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EXHIBIT 1.1
UNDERWRITING AGREEMENT
Navistar Financial Securities Corporation
Navistar Financial Dealer Note Master Trust
$[__________]
Series 1997-1 Floating Rate Dealer Note Asset Backed Certificates
August __, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Navistar Financial Securities Corporation, a Delaware corporation (the
"Company"), as originator of the Navistar Financial Dealer Note Master Trust
(the "Master Trust"), proposes, subject to the terms and conditions stated
herein, to cause to be issued and sold to the underwriters listed in Schedule I
hereto (the "Underwriters") an aggregate of [$___________] principal amount of
the Series 1997-1 Floating Rate Dealer Note Asset Backed Certificates (the
"Securities"). The Securities will be issued by the Master Trust pursuant to a
Pooling and Servicing Agreement, dated as of June 8, 1995, and a Series 1997-1
Supplement dated as of [August __, 1997] (collectively, the "Master 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 Pooling and Servicing Agreement.
The Master Trust assets in which the Securities will have an undivided
interest include a Seller Certificate (the "Seller Certificate"), issued
pursuant to a Pooling and Servicing Agreement, dated as of November 1, 1990 and
amended as of May 26, 1993, and March 23, 1995 (as further amended as of June
8, 1995, and October 16, 1996, the "Existing Pooling and Servicing Agreement")
and a Class A-5 Pass-Through Certificate (the "Class A-5 Certificate") issued
pursuant to the Existing Pooling and Servicing Agreement as supplemented by a
Supplement A-5 to the Existing Pooling Servicing Agreement, to be dated as of
[August
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__, 1997](the "Class A-5 Supplement"; the Existing Pooling and Servicing
Agreement as supplemented by the Class A-5 Supplement is referred to herein as
the "1990 Pooling and Servicing Agreement"), each among the Company, NFC, as
servicer, and The Chase Manhattan Bank (as successor to Manufacturers Hanover
Trust Company), as trustee (the "1990 Trustee"). The trust formed pursuant to
the 1990 Pooling and Servicing Agreement is referred to herein as the "1990
Trust."
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-[___]), 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 Underwriters. The Seller proposes to file with the
Commission pursuant to Rules 424(b)(5) and 424(c) under the Securities Act a
supplement dated [August __, 1997] (the "Prospectus Supplement") to the
prospectus dated [August __, 1997](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 Seller 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 Underwriters as follows:
1. The Company agrees to sell and deliver the Securities to the
Underwriters as hereinafter provided, and the Underwriters, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite each Underwriter's name in Schedule I hereto at a price equal to
[__________]% of their principal amount plus accrued interest, if any, from
[August __, 1997] to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Securities as soon as they deem advisable after this
Agreement has become effective and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by wire transfer or other same day funds at the
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office of Xxxxxxxx & Xxxxx, Chicago, Illinois at 9:00 A.M., Chicago time, on
[August __, 1997], or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Underwriters 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
Underwriters 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 Depositary Trust Company and in such denominations, as permitted by the
Master Pooling and Servicing Agreement, as the Underwriters 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 Underwriters
of the Securities duly paid by the Company. The certificate(s) for the
Securities will be made available for inspection and packaging by the
Underwriters in New York, New York not later than 1:00 P.M., New York City
time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each of the Underwriters
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 any Underwriter furnished to the Company in
writing by such 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
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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 any Underwriter furnished to the Company in writing by
such 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 Master Pooling and
Servicing Agreement, the Existing Pooling and Servicing Agreement, the
1990 Purchase Agreement and the Contribution Agreement (as defined in
the Existing Pooling and Servicing Agreement) (collectively, excluding
this Agreement, the " Existing Agreements") has been duly authorized,
executed and delivered by the Company and NFC;
(e) the execution and delivery of the Series 1997-1
Supplement, the Class A-5 Supplement and the Purchase Agreement
(collectively, the "Additional Agreements" and, together with the
Existing Agreements, the "Securitization
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Agreements") have been duly and validly authorized by the Company and
NFC;
(f) this Agreement constitutes the valid and binding
agreement of the Company and NFC; and each Existing Agreement
constitutes, and when executed and delivered by each of the Company
and NFC, each Additional Agreement will (assuming due authorization,
execution and delivery by the 1990 Trustee or the Master Trust
Trustee, as applicable) constitute, a legal, valid and binding
agreement of each of the Company and NFC, enforceable against the
Company and NFC in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought;
(g) the 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 Pooling and Servicing Agreement, and delivered to and paid for
by the Underwriters 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 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 Class A-5 Certificate has been duly and validly
authorized for issuance and, when executed by the Company and
authenticated by the 1990 Trustee in accordance with the provisions of
the 1990 Pooling and Servicing Agreement, and delivered to the Master
Trust Trustee in accordance with the terms of the Master Pooling and
Servicing Agreement, will have been duly executed, authenticated,
issued and delivered and will be entitled to the benefits of the 1990
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
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equity and the discretion of the court before which any proceeding
therefor may be brought;
(j) the Seller Certificate has been duly and validly
issued, executed and authenticated in accordance with the provisions
of the 1990 Pooling and Servicing Agreement, and is entitled to the
benefits of the 1990 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;
(k) 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, Navistar
International Transportation Corporation ("NITC") 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, NITC 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
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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, NITC 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, NITC
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 of 1934
(the "Exchange Act") or as may be required under the securities or
Blue Sky laws of the various states of the United States of America)
is required for the valid authorization, issuance, sale and delivery
of the 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;
(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
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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 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 on either the
Company or NFC;
(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 NITC or NFC since the end of the most recent
fiscal quarter of NITC or NFC;
(r) 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;
(s) the Dealer Notes and/or Investment Securities held by the
1990 Trust on the Closing Date (after giving effect to all
transactions occurring on such date) will have an aggregate principal
amount of not less than $[___________];
(t) neither the Master Pooling and Servicing Agreement nor the
1990 Pooling and Servicing Agreement is required to be qualified under
the Trust Indenture Act of 1939, as amended (the " Trust Indenture
Act"), and none of the Company, the 1990 Trust or the Master Trust is
required to be registered under the Investment Company Act of 1940, as
amended (the " Investment Company Act");
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(u) 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
(v) 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.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rules 424(b)(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, [four] signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits, to the Underwriters, and (ii) during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) as the Underwriters may
reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to the
Underwriters and their 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 Underwriters or their counsel reasonably
object;
(d) to advise the Underwriters 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
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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 Underwriters 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 an Underwriter or dealer, any
event shall occur or information shall become known as a result of
which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances at
the time the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply
with law, forthwith to, at the sole expense of the Company, prepare
and, subject to Section 5(c) above, file with the Commission, and
furnish to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
Securities may have been sold by the Underwriters 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;
(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 Underwriters 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
Underwriters) 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
Underwriters 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 Underwriters, in accordance
with Rule 158 under the Securities Act or otherwise, as soon as
practicable, but in
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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 Underwriters 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 Pooling and Servicing Agreement and to the 1990 Trustee
pursuant to the 1990 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 1990 Trustee and 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 Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein
provided, and (v) payable to rating agencies in connection with the
rating of the Securities;
(j) so long as any of the Securities are outstanding, to
furnish to the Underwriters as soon as practicable after the end of
the fiscal year, (i) all documents required to be distributed to
security holders of either the Master Trust or the 1990 Trust or filed
with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder and (ii) from time to time, any other
information concerning
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the Company filed with any government or regulatory authority that is
otherwise publicly available, as the Underwriters may reasonably
request; and
(k) to the extent, if any, that the 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 Underwriters 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 Underwriters' prior written consent,
which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, the Company and NFC may at any time cause the Master Trust to issue
a variable funding certificate to be placed with any single-seller asset-backed
commercial paper vehicle administered by NFC.
6. The several obligations of the Underwriters hereunder to purchase
the Securities are 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 Underwriters.
(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
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Underwriters, 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 Underwriters 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
Underwriters and counsel to the Underwriters, dated the Closing Date
and addressed to the Underwriters, to the effect that:
(i) 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 Pooling and Servicing Agreement,
and delivered to and paid for by the Underwriters in
accordance with the terms hereof, will have been duly
executed, authenticated, issued and delivered and will be
entitled to the benefits provided by the Master Pooling and
Servicing Agreement, in accordance with its terms;
(ii) the Class A-5 Certificate has been duly and
validly authorized for issuance and, when executed by the
Company and authenticated by the 1990 Trustee in accordance
with the provisions of the 1990 Pooling and Servicing
Agreement, and delivered to the Master Trust Trustee in
accordance with the terms of the Master Pooling and Servicing
Agreement, will have been duly executed, authenticated, issued
and delivered and will be entitled to the benefits of the 1990
Pooling and Servicing Agreement, in accordance with its terms;
(iii) this Agreement has been duly authorized,
executed and delivered on the part of the Company and NFC and
is a valid and binding agreement of each of the Company and
NFC; and each Existing Agreement constitutes, and when
executed and delivered by each of the Company and NFC, each
Additional Agreement will constitute, a legal, valid and
binding agreement of each of the Company and NFC (and assuming
due authorization, execution and delivery by the 1990 Trustee
or the Master Trust Trustee, as applicable, with respect to
the Additional Agreements), enforceable against the Company
and NFC in accordance with its terms,
(iv) the execution and delivery by the Company of,
and the performance by the Company of all of its obligations
under, this Agreement, the Class A-5
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Certificate, the Securities and the Securitization Agreements,
and the consummation by the Company of the transactions
contemplated herein and therein and in the Prospectus, (A)
have been duly authorized by all necessary corporate action on
the part of the Company, (B) do not and will not result in any
violation of the Certificate of Incorporation or the By-laws
of the Company and (C) 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 (1) any contract,
indenture, mortgage, deed of trust, loan agreement, note,
lease, partnership agreement or other agreement or instrument
to which the Company, NFC, NITC 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 officers' certificate as being material
to the Company, NFC, NITC or NIC (except that such counsel
need not express any opinion with respect to conflicts,
breaches or defaults under cross-default provisions arising
out of a default under any agreement not so specified in such
officers' 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 any law (x)
which might be violated by any misrepresentation or omission
of fact or a fraudulent act in connection with the
transactions contemplated by this Agreement or (y) to which
the Company, NFC, NITC or NIC may be subject solely as a
result of the Underwriters' (as opposed to underwriters
generally) legal or regulatory status, or the Underwriters'
(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,
known to such counsel
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and having jurisdiction over the Company, NFC, NITC or NIC or
any of their respective properties or assets;
(v) 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, (A) have been duly
authorized by all necessary corporate action on the part of
NFC, (B) do not and will not result in any violation of the
Certificate of Incorporation or the By-laws of NFC and (C) 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 (1) any
contract, indenture, mortgage, deed of trust, loan agreement,
note, lease, partnership agreement or other agreement or
instrument to which the Company, NFC, NITC 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 officers' certificate as being
material to the Company, NFC, NITC or NIC (except that such
counsel need not express any opinion with respect to
conflicts, breaches or defaults under cross-default provisions
arising out of a default under any agreement not so specified
in such officers' 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 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 any law (x) which might be
violated by any misrepresentation or omission of fact or a
fraudulent act in connection with the transactions
contemplated by this Agreement or (y) to which the Company,
NFC, NITC or NIC may be subject solely as a result of the
Underwriters' (as opposed to underwriters generally) legal or
regulatory status, or the Underwriters' (as opposed to
underwriters generally) involvement in the transactions
contemplated by this
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Agreement or (3) any judgment, order or decree of any
government, governmental instrumentality, agency, body or
court, domestic or foreign, known to such counsel and having
jurisdiction over the Company, NFC, NITC or NIC or any of
their respective properties or assets;
(vi) the statements contained in the Registration
Statement under the headings "Federal Income Tax Matters,"
"Certain State Tax Matters," "ERISA Considerations" and
"Certain Matters Relating to Bankruptcy" to the extent that
they constitute statements of matters of law or legal
conclusions with respect thereto, are correct in all material
respects; and the Securities, the Class A-5 Certificate and
the Securitization Agreements conform in all material respects
to the descriptions thereof in the Prospectus set forth under
the caption "Description of the Offered Certificates";
(vii) neither the Master Pooling and Servicing
Agreement nor the 1990 Pooling and Servicing Agreement is
required to be qualified under the Trust Indenture Act, and
none of the Company, the 1990 Trust and the Master Trust is
required to be registered under the Investment Company Act;
(viii) no authorization, approval, consent, order,
registration, qualification or license of, or filing with, any
government, governmental instrumentality, agency, body or
court, domestic or foreign, is required for the valid
authorization, issuance, sale and delivery of the Securities
or the Class A-5 Certificate, 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 Class A-5 Certificate or the
consummation by the Company or NFC of the transactions
contemplated hereby, thereby or by the Prospectus, except such
consents, approvals, authorizations, registrations,
qualifications or licenses as have been obtained under the
Securities Act and as may be required under state securities
or Blue Sky laws of the various states of the United States of
America, and such other consents, approvals, authorizations,
registrations, qualifications, or licenses as have been
obtained, with such counsel specifying the same; and
(ix) the Registration Statement at the time it
became effective and the Prospectus as of its date and any
further amendments and supplements thereto made by
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the Company prior to the Closing Date (other than financial,
statistical and accounting data therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act.
Such counsel shall also advise, based on its 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 Underwriters and counsel to the Underwriters,
that nothing has come to its attention that leads it to believe that
the Registration Statement and any post-effective amendment thereto
(other than the financial statements, supporting schedules and other
financial and statistical data set forth therein, as to which no
advice need be given), at the time such Registration Statement or
post-effective amendment became effective or at the Closing Date,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (as supplemented, if applicable) other than the
financial statements, supporting schedules and other financial and
statistical data set forth therein, as to which no advice need be
given), as of its date or as of the Closing 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.
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 Underwriters
a letter stating that the Underwriters may rely on their opinions, as
special counsel to the Company and NFC, as delivered to Xxxxx'x
Investors Service, Inc. and
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Standard & Poor's Ratings Group in connection with the rating of the
Securities.
(f) The Underwriters shall have received on the Closing
Date a signed opinion of Xxxxxxx X. Xxxxx, General Counsel of NFC, in
form and substance reasonably satisfactory to the Underwriters and
counsel to the Underwriters, dated the Closing Date and addressed to
the Underwriters, to the effect that:
(i) each of the Company and NFC has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with full
power and authority (corporate and other) to own, lease and
operate its properties and to conduct its business;
(ii) except as described in the Registration
Statement and the Prospectus, there is no action, suit or
proceeding before or by any government, governmental
instrumentality, agency, body or court, domestic or foreign,
now pending or, to the best knowledge of such counsel,
threatened against or affecting the Company, NFC, NITC 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,
NITC 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 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
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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, NITC 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, NITC or NIC or any of their respective
properties or assets; and
(iv) the statements contained in the Registration
Statement under the heading "Certain Matters Relating to the
Dealer Notes," to the extent that they constitute statements
of matters of law or legal conclusions with respect thereto,
are correct in all material respects.
Such counsel shall also advise, based on his participation in
the preparation of the Registration Statement and the Prospectus and
conferences with officers and representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and counsel to the Underwriters,
that nothing has come to his attention that leads him to believe that
the Registration Statement and any post-effective amendment thereto
(other than the financial statements, supporting schedules and other
financial and statistical data set forth therein, as to which no
advice need be given), at the time such Registration Statement or
post-effective amendment became effective or at the Closing Date,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (as supplemented, if applicable) (other than the
financial statements, supporting schedules and other financial and
statistical data set forth therein, as to which no advice need be
given), as of its date or as of the Closing 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.
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(g) On the date hereof and at the Closing Date, Deloitte
& Touche shall have furnished to the Underwriters letters, dated the
respective date of delivery thereof, in form and substance
satisfactory to the Underwriters.
(h) Counsel to each of the 1990 Trustee and the Master
Trust Trustee shall have furnished to the Underwriters written
opinions, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(i) The Dealer Notes and/or Investment Securities held by
the 1990 Trust on the Closing Date (after giving effect to all
transactions occurring on such date) will have an aggregate principal
amount of not less than $[___________].
(j) At or prior to the Closing Date, the Securities shall
be rated "Aaa" by Xxxxx'x Investors Service, Inc. and "AAA" by
Standard & Poor's Ratings Group.
(k) The Company shall have furnished or caused to be furnished
to the Underwriters a certificate, dated the Closing Date, by either
the President or a Vice President of NITC and NFC (in his capacity as
such) to the effect that the signer of such certificate has carefully
examined the Securitization Agreements and to the effect that: (i) the
representations and warranties of the Company and NFC contained in
such agreements are true and correct in all material respects at and
as of the Closing Date with the same effect as if made at the Closing
Date, (ii) the Company and NFC have complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened, (iv) there shall have been no
material adverse change in the business, results of operation or
financial condition or the material properties or assets of NITC or
NFC since the end of the most recent fiscal quarter of NITC 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 Underwriters shall have received on and as of the
Closing Date an opinion dated the Closing Date of Xxxxx, Xxxxx &
Xxxxx, counsel to the Underwriters, addressed to the Underwriters and
in form and substance satisfactory to the Underwriters with respect to
the validity of the Securities,
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the Master Pooling and Servicing Agreement, the Registration
Statement, the Prospectus and other related matters as the
Underwriters 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 Underwriters such further certificates and
documents as the Underwriters or their counsel, Xxxxx, Xxxxx & Xxxxx,
shall reasonably request.
7. (a) The Company and NFC will jointly and severally indemnify and
hold harmless each Underwriter and each Person who controls any Underwriter
within the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters or any of them may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter and each Person who
controls any Underwriter within the meaning of the Securities Act for any
actual legal or other expenses reasonably incurred by the Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Company nor NFC will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company or NFC by any Underwriter specifically for
use therein.
(b) Each Underwriter, severally, agrees to indemnify and hold
harmless the Company and NFC against any losses, claims, damages or liabilities
to which the Company or NFC, as applicable, may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the 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 each case to the extent, but only to the extent,
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that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to NFC, as applicable, by such Underwriter specifically for use
therein, and will reimburse any actual legal or other expenses reasonably
incurred by the Company or NFC, as applicable, in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action or the assertion by a third
party of a claim, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party except and to the extent of any prejudice
to such indemnifying party arising from such failure to provide such notice. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company or NFC on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not
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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 or NFC on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company or NFC on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
(before deducting expenses) received by the Company or NFC bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or NFC or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to the Securities purchased by such
Underwriter hereunder. 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.
(e) The obligations of the Company and NFC under this Section
shall be in addition to any liability that the Company or NFC may otherwise
have and shall extend, upon the same terms and conditions, to each Person, if
any, who controls any Underwriter within the meaning of the Securities Act; and
the obligations of any Underwriter under this Section shall be in addition to
any liability that such Underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company and NFC, to each
officer of the Company or NFC who signed the Registration Statement and to each
Person, if any, who controls the Company or NFC within the meaning of the
Securities Act.
(f) The respective indemnities, agreements, representations,
warranties and other statements of the Company or NFC or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation or statement as to the
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results thereof, made by or on behalf of the Underwriters, the Company or NFC
or any of their respective representatives, officers or directors or any
controlling Person, and will survive delivery of and payment for the
Securities.
8. Each of the Underwriters represents and agrees that:
(a) it has not offered or sold, and will not offer or
sell, any Series 1997-1 Certificates to persons in the United Kingdom,
other than to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted, and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 of Great Britain with
respect to anything done by it in relation to the Series 1997-1
Certificates in, from or otherwise involving the United Kingdom; and
(c) it has only issued or passed on, and will only issue
or pass on, in the United Kingdom any document in connection with the
issue of Series 1997-1 Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000, as
amended, (Investment Advertisements) (Exceptions) Order 1996, as
amended, or is otherwise a person to whom the document may otherwise
lawfully be issued or passed on.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, 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 Underwriters, is material and adverse and which, in the judgment of the
Underwriters, makes it impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated in the Prospectus.
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10. If this Agreement shall be terminated by the Underwriters 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 Underwriters for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by Credit Suisse First Boston Corporation alone on
behalf of the Underwriters, and any such action taken by Credit Suisse First
Boston Corporation alone shall be binding upon the Underwriters. 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 Underwriters
shall be given to the Underwriters, c/o Credit Suisse First Boston Corporation,
00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking
Department-Transactions Advisory Group (facsimile: (212) [___________].
Notices to the Company shall be given to it at 0000 X. Xxxx Xxxx, Xxxxxxx
Xxxxxxx, XX 00000; Attention: Xxxxxxx X. Xxxxx (facsimile: (000) 000-0000).
12. This Agreement shall inure to the benefit of and be binding upon
the Underwriters 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 Underwriters and the
Company and their respective successors, heirs and legal representatives and
the controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
13. 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.
14. 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:_____________________________
Name:
Title:
NAVISTAR FINANCIAL CORPORATION
By:_____________________________
Name: R. Xxxxx Xxxx
Title: Vice President Treasurer
Accepted: August __, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
By:________________________________
Name:
Title:
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SCHEDULE I
Principal Amounts
of Securities
Underwriter to be Purchased
----------- -----------------
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . . . . .
