Exhibit 1.1
UNDERWRITING AGREEMENT
Navistar Financial Securities Corporation
Navistar Financial Dealer Note Master Owner Trust
$[___],000,000 Class A Floating Rate Dealer Note Asset Backed Notes,
Series 200 -
$[__],000,000 Class B Floating Rate Dealer Note Asset Backed Notes, Series 200 -
[_______], 200
[___________]
Ladies and Gentlemen:
Navistar Financial Dealer Note Master Owner Trust ("MASTER OWNER TRUST"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to you (the "UNDERWRITER") an aggregate of $[___],000,000 principal amount of
the Class A Floating Rate Dealer Note Asset Backed Notes, Series 200 - (the
"CLASS A NOTES") and an aggregate of $[__],000,000 principal amount of the Class
B Floating Rate Dealer Note Asset Backed Notes, Series 200 - (the "CLASS B
NOTES"). The Class A Notes will have an Expected Principal Payment Date of
[____________] and will bear interest at LIBOR plus [___]%. The Class B Notes
will have an Expected Principal Payment Date of [_________] and will bear
interest at LIBOR plus [___]%. The Class A Notes and the Class B Notes are
referred to herein collectively as the "NOTES". The property of the Master Owner
Trust will consist of a collateral certificate representing an interest in the
Navistar Financial Dealer Note Master Trust (the "DEALER NOTE TRUST"). The
property of the Dealer Note Trust includes receivables (the "RECEIVABLES")
generated from time to time in a revolving pool of dealer notes arising under
floor plan financing agreements (the "DEALER NOTE TRUST PROPERTY") conveyed to
the Dealer Note Trust by Navistar Financial Securities Corporation (the
"COMPANY"). The Notes to which this agreement applies will be issued pursuant to
the Indenture, to be dated as of [________], 200 (the "MASTER INDENTURE"),
between the Master Owner Trust and The Bank of New York, as indenture trustee
(the "INDENTURE TRUSTEE"), as supplemented by an indenture supplement (the
"INDENTURE SUPPLEMENT" and together with the Master Indenture, the "INDENTURE").
To the extent not defined herein, capitalized terms used herein shall have the
meanings specified in the Indenture.
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 Notes, 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 [________], 200 (the "PROSPECTUS SUPPLEMENT")
to the prospectus to be dated on or about [________], 200 (the "BASE
PROSPECTUS") relating to the Notes 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
Notes are hereinafter called the "PROSPECTUS."
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to sell and deliver the Notes 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) $[__],000,000 principal amount
of the Class A Notes at a price equal to [___]% of such principal amount and (y)
$[__],000,000 principal amount of the Class B Notes at a price equal to [__]% of
such principal amount.
2. Payment for the Notes shall be made to the Company or to its order by
wire transfer or other same day funds at the xxxxxx xx Xxxxxxxx & Xxxxx XXX,
Xxxxxxx, Xxxxxxxx at 9:00 A.M., Chicago time, on [_______], 200 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 Notes 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 Notes 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 note(s) representing the Notes registered in the name of
Cede & Co., as nominee for The Depository Trust Company, and in such
denominations, as permitted by the 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 Notes duly paid by the Company. The
definitive note(s) for the Notes 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
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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 "COMPANY/NFC
MATERIAL ADVERSE EFFECT");
(d) the Master Owner Trust is a statutory trust duly organized and
validly existing in good standing under the laws of the State of Delaware,
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 Master Owner Trust or
the performance of its obligations hereunder or under the Securitization
Agreements (a "MASTER OWNER TRUST MATERIAL ADVERSE EFFECT" and together
with a Company/NFC Material Adverse Effect, a "MATERIAL ADVERSE EFFECT");
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(e) each of this Agreement, the Purchase Agreement and the Pooling
and Servicing Agreement dated as of June 8, 1995 among the Company, NFC and
The Bank of New York as trustee (in its capacity as trustee thereunder, the
"DEALER NOTE TRUST TRUSTEE") (the "POOLING AND SERVICING AGREEMENT,"
together with the Purchase Agreement, the "EXISTING AGREEMENTS") has been
duly and validly authorized, executed and delivered by the Company and NFC;
(f) the execution and delivery of the Trust Agreement, the Master
Indenture, the Indenture Supplement, the Administration Agreement and the
Series 200 - Supplement, to be dated as of [_______], 200 , supplementing
the Pooling and Servicing Agreement (the "SERIES 200 - SUPPLEMENT,"
together with the Trust Agreement, the Master Indenture, the Indenture
Supplement and the Administration Agreement, the "NEW AGREEMENTS" and
together with the Existing Agreements, the "SECURITIZATION AGREEMENTS")
have been duly and validly authorized by the Company and NFC;
(g) 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 New Agreements (assuming
due authorization, execution and delivery by the Dealer Note Trust Trustee
with respect to the Series 200 - Supplement), when executed and delivered
by each of the Company and NFC, will constitute, a legal, valid and binding
agreement of each of the Company and NFC, enforceable against the Company
and NFC, each 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;
(h) the Notes, the Collateral Certificate and the Securitization
Agreements conform in all material respects to the descriptions thereof in
the Prospectus;
(i) the Notes have been duly and validly authorized and, when such
Notes are duly and validly executed by or on behalf of the Master Owner
Trust, authenticated by the Indenture Trustee and delivered in accordance
with the Master Indenture and the applicable Indenture Supplement and
delivered and paid for as provided herein, will be a legal, valid and
binding obligation of the Master Owner Trust, enforceable against the
Master Owner Trust in accordance with their terms, and validly issued and
outstanding and entitled to the benefits and security afforded by the
Master Indenture and the applicable Indenture Supplement; 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;
(j) the Collateral Certificate has been duly and validly authorized
for issuance and, when such Collateral Certificate is duly and validly
executed by or on behalf of the Dealer Note Trust and authenticated by the
Dealer Note Trust Trustee and delivered in accordance with the Pooling and
Servicing Agreement and the Series 200 - Supplement
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and paid for as provided therein, then such Collateral Certificate will be
a legal, valid and binding obligation of the Dealer Note Trust, enforceable
against the Dealer Note Trust in accordance with its terms, and it will
have been duly and validly executed, issued, authenticated and delivered
and will be entitled to the benefits of and security afforded by the
Pooling and Servicing Agreement and the Series 200 - Supplement; 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;
(k) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Notes, the
Collateral Certificate 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;
(l) 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
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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;
(m) the representations and warranties of the Company and NFC set out
in the Securitization Agreements are true and correct in all material
respects;
(n) 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 Notes, 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 Notes, or the consummation by the Company or NFC of the transactions
contemplated by this Agreement, the Securitization Agreements or the
Prospectus;
(o) 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;
(p) 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,
the Notes or the Collateral Certificate, (ii) seeking to prevent the
issuance of the Notes or the Collateral Certificate 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, the Notes or the Collateral Certificate, (iv) seeking to affect
adversely the federal income tax attributes of the Notes or the Collateral
Certificate described in the Prospectus or (v) that if determined adversely
as to either the Company or NFC would have a Material Adverse Effect;
(q) 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;
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(r) any taxes, fees, and other governmental charges in connection
with the execution and delivery of this Agreement and the Securitization
Agreements, the execution, delivery and transfer of the Collateral
Certificate and the execution, delivery, and sale of the Notes have been or
will be paid at or before the Closing Date;
(s) on the Closing Date, after giving effect to all transactions
occurring on the Closing Date, including the issuance of Notes and any
deposit to the Excess Funding Account, the Seller's Invested Amount will be
at least equal to the Minimum Seller's Invested Amount;
(t) the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and neither the Company nor the
Dealer Note Trust is required to be registered under the Investment Company
Act;
(u) the Indenture has been qualified under the Trust Indenture Act,
and the Master Owner Trust is not required to be registered under the
Investment Company Act;
(v) 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
(w) 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, 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 SECTION 4(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)
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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 Notes 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 Notes as in the opinion of counsel for the Underwriter or
in the opinion of counsel for the Company a prospectus relating to the
Notes 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 Notes 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, 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 Notes 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 Notes 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 Notes
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 Owner Trust to make generally available to
holders of the Notes 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 45 days after the end of the fourth full fiscal
quarter (90 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 Owner Trust (which need not be audited) complying
with Section 11(a) of the Securities Act and covering a period of at least
12 consecutive months beginning after the Effective Date;
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(h) so long as the Notes 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 Dealer Note Trust Trustee pursuant to the 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 Notes, including any expenses of the
Dealer Note Trust Trustee, Indenture Trustee and Owner 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 Notes 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 Notes;
(j) so long as any of the Notes 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 Noteholders or filed with the
Commission pursuant to the Securities 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 a rating provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes 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 Dealer Note Trust to increase the amount outstanding under
a variable funding certificate that has been placed with any asset-backed
commercial paper vehicle.
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5. The obligation of the Underwriter hereunder to purchase the Notes 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, the registration, authorization, issue, transfer and delivery
of the Collateral Certificate and the registration, authorization, issue,
sale and delivery of the Notes 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 LLP, 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 Notes has been duly authorized and
when the Notes have been executed by the Company and duly
authenticated by the Indenture Trustee in accordance with the
provisions of the Indenture and delivered to the Underwriter against
payment of the agreed consideration therefor in accordance with the
terms of this Agreement, the Notes will be duly executed,
authenticated, issued and delivered and will be entitled to the
benefits provided by the Indenture, in accordance with its terms;
(ii) (A) this Agreement has been duly authorized, executed and
delivered by the Company and NFC; and each of the Existing Agreements
constitutes the legal, valid and binding agreement of each of the
Company and NFC, enforceable against the Company and NFC in accordance
with their terms, (B) each of the Administration Agreement and the
Master Indenture (assuming due authorization, execution and delivery
by the Owner Trustee and the Indenture Trustee with respect to the
Administration Agreement), when executed and delivered by NFC, will
constitute, a legal, valid and binding agreement of NFC, enforceable
against NFC in accordance with its terms and (C) each of the Series
200 - Supplement and the Trust Agreement (assuming due authorization,
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execution and delivery by the Dealer Note Trust Trustee with respect
to the Series 200 - Supplement) constitutes the legal, valid and
binding agreement of each of the Company and NFC, enforceable against
the Company and NFC in accordance with its terms;
(iii) the execution and delivery by the Company of this
Agreement, the Notes, the Collateral Certificate, the Registration
Statement, the Series 200 - Supplement and the Trust Agreement, and,
as Master Owner Trust Beneficiary on behalf of the Master Owner Trust,
of the Master Indenture and the Indenture Supplement, 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 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, the
Administration Agreement, the Master Indenture, the Series 200 -
Supplement and the Trust Agreement 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
-11-
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 Notes
and the Securitization Agreements conform in all material respects to
the descriptions thereof in the Registration Statement and the
Prospectus;
(vi) the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and neither the Company, the
Master Owner Trust nor the Dealer Note Trust is required to be
registered under the Investment Company Act;
(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 Notes, 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;
-12-
(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, threatened or contemplated by the Commission;
(ix) (A) the Company has full power and authority to execute
the Registration Statement and to consummate the transactions
contemplated therein, (B) the Company, as Master Owner Trust
Beneficiary on behalf of the Master Owner Trust, has full power to
execute and deliver the Master Indenture and the Indenture Supplement
and to consummate the transactions contemplated therein. (C) NFC has
full power and authority to execute the Administration Agreement and
the Master Indenture and to consummate the transactions contemplated
therein and (D) the Company and NFC each have full power and authority
to execute and deliver this Agreement, the Series 200 - Supplement and
the Trust Agreement and to consummate the transactions contemplated
herein and therein;
(x) the Master Indenture and Indenture Supplement have been
duly executed and delivered by the Company on behalf of the Master
Owner Trust;
(xi) the issuance of the Collateral Certificate has been duly
authorized by all necessary action on the part of the Company and has
been duly executed and delivered by the Company. The Collateral
Certificate, when authenticated and delivered in accordance with the
Pooling and Servicing Agreement to the Indenture Trustee, will be
validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement;
(xii) the Trust Agreement, the Indenture and the Administration
Agreement constitute the legal, valid and binding agreements of the
Master Owner Trust enforceable against the Master Owner Trust in
accordance with their respective terms; and
(xiii) the Master Indenture and the Indenture Supplement have
been qualified under the Trust Indenture Act, and the Master Owner
Trust is not required to be registered under the Investment Company
Act.
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
-13-
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, 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 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 LLP 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 Notes.
(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;
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(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;
(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, the
Notes and the Collateral Certificate, 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 and the
Collateral Certificate," 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
-15-
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 [__________], special counsel for the Dealer Note Trust Trustee
and the Indenture Trustee, 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) [___________] is a [______] duly incorporated and validly
existing under the laws of [_________];
(ii) Each of the Dealer Note Trust Trustee and the Indenture
Trustee has the requisite power and authority to execute, deliver and
perform its obligations under each of the Agreements to which it is a
party, and has taken all necessary action to authorize the execution,
delivery and performance by it of each of the Agreements to which it
is a party. For purposes of this SECTION (h) "AGREEMENTS" shall mean
the Master Indenture, the Indenture Supplement, the Pooling and
Servicing Agreement, the Series 200 - Supplement and the
Administration Agreement;
(iii) each of the Agreements to which the Indenture Trustee is a
party has been duly executed and delivered by the Indenture Trustee,
and constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with
its respective terms, except that certain of such obligations may be
enforceable solely against the Owner Trust Estate, subject, as to
enforcement, to (A) the effect of bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, receivership, conservatorship
and similar laws relating to or affecting creditors' rights generally
and (B) the application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law));
(iv) each of the Agreements to which the Dealer Note Trust
Trustee is a party has been duly executed and delivered by the Dealer
Note Trustee, and constitutes a legal, valid and binding obligation of
the Dealer Note Trust Trustee, enforceable against the Dealer Note
Trust Trustee in accordance with its
-16-
respective terms, except that certain of such obligations may be
enforceable solely against the Dealer Note Trust Property, subject, as
to enforcement, to (A) the effect of bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, receivership,
conservatorship and similar laws relating to or affecting creditors'
rights generally and (B) the application of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law));
(v) the Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of
the Indenture;
(vi) the Collateral Certificate delivered on the date hereof
has been duly authenticated by the Dealer Note Trust Trustee in
accordance with the terms of the Pooling and Servicing Agreement and
the Series 200 - Supplement.
(vii) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or of
the State of New York having jurisdiction over the banking or trust
powers of the Indenture Trustee or the Dealer Note Trust Trustee, as
the case may be, is required in connection with (a) the execution and
delivery by the Indenture Trustee of the Agreements to which it is a
party or (ii) the execution and delivery by the Dealer Note Trust
Trustee of the Agreements to which it is a party;
(viii) none of (a) the authentication and delivery of the Notes
or the Collateral Certificates, (b) the execution, delivery and the
performance by the Indenture Trustee of the Agreements to which it is
a party or (c) the execution, delivery and the performance of the
Agreements by the Dealer Note Trust Trustee to which it is a party,
conflicts with or will result in a violation of (A) any law or
regulation of the United States of America or the State of New York
governing the banking or trust powers of the Indenture Trustee or the
Dealer Note Trust Trustee or (B) the Articles of Incorporation or
Bylaws of the Indenture Trustee or the Dealer Note Trust Trustee, as
the case may be.
(i) The Underwriter shall have received on the Closing Date a signed
opinion of [__________], special counsel for the Owner Trustee, 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) [___________] is a [______] in good standing under the
laws of [________] and has the power and authority to execute, deliver
and perform the Trust Agreement and to consummate the transactions
contemplated thereby, and, as Owner Trustee on behalf of the Master
Owner Trust, to execute and deliver the Administration Agreement and
the Notes;
(ii) the Trust Agreement has been duly executed and delivered
by the Owner Trustee and constitutes the legal, valid and binding
obligation of the
-17-
Owner Trustee enforceable against the Owner Trustee in accordance with
its terms;
(iii) the Administration Agreement has been duly executed and
delivered by the Owner Trustee on behalf of the Master Owner Trust;
(iv) neither the execution, delivery or performance by the
Owner Trustee of the Trust Agreement or, as Owner Trustee on behalf of
the Master Owner Trust, of the Administration Agreement, nor the
consummation of any of the transactions by the Owner Trustee
contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the
State of New York or the United States of America governing the
banking or trust powers of the Owner Trustee, other than the filing of
the banking or Certificate of Trust for the Master Owner Trust with
the Delaware Secretary of State;
(v) neither the execution, delivery or performance by the
Owner Trustee of the Trust Agreement or, as Owner Trustee on behalf of
the Master Owner Trust, of the Administration Agreement, nor the
consummation of any of the transactions by the Owner Trustee
contemplated thereby, is in violation of the certificate of
organization or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of New York or of the
United States of America governing the banking or trust powers of the
Owner Trustee or, to such counsel's knowledge, without independent
investigation, any indenture, mortgage, bank credit agreement, note or
bond purchase agreement, long-term lease, license or other agreement
or instrument to which it is a party or by which it is bound or, to
such counsel's knowledge, without independent investigation, or any
judgment or order of the State of New York or the United States of
America applicable to the Owner Trustee or its properties; and
(vi) to such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings against the Owner Trustee in any court or before any other
governmental authority of the State of New York which, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee to enter into or perform its obligations under the Trust
Agreement.
(j) The Underwriter shall have received on the Closing Date a signed
opinion of [__________], special Delaware counsel for the Master Owner
Trust, 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 Master Owner Trust has been duly formed and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, 12 DEL. C. 3801 ET SEQ. (referred to in this
SECTION 6(j) as the "TRUST ACT"), and has the power and authority
under the Trust Agreement and the Trust Act to
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execute, deliver and perform its obligations under the Master Owner
Trust Documents and the Notes;
(ii) the Trust Agreement is a legal, valid and binding
obligation of the Company and the Owner Trustee, enforceable against
the Company and the Owner Trustee, in accordance with its terms;
(iii) under the Trust Act and the Trust Agreement, the execution
and delivery of the Master Indenture, the Indenture Supplement and the
Administration (collectively, the "MASTER OWNER TRUST DOCUMENTS"), the
issuance of the Notes, and the granting of the Collateral to the
Indenture Trustee as security for the Notes has been duly authorized
by all necessary trust action on the part of the Master Owner Trust;
(iv) The Master Owner Trust Documents, the Master Owner Trust
Certificate and the Notes have been duly executed and delivered by the
Trust;
(v) The Master Owner Trust Certificate has been duly
authorized by the Trust and, when executed by the Trust, authenticated
by the Owner Trustee and delivered to the purchasers thereof in
accordance with the Trust Agreement, the Master Owner Trust
Certificate will be validly issued and entitled to the benefits of the
Trust Agreement;
(vi) neither the execution, delivery or performance by the
Master Owner Trust of the Master Owner Trust Documents or the Notes,
nor the consummation of any of the transactions by the Master Owner
Trust contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to or,
the filing, registration or qualification with, or the taking or any
other action in respect of, any governmental authority or agency of
the State of Delaware, other than the filing of the Certificate of
Trust with the Delaware Secretary of State (which certificate of trust
has been duly filed) and the filing of any UCC financing statements
with the Delaware Secretary of State pursuant to the Indenture;
(vii) neither the execution, delivery and performance by the
Master Owner Trust of the Master Owner Trust Documents, nor the
consummation by the Master Owner Trust of the transactions
contemplated thereby, is in violation of the Trust Agreement or of any
law, rule or regulation of the State of Delaware applicable to the
Master Owner Trust;
(viii) with respect to the Master Owner Trust and the
Receivables: (a) there is no document, stamp, excise or other similar
tax imposed by the State of Delaware upon the perfection of a security
interest in the Collateral Certificate or the Receivables, in the
transfer of the Collateral Certificate or the Receivables to or from
the Master Owner Trust or the Dealer Note Trust or upon the issuance
of the Master Owner Trust Certificate or the Notes; (b) there is no
personal property tax imposed by the State of Delaware upon or
measured by the corpus of the
-19-
Master Owner Trust or the Dealer Note Trust; (c) the characterization
of the Master Owner Trust and the Dealer Note Trust for federal income
tax purposes will be determinative of the characterization of the
Master Owner Trust and the Dealer Note Trust for Delaware income tax
purposes and assuming the Master Owner Trust and the Dealer Note Trust
will not be taxed as associations or as publicly traded partnerships
for federal income tax purposes, neither the Master Owner Trust nor
the Dealer Note Trust will be subject to Delaware income tax and
Noteholders who are not otherwise subject to Delaware income tax will
not be subject to tax by reason of their ownership of the Notes and
the receipt of income therefrom; and (d) any income tax imposed by the
State of Delaware that might be applicable to the Master Owner Trust
would be based on "federal taxable income," and for the purposes of
determining such income, the characterization of such income for
federal income tax purposes will be determinative, whether the
characterization of the transaction is that of a sale or a loan; and
(ix) the Company is the sole beneficial owner of the Master
Owner Trust.
(k) On the Closing Date, and after giving effect to all transactions
occurring on the Closing Date, including the issuance of the Notes and any
deposit to the Excess Funding Account, the Seller's Invested Amount shall
be at least equal to the Minimum Seller's Invested Amount.
(l) At or prior to the Closing Date, the Class A Notes shall be rated
"Aaa" by Xxxxx'x Investors Service, Inc. and "AAA" by Standard & Poor's
Ratings Services and the Class B Notes shall be rated "[A2]" by Xxxxx'x
Investors Service, Inc. and "[A-]" by Standard & Poor's Ratings Services.
(m) 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.
-20-
(n) 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 Notes,
the Securitization Agreements, the Prospectus and such 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.
(o) 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 LLP, 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 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 Notes 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 Notes
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 Notes 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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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 SECTIONS 3(a) and
(b) 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 Notes 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 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
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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
Notes or (ii) if the allocation provided by CLAUSE (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in CLAUSE (i) above but also the relative fault of
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 Notes. 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 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 Notes
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.
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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 Notes.
7. The Underwriter represents and agrees that:
(a) it has complied and will comply with all applicable provisions of
the Financial Services and Markets Xxx 0000 ("FSMA") and the Public Offers
of Securities Regulations 1995 (the "REGULATIONS") with respect to anything
done by it in relation to the notes in, from or otherwise involving the
United Kingdom;
(b) it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of its business;
(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 FSMA)
received by it in connection with the issue or sale of any notes in
circumstances in which section 21(1) of the FSMA does not apply to the NFC
or the Company; and
(d) it has not offered or sold and, prior to the date which is six
months after the date of issue of the notes will not offer or sell any note
to persons in the United Kingdom except 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 purposes of the Regulations.
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 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 Notes on the terms and in the manner contemplated in
the Prospectus.
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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, 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 [__________], Attention:
[______] (facsimile: [________]. 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 Notes 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.
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 Notes.
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
Notes 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.
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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.
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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: [________], 200
[___________]
By:
-------------------------------
Name:
Title:
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