of
payment and delivery.
2. Payment for the Class __ Securities shall be made to the Company or
to its order by wire transfer or other same day funds at the office of Kirkland
& Ellis, Chicago, Illinois at 9:00 A.M., Chicago time, on ____ __, 2000 or at
such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Underwriter and the Company may agree upon in
writing. The time and date of such payment for the Class __ Securities are
referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a Saturday, a Sunday or a day on which banks are
permitted or required to be closed in New York City.
Payment for the Class __ Securities shall be made against delivery to
the Underwriter through the facilities of The Depository Trust Company on the
Closing Date of one or more definitive certificate(s) representing the Class __
Securities registered in the name of Cede & Co.,
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as nominee for The Depository Trust Company, and in such denominations, as
permitted by the Master Trust Pooling and Servicing Agreement, as the
Underwriter shall request in writing not later than two full Business Days prior
to the Closing Date, with any transfer taxes payable in connection with the
transfer to the Underwriter of the Class __ Securities duly paid by the Company.
The certificate(s) for the Class __ Securities will be made available for
inspection by the Underwriter in Chicago, Illinois not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
3. The Company represents and warrants to the Underwriter that:
(a) no order preventing or suspending the use of any
preliminary prospectus filed as part of the Registration Statement has
been issued by the Commission, and each preliminary prospectus filed as
part of the Registration Statement, as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
provided that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use therein;
(b) the Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"),
and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the best knowledge of the Company,
threatened by the Commission; and the Registration Statement, as of the
Effective Date, did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
the Prospectus, as of the date of the Prospectus Supplement, did not,
and as of the Closing Date will not, contain an untrue statement of a
material fact and did not and will not 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; except that
the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to
the Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein;
(c) each of the Company and NFC has been duly incorporated
under the laws of its jurisdiction of incorporation; each of the
Company and NFC is a validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, with full
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power and corporate authority to own, lease and operate its properties
and conduct its business, and is duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the business,
results of operations or financial condition or the material properties
or assets of the Company or NFC or the performance of their obligations
hereunder or under the Securitization Agreements (as defined below) (a
"Material Adverse Effect");
(d) each of this Agreement, the Purchase Agreement and the
Pooling and Servicing Agreement (collectively, excluding this
Agreement, the "Existing Agreements") has been duly authorized,
executed and delivered by the Company and NFC;
(e) the execution and delivery of the Series 200_-_ Supplement
and the Class __ Underwriting Agreement (collectively, the "Additional
Agreements" and, together with the Existing Agreements, the
"Securitization Agreements") have been duly and validly authorized by
the Company and NFC;
(f) this Agreement constitutes the valid and binding agreement
of the Company and NFC; and each Existing Agreement constitutes, and
when executed and delivered by each of the Company and NFC, each
Additional Agreement will (assuming due authorization, execution and
delivery by the Master Trust Trustee and the Class __ Underwriter, as
applicable) constitute, a legal, valid and binding agreement of each of
the Company and NFC, enforceable against the Company and NFC in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought;
(g) the Class __ Securities and the Securitization Agreements
conform in all material respects to the descriptions thereof in the
Prospectus;
(h) the Class __ Securities have been duly and validly
authorized for issuance and, when executed by the Company and
authenticated by the Master Trust Trustee in accordance with the
provisions of the Master Trust Pooling and Servicing Agreement, and
delivered to and paid for by the Underwriter in accordance with the
terms hereof, will have been duly and validly executed, authenticated,
issued and delivered and will be entitled to the benefits of the Master
Trust Pooling and Servicing Agreement, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought;
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(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Class __ Securities and the Securitization Agreements, and the
consummation by the Company of the transactions contemplated herein and
therein and in the Prospectus, (i) do not and will not result in any
violation of the Certificate of Incorporation or the By-laws of the
Company and (ii) do not and will not conflict with, or result in a
breach or violation of any of the terms or provisions of, or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness
or the purchase of any capital stock under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company under, (A) any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, partnership agreement or
other agreement or instrument to which the Company, NFC, International
Truck and Engine Corporation ("ITEC") or Navistar International
Corporation ("NIC") is a party or by which any of them may be bound or
to which any of their respective properties or assets may be subject,
(B) (assuming, prior to the effectiveness of the Registration
Statement, compliance with the Securities Act) any applicable law or
statute, rule or regulation (other than the securities or Blue Sky laws
of the various states of the United States of America) or (C) any
judgment, order or decree of any government, governmental
instrumentality, agency, body or court, domestic or foreign, having
jurisdiction over the Company, NFC, ITEC or NIC or any of their
respective properties or assets;
(j) the execution and delivery by NFC of, and the performance
by NFC of all of its obligations under, this Agreement and the
Securitization Agreements, and the consummation by NFC of the
transactions contemplated herein and therein and in the Prospectus, (i)
do not and will not result in any violation of the Certificate of
Incorporation or the By-laws of NFC and (ii) do not and will not
conflict with, or result in a breach or violation of any of the terms
or provisions of, or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
give rise to any right to accelerate the maturity or require the
prepayment of any indebtedness or the purchase of any capital stock
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of NFC under, (A) any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, partnership agreement or other agreement or instrument to which
NFC, the Company, ITEC or NIC is a party or by which any of them may be
bound or to which any of their respective properties or assets may be
subject, (B) (assuming, prior to the effectiveness of the Registration
Statement, compliance with the Securities Act) any applicable law or
statute, rule or regulation (other than the securities or Blue Sky laws
of the various states of the United States of America) or (C) any
judgment, order or decree of any government, governmental
instrumentality, agency, body or court, domestic or foreign, having
jurisdiction over NFC, the Company, ITEC or NIC or any of their
respective properties or assets;
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(k) the representations and warranties of the Company and
NFC set out in the Securitization Agreements are true and correct in
all material respects;
(l) no authorization, approval, consent, order, registration,
qualification or license of, or filing with, any government,
governmental instrumentality, agency, body or court, domestic or
foreign, or third party (other than as have been or will be prior to
the Closing Date obtained under the Securities Act or as may
subsequently be required under the Securities Exchange Act of 1934 (the
"Exchange Act") or as may be required under the securities or Blue Sky
laws of the various states of the United States of America) is required
for the valid authorization, issuance, sale and delivery of the Class
__ Securities, or the performance by the Company or NFC of all of its
obligations under this Agreement, the Securitization Agreements or (in
the case of the Company) the Class __ Securities, or the consummation
by the Company or NFC of the transactions contemplated by this
Agreement, the Securitization Agreements or the Prospectus;
(m) neither the Company nor NFC (i) is in violation of its
Certificate of Incorporation or By-Laws or (ii) is in breach or
violation of any of the terms or provisions of, or with the giving of
notice or lapse of time, or both, would be in default under, any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, partnership agreement, or other agreement or instrument to which
the Company or NFC is a party or by which either of them may be bound
or to which any of their properties or assets may be subject, except
for such violations or defaults that would not have a Material Adverse
Effect;
(n) there is no action, suit or proceeding before or by any
government, governmental instrumentality, agency, body or court,
domestic or foreign, now pending or, to the best knowledge of the
Company and NFC after due inquiry, threatened against or affecting the
Company or NFC (i) asserting the invalidity of this Agreement, any
Securitization Agreement or the Class __ Securities, (ii) seeking to
prevent the issuance of the Class __ Securities or the consummation of
any of the transactions contemplated by this Agreement or any
Securitization Agreement, (iii) that might materially and adversely
affect the performance by either the Company or NFC of its obligations
under, or the validity or enforceability of, this Agreement, any
Securitization Agreement or the Class __ Securities, (iv) seeking to
affect adversely the federal income tax attributes of the Class __
Securities described in the Prospectus or (v) that if determined
adversely as to either the Company or NFC would have a Material Adverse
Effect on either the Company or NFC;
(o) there has not been any material adverse change in the
business, results of operations or financial condition or the material
properties or assets of ITEC or NFC since the end of the most recent
fiscal quarter of ITEC or NFC;
(p) any taxes, fees, and other governmental charges in
connection with the execution and delivery of this Agreement and the
Securitization Agreements and the
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execution, delivery, and sale of the Class __ Securities have been or
will be paid at or before the Closing Date;
(q) the Dealer Notes and/or Investment Securities held by the
Master Trust on the Closing Date (after giving effect to all
transactions occurring on such date) will have an aggregate principal
amount of not less than [$_________];
(r) the Master Trust Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and neither the Company nor the
Master Trust is required to be registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(s) neither the Company nor NFC is a party to, or otherwise
bound by, any indenture or other material agreement or instrument, or,
to the Company's or NFC's knowledge, subject to or in violation of any
statute, regulation, or order of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over the Company
or NFC that would have a Material Adverse Effect; and
(t) there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
4. The Company covenants and agrees with the Underwriter as follows:
(a) to cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rules 424(b)(2) or (5) and 424(c)
under the Securities Act by means reasonably calculated to result in
filing with the Commission pursuant to said rule;
(b) to deliver, at the expense of the Company, (i) on the
Closing Date, two certified conformed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each
case including exhibits, to the Underwriter, and (ii) during the period
mentioned in paragraph (e) below, to the Underwriter as many copies of
the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) as the Underwriter may
reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to the Underwriter
and its counsel a copy of the proposed amendment or supplement for
review within a reasonable time prior to the proposed filing thereof
and not to file any such proposed amendment or supplement to which the
Underwriter or its counsel reasonably object;
(d) to advise the Underwriter promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any
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amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and (iv) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Class __ Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain promptly
the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Class __ Securities as in the opinion of counsel
for the Underwriter or in the opinion of counsel for the Company a
prospectus relating to the Class __ Securities is required by law to be
delivered in connection with sales by the Underwriter or a dealer, any
event shall occur or information shall become known as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances at the
time the Prospectus is delivered to a purchaser, not misleading, or if
it is necessary to amend or supplement the Prospectus to comply with
law, forthwith to, at the sole expense of the Company, prepare and,
subject to Section 5(c) above, file with the Commission, and furnish to
the Underwriter and to the dealers (whose names and addresses the
Underwriter will furnish to the Company) to which Class __ Securities
may have been sold by the Underwriter and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances at the time
the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law; provided, however, if the need for
an amendment is due to misleading, inaccurate or incomplete information
regarding the Underwriter, all fees and expenses related thereto will
be paid by the Underwriter;
(f) (i) to use its best efforts to qualify the Class __
Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Underwriter shall reasonably request and to
continue such qualification in effect so long as reasonably required
for distribution of the Class __ Securities and (ii) to pay all fees
and expenses (including fees and disbursements of counsel for the
Underwriter) incurred in connection with such qualification and in
connection with the determination of the eligibility of the Class __
Securities for investment under the laws of such jurisdictions as the
Underwriter may designate; provided that the Company shall not be
required to file a general consent to service of process or qualify as
a foreign corporation in any jurisdiction;
(g) to cause the Master Trust to make generally available to
holders of the Class __ Securities and to the Underwriter, in
accordance with Rule 158 under the Securities Act or otherwise, as soon
as practicable, but in any event not later than forty-five days after
the end of the fourth full fiscal quarter (ninety days in the case of
the last fiscal quarter in any fiscal year) following the fiscal
quarter ending after the Effective Date,
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an earnings statement of the Master Trust (which need not be audited)
complying with Section 11(a) of the Securities Act and covering a
period of at least twelve consecutive months beginning after the
Effective Date;
(h) so long as the Class __ Securities are outstanding, to
deliver or cause to be delivered to the Underwriter the annual
statements as to compliance and the annual statement(s) of a firm of
independent public accountants delivered to the Master Trust Trustee
pursuant to the Master Trust Pooling and Servicing Agreement, in each
case promptly after such statements are furnished to the Company;
(i) to pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without
limitation, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Class __
Securities, including any expenses of the Master Trust Trustee, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
qualification or exemption of the sale of the Class __ Securities under
state securities or Blue Sky laws and the determination of their
eligibility for investment under state and federal laws, including
filing fees and reasonable fees and disbursements of counsel in
connection therewith, (iv) in connection with the printing (including
word processing and duplication costs) and delivery of this Agreement,
the Securitization Agreements and all other agreements relating hereto
or thereto, the Preliminary Blue Sky Memorandum and the furnishing to
the Underwriter and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided, and
(v) payable to rating agencies in connection with the rating of the
Class __ Securities;
(j) so long as any of the Class __ Securities are outstanding,
to furnish to the Underwriter as soon as practicable after the end of
the fiscal year, (i) all documents required to be distributed to
security holders of the Master Trust or filed with the Commission
pursuant to the Exchange Act, or any order of the Commission thereunder
and (ii) from time to time, any other information concerning the
Company filed with any government or regulatory authority that is
otherwise publicly available, as the Underwriter may reasonably
request; and
(k) to the extent, if any, that the rating provided with
respect to the Class __ Securities by the rating agency or agencies
that initially rate the Class __ Securities is conditional upon the
furnishing of documents or the taking of any other actions by the
Company, to furnish, as soon as practicable, such documents and take
any such other reasonable actions.
The Company and NFC agree with the Underwriter during the period of 30
days from the date of the Prospectus, not to offer, sell, contract to sell or
announce any offering of any
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securities (other than the Class __ Securities) of the Company or any other
affiliate of NFC, or any other trust for which the Company or any other
affiliate of NFC is depositor, which represent participation interests in
wholesale dealer notes issued by dealers to finance purchases of new and used
medium and heavy duty trucks, without the Underwriter's prior written consent,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing,
the Company and NFC may at any time cause the Master Trust to issue a variable
funding certificate to be placed with any single-seller asset-backed commercial
paper vehicle administered by NFC.
5. The obligation of the Underwriter hereunder to purchase the Class __
Securities is subject to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and
any requests for additional information by the Commission shall have
been complied with to the reasonable satisfaction of the Underwriter.
(b) Each of the representations and warranties of the Company
and NFC contained herein shall be true and correct on and as of the
Closing Date as if made on and as of the Closing Date, and each of the
Company and NFC shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date.
(c) All corporate proceedings and related matters in
connection with the organization of the Company, the validity of the
Securitization Agreements and the registration, authorization, issue,
sale and delivery of the Class __ Securities shall have been
satisfactory to counsel to the Underwriter, and such counsel shall have
been furnished with such papers and information as they may reasonably
have requested to enable them to pass upon the matters referred to in
this paragraph (c).
(d) The Underwriter shall have received on the Closing Date a
signed opinion of Kirkland & Ellis, special counsel for the Company and
NFC, in form and substance reasonably satisfactory to the Underwriter
and counsel to the Underwriter, dated the Closing Date and addressed to
the Underwriter, to the effect that:
(i) the issuance of the Class __ Securities has been
duly authorized and when the Class __ Securities have been
executed by the Company and duly authenticated by the Master
Trust Trustee in accordance with the provisions of the Master
Trust Pooling and Servicing Agreement and delivered to the
Underwriter against payment of the agreed consideration
therefor in accordance with the terms of this Agreement, the
Class __ Securities will be duly executed, authenticated,
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issued and delivered and will be entitled to the benefits
provided by the Master Trust Pooling and Servicing Agreement,
in accordance with its terms;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company and NFC; and each
Existing Agreement constitutes, and when executed and
delivered by each of the Company and NFC, each Additional
Agreement will constitute, a legal, valid and binding
obligation of each of the Company and NFC (and assuming due
authorization, execution and delivery by the Master Trust
Trustee and the Class __ Underwriter with respect to the
Additional Agreements), enforceable against the Company and
NFC in accordance with its respective terms;
(iv) the execution and delivery by the Company of
this Agreement, the Class __ Securities and the Securitization
Agreements and the performance by the Company of its
obligations hereunder and thereunder (A) have been duly
authorized by the Company, (B) do not and will not violate the
Certificate of Incorporation or By-laws of the Company and (C)
do not and will not breach, or result in a default under, (1)
any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, partnership agreement or other
agreement or instrument to which the Company, NFC, ITEC or NIC
is a party or by which any of them may be bound or to which
any of their respective properties or assets may be subject,
which has been specified by the Company in an officer's
certificate as being material to the Company, NFC, ITEC or NIC
(except that such counsel need not express any opinion with
respect to compliance with any financial test or any breach or
default under any cross-default provisions arising out of
failure to comply with a financial test or a default under any
agreement not so specified in such officer's certificate), (2)
based upon existing facts of which such counsel is aware, any
federal or State of New York or Illinois law which, in such
counsel's experience, is normally applicable to general
business corporations which are not engaged in regulated
business activities and to transactions of the type
contemplated by this Agreement and the Securitization
Agreements (but without such counsel having made any special
investigation as to any other laws), except that such counsel
shall express no opinion as to (x) compliance with any
disclosure requirement or any prohibition against fraud or
misrepresentation, (y) whether performance of indemnification
or contribution provisions would be permitted or (z) any laws
which the Company, NFC, ITEC or NIC may be subject solely as
a result of the Underwriter's (as opposed to underwriters
generally) legal or regulatory status, or the Underwriter's
(as opposed to underwriters generally) involvement in the
transactions contemplated by this Agreement or (3) any
judgment, order or decree of any government, governmental
instrumentality, agency body or court, domestic or foreign,
which has been specified by the Company in an officer's
certificate as being material to the Company, NFC, ITEC
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or NIC and having jurisdiction over the Company, NFC, ITEC,
or NIC or any of their respective properties or assets;
(v) the execution and delivery by NFC of this
Agreement and the Securitization Agreements and the
performance by NFC of its obligations hereunder and thereunder
(A) have been duly authorized by NFC, (B) do not and will not
violate the Certificate of Incorporation or By-laws of NFC and
(C) do not and will not breach, or result in a default under,
(1) any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, partnership agreement or other
agreement or instrument to which the Company, NFC, ITEC or NIC
is a party or by which any of them may be bound or to which
any of their respective properties or assets may be subject,
which has been specified by the Company in an officer's
certificate as being material to the Company, NFC, ITEC or NIC
(except that such counsel need not express any opinion with
respect to compliance with any financial test or any breach or
default under any cross-default provisions arising out of
failure to comply with a financial test or a default under any
agreement not so specified in such officer's certificate), (2)
based upon existing facts of which such counsel is aware, any
federal or State of New York or Illinois law which, in such
counsel's experience, is normally applicable to general
business corporations which are not engaged in regulated
business activities and to transactions of the type
contemplated by this Agreement and the Securitization
Agreements (but without such counsel having made any special
investigation as to any other laws), except that such counsel
shall express no opinion as to (x) compliance with any
disclosure requirement or any prohibition against fraud or
misrepresentation, (y) whether performance of indemnification
or contribution provisions would be permitted or (z) any laws
which the Company, NFC, ITEC or NIC may be subject solely as a
result of the Underwriter's (as opposed to underwriters
generally) legal or regulatory status, or the Underwriter's
(as opposed to underwriters generally) involvement in the
transactions contemplated by this Agreement or (3) any
judgment, order or decree of any government, governmental
instrumentality, agency body or court, domestic or foreign,
which has been specified by the Company in an officer's
certificate as being material to the Company, NFC, ITEC or NIC
and having jurisdiction over the Company, NFC, ITEC or NIC or
any of their respective properties or assets;
(vi) the information in the Registration Statement
under the headings "Federal Income Tax Matters," "Certain
State Tax Matters," "ERISA Considerations" and "Certain
Matters Relating to Bankruptcy" to the extent that it
summarizes laws or constitutes legal conclusions with respect
thereto, is correct in all material respects; and the Class __
Securities and the Securitization Agreements conform in all
material respects to the descriptions thereof in the
Prospectus set forth under the heading "Description of the
Offered Certificates";
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<PAGE> 13
(vii) the Master Trust Pooling and Servicing
Agreement is not required to be qualified under the Trust
Indenture Act, and neither the Company nor the Master Trust is
required to be registered under the Investment Company Act;
and
(viii) no authorization, approval, consent or order
of any government, governmental instrumentality, agency, body
or court, domestic or foreign, is required for the valid
authorization, issuance, sale and delivery of the Class __
Securities, except such consents, approvals, authorizations or
orders as have been obtained under the Securities Act and as
may be required under the state securities or Blue Sky laws of
the various states of the United States of America, and such
other consents, approvals, authorizations or orders as have
been obtained, with such counsel specifying the same.
Such counsel shall also advise that the purpose of their
professional engagement was not to establish factual matters, and that
preparation of the Registration Statement involved many determinations
of a wholly or partially nonlegal character and that they make no
representation that they have independently verified the accuracy,
completeness or fairness of the Prospectus or Registration Statement or
that the actions taken in connection with the preparation of the
Registration Statement or Prospectus (including the actions described
in the next paragraph) were sufficient to cause the Prospectus or
Registration Statement to be accurate, complete or fair and that they
are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the Prospectus or the
Registration Statement except to the extent otherwise explicitly
indicated in numbered paragraph (vi) above, but that they can however
confirm that they have participated in conferences with representatives
of the Company, representatives of the Underwriter and the Class __
Underwriter, counsel for the Underwriter and the Class __ Underwriter
and representatives of the independent accountants for the Company
during which disclosures in the Registration Statement and Prospectus
and related matters were discussed and that they have reviewed certain
corporate records furnished to them by the Company and that they were
not retained by the Company to prepare the periodic reports or other
materials incorporated in the Prospectus or Registration Statement, and
that their knowledge about those materials is limited, but that based
upon their participation in the conferences and their document review
identified above, their understanding of applicable law and the
experience they have gained in their practice thereunder and relying as
to materiality to a large extent upon the opinions and statements of
officers of the Company, they can, however, advise that nothing has
come to their attention that has caused them to conclude that (i) the
Registration Statement at its effective date contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (ii) the Prospectus at the date it bears
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
or (iii) as of the effective date, either the Registration Statement or
the Prospectus appeared on
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<PAGE> 14
its face not to be responsive in all material respects to the
requirements of Form S-3, in each case, excluding any financial
statements or supporting schedules (or any notes to any such statements
or schedules) or other financial or statistical information set forth
or incorporated by reference in (or omitted from) the Registration
Statement or the Prospectus.
In rendering such opinions, such counsel may rely as to
matters of fact, to the extent such counsel reasonably deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. In addition, such opinion of counsel may state that such
counsel's opinions are subject to the effect of applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
transfer or other laws of general applicability relating to or
affecting the enforcement of creditors' rights from time to time in
effect and to general principles of equity.
(e) Kirkland & Ellis shall have furnished to the Underwriter a
letter stating that the Underwriter may rely on their opinions, as
special counsel to the Company and NFC, as delivered to Moody's
Investors Service, Inc. and Standard & Poor's Ratings Service in
connection with the rating of the Class __ Securities.
(f) The Underwriter shall have received on the Closing Date a
signed opinion of Steven K. Covey, General Counsel of NFC, in form and
substance reasonably satisfactory to the Underwriter and counsel to the
Underwriter, dated the Closing Date and addressed to the Underwriter,
to the effect that:
(i) each of the Company and NFC has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with full
power and authority (corporate and other) to own, lease and
operate its properties and to conduct its business;
(ii) except as described in the Registration
Statement and the Prospectus, there is no action, suit or
proceeding before or by any government, governmental
instrumentality, agency, body or court, domestic or foreign,
now pending or, to the best knowledge of such counsel,
threatened against or affecting the Company, NFC, ITEC or NIC
that could have a Material Adverse Effect or that could have a
material adverse effect on the consummation of the
transactions contemplated in, or the fulfillment of the terms
of, this Agreement, the Prospectus or the Securitization
Agreements; there is no action, suit or proceeding before or
by any government, governmental instrumentality, agency, body
or court, now pending, or to the best knowledge of such
counsel, threatened against or affecting the Company, NFC,
ITEC or NIC that is required to be described in the
Registration Statement or the Prospectus that is not so
described; and to the best of such
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<PAGE> 15
counsel's knowledge, there are no contracts or other documents
of a character required to be described or referred to in the
Registration Statement or the Prospectus, or to be filed as an
exhibit to the Registration Statement, that are not described,
filed or referred to as required;
(iii) the execution and delivery by the Company and
NFC of, and the performance by the Company and NFC of all of
the provisions of its obligations under, this Agreement, the
Securitization Agreements and the Class __ Securities, and the
consummation by the Company and NFC of the transactions
contemplated herein, therein and in the Prospectus, do not and
will not conflict with, or result in a breach or violation of
any of the terms or provisions of, or constitute a default (or
an event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any
indebtedness or the purchase of any capital stock under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or of
any Subsidiary under, (A) any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, partnership
agreement or other agreement or instrument to which the
Company, NFC, ITEC or NIC is a party or by which any of them
may be bound or to which any of their respective properties or
assets may be subject or (B) any judgment, order or decree of
any government, governmental instrumentality, agency, body or
court, domestic or foreign, having jurisdiction over the
Company, NFC, ITEC or NIC or any of their respective
properties or assets; and
(iv) the statements contained in the Registration
Statement under the heading "Certain Matters Relating to the
Dealer Notes," to the extent that they constitute statements
of matters of law or legal conclusions with respect thereto,
are correct in all material respects.
Such counsel shall also advise, based on his participation in
the preparation of the Registration Statement and the Prospectus and
conferences with officers and representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriter and Class __ Underwriter and counsel
to the Underwriter and Class __ Underwriter, that nothing has come to
his attention that leads him to believe that the Registration Statement
and any post-effective amendment thereto (other than the financial
statements, supporting schedules and other financial and statistical
data set forth therein, as to which no advice need be given), at the
time such Registration Statement or post-effective amendment became
effective or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (as supplemented, if
applicable) (other than the financial statements, supporting schedules
and other financial and statistical data set forth therein, as to which
no advice need be given), as of its date or as of the Closing
15
<PAGE> 16
Date, contained or contains an untrue statement of a material fact or
omitted or omits 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.
(g) On the date hereof and at the Closing Date, Deloitte &
Touche shall have furnished to the Underwriter letters, dated the
respective date of delivery thereof, in form and substance satisfactory
to the Underwriter.
(h) Counsel to the Master Trust Trustee shall have furnished
to the Underwriter written opinions, dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriter.
(i) The Dealer Notes and/or Investment Securities held by the
Master Trust on the Closing Date (after giving effect to all
transactions occurring on such date) will have an aggregate principal
amount of not less than [$_____________].
(j) At or prior to the Closing Date, the Class __ Securities
shall be rated "[__]" by Moody's Investors Service, Inc. and "[__]" by
Standard & Poor's Ratings Services and the Class __ Securities shall be
rated "[__]" by Moody's Investors Service, Inc. and "[__]" by Standard
& Poor's Ratings Services.
(k) The Company shall have furnished or caused to be furnished
to the Underwriter a certificate, dated the Closing Date, by either the
President or a Vice President of ITEC and NFC (in his capacity as such)
to the effect that the signer of such certificate has carefully
examined the Securitization Agreements and to the effect that: (i) the
representations and warranties of the Company and NFC contained in such
agreements are true and correct in all material respects at and as of
the Closing Date with the same effect as if made at the Closing Date,
(ii) the Company and NFC have complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date, (iii) 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 Company's
knowledge, threatened, (iv) there shall have been no material adverse
change in the business, results of operation or financial condition or
the material properties or assets of ITEC or NFC since the end of the
most recent fiscal quarter of ITEC or NFC, and (v) nothing has come to
his attention that would lead him to believe that the Prospectus
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(l) The Underwriter shall have received on and as of the
Closing Date an opinion dated the Closing Date of Mayer, Brown & Platt,
counsel to the Underwriter, addressed to the Underwriter and in form
and substance satisfactory to the Underwriter with respect to the
validity of the Class __ Securities, the Master Trust Pooling and
16
<PAGE> 17
Servicing Agreement, the Registration Statement, the Prospectus and
other related matters as the Underwriter may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters.
(m) On or prior to the Closing Date, the Company shall have
furnished to the Underwriter such further certificates and documents as
the Underwriter or their counsel, Mayer, Brown & Platt, shall
reasonably request.
6 The Company and NFC agree to jointly and severally indemnify and hold
harmless the Underwriter, its officers and directors, and each person, if any,
who controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
actual legal fees and other expenses reasonably incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company or NFC
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Prospectus, in the light of the
circumstances under which they were made), except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to the Underwriter furnished to the Company and NFC in
writing by the Underwriter expressly for use therein and except that neither the
Company nor NFC will be liable to the Underwriter or any person controlling the
Underwriter with respect to any such untrue statement or omission made in any
preliminary prospectus that is completely corrected in the Prospectus (or any
amendment or supplement thereto) if the Company or NFC shall have provided such
amendment or supplement to the Underwriter in accordance with this Agreement if
(i) the person asserting any such loss, claim, damage or liability purchased
Class __ Securities directly from the Underwriter in reliance upon the
Preliminary Prospectus but was not sent or given a copy of the Prospectus (as
amended or supplemented if the Company or NFC shall have provided such amendment
or supplement) at or prior to the written confirmation of the sale of such Class
__ Securities to such person in any case where such delivery of the Prospectus
(as so amended or supplemented) is required by the Securities Act, unless such
failure to deliver such Prospectus (as amended or supplemented) was a result of
noncompliance by the Company or NFC with Section 5(b)(ii) of this Agreement,
(ii) such Prospectus contains no other untrue statement or omission or alleged
untrue statement or omission of a material fact which was the subject matter of
the related proceeding and (iii) the Company and NFC shall prevail in
establishing in the related proceeding that the Underwriter or controlling
person sold Class __ Securities to the person asserting such loss, claim, damage
or liability without sending or giving, or having sent or given on its behalf,
at or prior to the written confirmation of such date, a copy of the Prospectus.
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<PAGE> 18
The Underwriter agrees to indemnify and hold harmless the Company and
NFC, their directors, their officers who sign the Registration Statement and
each person who controls the Company or NFC within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and NFC to the Underwriter, but only with
reference to information relating to the Underwriter furnished to the Company
and NFC in writing by the Underwriter expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
preliminary prospectus. For purposes of this Section 7 and paragraphs (a) and
(b) of Section 4 hereof, the only written information furnished by the
Underwriter to the Company and NFC expressly for use in the Registration
Statement and the Prospectus is the information regarding the initial sale of
the Class __ Securities by the Underwriter.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriter
and such control persons of Underwriter shall be designated in writing by
[________] and any such separate firm for the Company and NFC, their respective
directors, their respective officers who sign the Registration Statement and
such control persons of the Company and NFC shall be designated in writing by
the Company and NFC. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more
18
<PAGE> 19
than 30 days after receipt by such Indemnifying Person of the aforesaid request
and (ii) such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional written release, in form and substance
reasonably satisfactory to the Indemnified Party, of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and NFC on
the one hand and the Underwriter on the other hand from the offering of the
Class __ Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and NFC on the one hand and the Underwriter on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and NFC on the one
hand and the Underwriter on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and NFC and the total underwriting discounts
and the commissions actually received by the Underwriter, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Class __ Securities. The relative fault of the Company and
NFC on the one hand and the Underwriter on the other 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 the Company or NFC or by the Underwriter and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, NFC and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any actual legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall
the Underwriter be required to contribute with respect to any losses, claims,
damages
19
<PAGE> 20
or liabilities in connection with clause (i) of the second paragraph of this
Section 7 (amounts with respect to clause (ii) not being limited) any amount in
excess of the amount by which the total price at which the Class __ Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay or has paid by reason of such 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 indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and NFC as set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter or any person controlling the Underwriter or by or on
behalf of the Company and NFC, their officers or directors or any other person
controlling the Company or NFC and (iii) acceptance of and payment for any of
the Class __ Securities.
7 The Underwriter represents and agrees that:
(a) it has not offered or sold, and will not offer or sell,
any Series 200_-_ Certificates to persons in the United Kingdom, other
than to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted, and will not result, in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 of Great Britain with
respect to anything done by it in relation to the Series 200_-_
Certificates in, from or otherwise involving the United Kingdom; and
(c) it has only issued or passed on, and will only issue or
pass on, in the United Kingdom any document in connection with the
issue of Series 200_-_ Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986, as
amended, (Investment Advertisements) (Exceptions) Order 1996, as
amended, or is otherwise a person to whom the document may otherwise
lawfully be issued or passed on.
8 Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriter, by notice given to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been
20
<PAGE> 21
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriter, is material and adverse and which, in
the judgment of the Underwriter, makes it impracticable or inadvisable to market
the Class __ Securities on the terms and in the manner contemplated in the
Prospectus.
9 If this Agreement shall be terminated by the Underwriter because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company agrees to reimburse the Underwriter for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by the
Underwriter in connection with this Agreement or the offering contemplated
hereunder.
10 All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or telecopied. Notices to
the Underwriter shall be given to the Underwriter, at [______], Attention:
[_____] (facsimile: [____]). Notices to the Company shall be given to it at 2850
W. Golf Road, Rolling Meadows, IL 60008; Attention: Steven K. Covey (facsimile:
(847) 734-4090).
11 This Agreement shall inure to the benefit of and be binding upon the
Underwriter and the Company and any controlling person referred to herein and
their respective successors, heirs and legal representatives. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriter and the Company and
their respective successors, heirs and legal representatives and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Class __ Securities from the Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12 This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
13 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
21
<PAGE> 22
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
NAVISTAR FINANCIAL SECURITIES
CORPORATION
By:
Title:
NAVISTAR FINANCIAL CORPORATION
By:
Name:
Title:
Accepted: ___ __, 2000
[UNDERWRITER].
By:
Name:
Title:
