EXHIBIT 1.1
UNDERWRITING AGREEMENT
Navistar Financial Securities Corporation
Navistar Financial Dealer Note Master Trust
$200,000,000 Class A Floating Rate Dealer Note Asset Backed Certificates,
Series 2003-1
$12,000,000 Class B Floating Rate Dealer Note Asset Backed Certificates,
Series 2003-1
June 30, 0000
Xxxx xx Xxxxxxx Securities LLC
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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 $200,000,000 principal amount of the Class A Floating Rate Dealer Note Asset
Backed Certificates, Series 2003-1 (the "CLASS A SECURITIES") and an aggregate
of $12,000,000 principal amount of the Class B Floating Rate Dealer Note Asset
Backed Certificates, Series 2003-1 (the "CLASS B SECURITIES"). The Class A
Securities will have an Expected Principal Payment Date of June 26, 2006 and
will bear interest at LIBOR plus 0.30%. The Class B Securities will have an
Expected Principal Payment Date of June 26, 2006 and will bear interest at LIBOR
plus 1.20%. The Class A Securities and the Class B Securities are referred to
herein collectively as the "SECURITIES". The property of the Master Trust
includes receivables (the "RECEIVABLES") generated from time to time in a
revolving pool of dealer notes (the "MASTER TRUST PROPERTY") conveyed to the
Master Trust by the Company.
The 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, July 17, 1998, June 2, 2000, and July 13, 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, the Series 2000-VFC Supplement dated as of January 28, 2000, as amended
January 22, 2003, and the Series 2000-1 Supplement dated as of July 13, 2000
(the "POOLING AND SERVICING AGREEMENT") and a Series 2003-1 Supplement to be
dated as of July 10, 2003 (the "SERIES 2003-1 SUPPLEMENT"); the Pooling and
Servicing Agreement as supplemented by the Series 2003-1 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. 333-102345-01), including a prospectus, for the
registration of asset-backed securities (issuable in series and classes
thereof), including the 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 Company proposes to file with the
Commission pursuant to Rules 424(b)(2) or (5) and 424(c) under the Securities
Act a supplement to be dated on or about June 30, 2003 (the "PROSPECTUS
SUPPLEMENT") to the prospectus dated June 30, 2003, which may be amended and
dated on or about June 30, 2003 (the "BASE PROSPECTUS") relating to the
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 Company prior to the
Closing Date for use in connection with the offering of the Securities are
hereinafter called the "PROSPECTUS."
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to sell and deliver the 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 (x) $200,000,000
principal amount of the Class A Securities at a price equal to 99.70% of such
principal amount and (y) $12,000,000 principal amount of the Class B Securities
at a price equal to 99.65% of such principal amount.
2. Payment for the Securities shall be made to the Company or to its
order by wire transfer or other same day funds at the office of Xxxxxxxx &
Xxxxx, Chicago, Illinois at 9:00 A.M., Chicago time, on July 10, 2003 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 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 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
Securities registered in the name of Cede & Co., 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
Securities duly paid by the Company. The certificate(s) for the 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.
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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 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
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AGREEMENTS") has been duly and validly authorized, executed and delivered
by the Company and NFC;
(e) the execution and delivery of the Series 2003-1 Supplement
(collectively, the Series 2003-1 Supplement 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, the Series 2003-1
Supplement will (assuming due authorization, execution and delivery by the
Master Trust Trustee) 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 Securities and the Securitization Agreements conform in
all material respects to the descriptions thereof in the Prospectus;
(h) the 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;
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
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
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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;
(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 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 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 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,
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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 Securities, (ii) seeking to prevent the issuance of the 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 Securities, (iv) seeking to affect
adversely the federal income tax attributes of the Securities described in
the Prospectus or (v) that if determined adversely as to either the Company
or NFC would have a Material Adverse Effect;
(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 execution, delivery, and sale of the Securities have
been or will be paid at or before the Closing Date;
(q) on the Closing Date, and after giving effect to all
transactions occurring on the Closing Date, including the issuance of the
Securities, the repayment, if any, of the Series 2000 VFC Certificate and
any deposit to the Excess Funding Account, the Master Trust's Seller's
Interest shall be at least equal to the Minimum Master Trust Seller's
Interest;
(r) 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;
(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:
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(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, one conformed copy 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
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 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 Securities as in the opinion of counsel for the
Underwriter or in the opinion of counsel for the Company a prospectus
relating to the 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 4(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 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;
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(f) (i) to use its best efforts to qualify the 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 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 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 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,
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 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 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 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 of
copies of the Registration Statement and the Prospectus (the Underwriter
shall pay its own cost of shipping the preliminary Prospectus and the
Prospectus), as herein provided, and (v) payable to rating agencies in
connection with the rating of the Securities;
(j) so long as any of the 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 Securities
Exchange Act, or any order of the Commission
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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 a rating provided with respect to
the Securities by the rating agency or agencies that initially rate the
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 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 increase the amount outstanding under a
variable funding certificate that has been placed with any asset-backed
commercial paper vehicle.
5. The obligation of the Underwriter hereunder to purchase the
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 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 Xxxxxxxx & Xxxxx, 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:
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(i) the issuance of the Securities has been duly
authorized and when the 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 Securities will be duly executed,
authenticated, issued and delivered and will be entitled to the
benefits provided by the Master Trust Pooling and Servicing
Agreement, in accordance with its terms;
(ii) 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, the Series 2003-1 Supplement 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), enforceable against the Company and NFC in
accordance with its respective terms;
(iii) the execution and delivery by the Company of this
Agreement, the 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;
(iv) 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;
(v) the information in the Prospectus under the headings
"Material Federal Income Tax Matters," "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
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 Series 2003-1
Certificates";
(vi) 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;
11
(vii) 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 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; and
(viii) the Registration Statement has become effective under
the Securities Act, and the Prospectus has been filed with the
Commission pursuant to Rule 424(b) thereunder in the manner and
within the time period required by Rule 424(b). To the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened or
contemplated by the Commission.
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 (v) above, but that they can
however confirm that they have participated in conferences with
representatives of the Company, representatives of the Underwriter, counsel
for the 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 its face not to be responsive in all material respects to the
12
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) Xxxxxxxx & Xxxxx 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 Xxxxx'x Investors Service,
Inc. and Standard & Poor's Ratings Services in connection with the rating
of the Securities.
(f) The Underwriter shall have received on the Closing Date a
signed opinion of Xxxxxx X. Xxxxx, 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 as described in the
Prospectus;
(ii) except as described in 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 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;
13
(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 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 Prospectus 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 counsel to the 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, 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 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) The Underwriter shall have received on the Closing Date a
signed opinion of Xxxxx, Xxxxxx & Xxxxxx, LLP, special counsel for the
Master Trust Trustee, in form
14
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 Master Trust Trustee is a banking corporation
duly incorporated and validly existing under the laws of the State
of New York;
(ii) the Master Trust Trustee has the full power and
authority to accept the office of trustee under the Agreements and
to execute and perform its obligations under the Agreements. For
purposes of this Section (h) "Agreements" shall mean the Pooling
and Servicing Agreement and the Series 2003-1 Supplement;
(iii) the execution and delivery of each of the Agreements
and the performance by the Master Trust Trustee of its obligations
under the Agreements have been duly authorized by all necessary
corporate action of the Master Trust Trustee and each has been duly
authorized, executed and delivered on behalf of the Master Trust
Trustee;
(iv) each of the Agreements constitutes valid and
binding obligations of the Master Trust Trustee enforceable against
the Master Trust Trustee in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting creditors' rights or general
principals of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(v) the execution, delivery or performance by the Master
Trust Trustee of each of the Agreements do not require any consent,
approval or authorization of, or any registration or filing with,
any New York or United States Federal court or governmental agency
or body;
(vi) neither (a) the authentication and delivery of the
Securities or (b) the execution, delivery and the performance of
the Agreements by the Master Trust Trustee conflicts with or will
result in violation of (A) any law or regulation of the United
States of America or of the State of New York governing the banking
or trust powers of the Master Trust Trustee or (B) the Articles of
Incorporation or Bylaws of the Master Trust Trustee; and
(vii) the Securities have been duly authenticated by the
Master Trust Trustee upon the order of the Company.
(i) On the Closing Date, and after giving effect to all
transactions occurring on the Closing Date, including the issuance of the
Securities, the repayment, if any, of the Series 2000 VFC Certificate and
any deposit to the Excess Funding Account, the Master Trust's Seller's
Interest shall be at least equal to the Minimum Master Trust Seller's
Interest.
(j) At or prior to the Closing Date, the Class A Securities shall
be rated "Aaa" by Xxxxx'x Investors Service, Inc. and "AAA" by Standard &
Poor's Ratings Services
15
and the Class B Securities shall be rated "A2" by Xxxxx'x Investors
Service, Inc. and "A-" 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 this
Agreement and 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, Xxxx & Maw,
counsel to the Underwriter, addressed to the Underwriter and in form and
substance satisfactory to the Underwriter with respect to the validity of
the Securities, the Master Trust Pooling and 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, Xxxx & Maw, 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 Securities 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
16
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 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 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 4(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 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.
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 Securities 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 6 and paragraphs (a)
and (b) of Section 3 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 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
17
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 Banc
of America Securities LLC 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 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 6 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
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 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
18
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 6 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 6, in no event shall
the Underwriter be required to contribute with respect to any losses, claims,
damages or liabilities in connection with the second paragraph of this Section 6
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public 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 6 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 6 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 Securities.
7. The Underwriter represents and agrees that:
(a) it has not offered or sold, and prior to the date which is six
months after the date of issue of the Securities will not offer or sell,
any Securities 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 do not constitute an offer
to the public in the United Kingdom for the purposes of the Public Offers
of Securities Regulations 1995 and the Financial Services and Markets Xxx
0000;
(b) it has complied and will comply with all applicable provisions
of the Public Offers of Securities Regulations 1995 and the Financial
Services and Markets Xxx 0000 with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom; and
19
(c) it has only communicated or caused to be communicated and it
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of Section
21 of the Financial Services and Markets Act 2000) received by it in
connection with the issue or sale of any of the Series 2003-1 Certificates
in circumstances in which Section 21(1) of the Financial Services and
Markets Xxx 0000 does not apply to the Master Trust.
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 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 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, PROVIDED, HOWEVER, that in all instances the Underwriter shall be
responsible for the costs and expenses of mailing and shipping any prospectus to
investors or potential investors.
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 000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxx (facsimile: (000) 000-0000).
Notices to the Company shall be given to it at 0000 X. Xxxx Xxxx, Xxxxxxx
Xxxxxxx, XX 00000; Attention: Xxxxxx X. Xxxxx (facsimile: (000) 000-0000).
11. Notwithstanding anything herein to the contrary, the Company, the
Underwriter and any other taxpayer that participates in the transactions
contemplated hereby may disclose without limitation of any kind, any information
with respect to the "tax treatment" and "tax structure" (in each case within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to any of the foregoing relating to such tax
treatment and tax structure; PROVIDED that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Securities and transactions
contemplated hereby. It is hereby confirmed that each of the foregoing has been
so authorized since the commencement of discussions regarding the transactions
contemplated hereby.
20
12. Notwithstanding anything in this Agreement to the contrary, this
Agreement constitutes the entire agreement and understanding among the parties
hereto with respect to the purchase and sale of the above-referenced Securities.
13. 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 6 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 Securities from the Underwriter shall be deemed to be a
successor merely by reason of such purchase.
14. 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.
15. 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
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
NAVISTAR FINANCIAL SECURITIES
CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Accepted: June ___, 0000
XXXX XX XXXXXXX SECURITIES LLC
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
