Exhibit 4.11
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MASTER OWNER TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL SECURITIES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
MASTER OWNER TRUST TRUSTEE
DATED AS OF ______ _, 200_
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................................................................1
SECTION 1.1 Definitions and Rules of Construction.............................................................1
ARTICLE II ORGANIZATION...........................................................................................3
SECTION 2.1 Name..............................................................................................3
SECTION 2.2 Office............................................................................................3
SECTION 2.3 Purposes and Powers...............................................................................3
SECTION 2.4 Appointment of Master Owner Trust Trustee.........................................................5
SECTION 2.5 Initial Capital Contribution of Master Owner Trust Estate.........................................5
SECTION 2.6 Declaration of Trust..............................................................................5
SECTION 2.7 Liability of the Master Owner Trust Certificateholders............................................6
SECTION 2.8 Title to Trust Property...........................................................................6
SECTION 2.9 Situs of Trust....................................................................................6
SECTION 2.10 Representations and Warranties of the Seller.....................................................7
SECTION 2.11 Transfer of Collateral Certificate...............................................................8
SECTION 2.12 Representations and Warranties of the Seller.....................................................8
SECTION 2.13 Protection of Title to Collateral Certificate....................................................9
SECTION 2.14 Assignment to Indenture Trustee.................................................................10
ARTICLE III THE MASTER OWNER TRUST CERTIFICATES..................................................................10
SECTION 3.1 Initial Master Owner Trust Certificate Ownership.................................................10
SECTION 3.2 Form of the Master Owner Trust Certificates......................................................10
SECTION 3.3 Execution, Authentication and Delivery...........................................................11
SECTION 3.4 Registration; Registration of Transfer and Exchange of Master Owner Trust Certificates...........11
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Master Owner Trust Certificates.............................13
SECTION 3.6 Persons Deemed Master Owner Trust Certificateholders.............................................14
SECTION 3.7 Access to List of Master Owner Trust Certificateholders' Names and Addresses.....................14
SECTION 3.8 Maintenance of Master Owner Trust Trustee Corporate Trust Office.................................14
SECTION 3.9 Appointment of Paying Agent......................................................................14
SECTION 3.10 Seller as Master Owner Trust Certificateholder..................................................15
ARTICLE IV ACTIONS BY MASTER OWNER TRUST TRUSTEE.................................................................15
SECTION 4.1 Prior Notice to Master Owner Trust Certificateholders with Respect to Certain Matters............15
SECTION 4.2 Action by Master Owner Trust Certificateholders with Respect to Certain Matters..................16
SECTION 4.3 Action by Master Owner Trust Certificateholders with Respect to Bankruptcy.......................16
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SECTION 4.4 Restrictions on Master Owner Trust Certificateholders' Power.....................................16
SECTION 4.5 Majority Control.................................................................................16
SECTION 4.6 [Restriction on Master Owner Trust Trustee's Power to Issue Indebtedness.........................17
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.............................................................17
SECTION 5.1 Establishment of Master Owner Trust Certificate Distribution Account.............................17
SECTION 5.2 Application of Master Owner Trust Funds..........................................................17
SECTION 5.3 Method of Payment................................................................................18
SECTION 5.4 Accounting and Reports to the Master Owner Trust Certificateholders, the Internal Revenue
Service and Others...............................................................................18
SECTION 5.5 Signature on Returns.............................................................................19
ARTICLE VI THE MASTER OWNER TRUST TRUSTEE........................................................................19
SECTION 6.1 Duties of Master Owner Trust Trustee.............................................................19
SECTION 6.2 Authority of Master Owner Trust Trustee..........................................................20
SECTION 6.3 Acceptance of Trusts and Duties..................................................................20
SECTION 6.4 Action upon Instruction by Master Owner Trust Certificateholders.................................22
SECTION 6.5 Furnishing of Documents..........................................................................22
SECTION 6.6 Representations and Warranties of Master Owner Trust Trustee.....................................22
SECTION 6.7 Reliance; Advice of Counsel......................................................................23
SECTION 6.8 Master Owner Trust Trustee May Own Master Owner Trust Certificates and Notes.....................24
SECTION 6.9 Compensation and Indemnity.......................................................................24
SECTION 6.10 Replacement of Master Owner Trust Trustee.......................................................24
SECTION 6.11 Merger or Consolidation of Master Owner Trust Trustee...........................................26
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee...................................................26
SECTION 6.13 Eligibility Requirements for Master Owner Trust Trustee.........................................27
ARTICLE VII TERMINATION OF
MASTER OWNER TRUST AGREEMENT..........................................................28
SECTION 7.1 Termination of
Master Owner Trust Agreement......................................................28
ARTICLE VIII AMENDMENTS..........................................................................................29
SECTION 8.1 Amendments Without Consent of Master Owner Trust Certificateholders or Noteholders...............29
SECTION 8.2 Amendments With Consent of Master Owner Trust Certificateholders and Noteholders.................30
SECTION 8.3 Form of Amendments...............................................................................30
ARTICLE IX MISCELLANEOUS.........................................................................................31
SECTION 9.1 No Legal Title to Master Owner Trust Estate......................................................31
SECTION 9.2 Limitations on Rights of Others..................................................................31
SECTION 9.3 Notices..........................................................................................31
SECTION 9.4 Severability.....................................................................................31
SECTION 9.5 Counterparts.....................................................................................32
SECTION 9.6 Successors and Assigns...........................................................................32
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SECTION 9.7 No Petition Covenant.............................................................................32
SECTION 9.8 No Recourse......................................................................................32
SECTION 9.9 Headings.........................................................................................33
SECTION 9.10 GOVERNING LAW...................................................................................33
SECTION 9.11 Administrator...................................................................................33
SECTION 9.12 Amended and Restated
Master Owner Trust Agreement...............................................33
SECTION 9.13 Tax Disclosure. Each of the undersigned parties agrees to comply with Section 14.11 of the
Indenture.......................................................................................33
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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MASTER OWNER TRUST AGREEMENT, dated as of ______ _, 200_ between
Navistar Financial Securities Corporation, a
Delaware corporation, as Seller
(the "SELLER"), and Chase Manhattan Bank, USA, National Association, a national
banking association, as Master Owner Trust Trustee (the "MASTER OWNER TRUST
TRUSTEE").
WHEREAS, the Seller and Master Owner Trust Trustee entered into a
certain trust agreement dated ___ __, 200_ (the "INITIAL
MASTER OWNER TRUST
AGREEMENT"), which contemplated this
Master Owner Trust Agreement.
WHEREAS, the Seller and the Master Owner Trust Trustee desire to amend
and restate the Initial
Master Owner Trust Agreement, in its entirety.
The Seller and the Master Owner Trust Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS AND RULES OF CONSTRUCTION.
(a) DEFINITIONS. Certain capitalized terms used but not otherwise
defined in this Agreement shall have the respective meanings assigned to them in
the Indenture dated as of the date hereof between Navistar Financial Dealer Note
Master Owner Trust (the "MASTER OWNER TRUST") and The Bank of New York, as
indenture trustee (the "INDENTURE TRUSTEE"), as it may be amended and
supplemented from time to time (the "INDENTURE") or, if not defined in the
Indenture but capitalized and not defined herein, the Series Supplement. All
references herein to "THE AGREEMENT" or "THIS AGREEMENT" are to this
Master
Owner Trust Agreement as it may be amended and supplemented from time to time,
the Exhibits hereto and the capitalized terms used but not defined herein which
are defined in such Indenture, and all references herein to Articles, Sections
and subsections are to Articles, Sections and subsections of this Agreement
unless otherwise specified.
(b) RULES OF CONSTRUCTION. The following rules of construction shall
apply to this Agreement.
(i) ACCOUNTING TERMS. As used in this Agreement,
accounting terms which are not defined, and accounting terms
partly defined, herein or therein shall have the respective
meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting
terms in this Agreement are inconsistent with the meanings of
such terms under generally accepted accounting principles, the
definitions contained in herein or the Issuer Documents will
control.
(ii) "HEREOF," ETC. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this
Agreement will refer to this Agreement and not to any particular
provision of this
Agreement; and Section, Schedule and Exhibit references contained
in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified. The
word "or" is not exclusive.
(iii) USE OF "RELATED." as used in this Agreement, with
respect to any Distribution Date, the "related Determination
Date," the "related Due Period," and the "related Note Record
Date" will mean the Determination Date, the Due Period, and the
Note Record Date, respectively, immediately preceding such
Distribution Date.
(iv) USE OF "OUTSTANDING" ETC. Whenever the term
"outstanding Notes," "outstanding principal amount" and words of
similar import are used in this Agreement for purposes of
determining whether the Noteholders of the requisite outstanding
principal amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Issuer, any other obligor upon the Notes, the
Seller or any Affiliate of any of the foregoing Persons (it being
understood that the Master Owner Trust Trustee in its individual
capacity shall not be considered an Affiliate of any of the
foregoing) shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Indenture Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith
may be regarded as "outstanding" if the pledgee establishes to
the satisfaction of the Indenture Trustee the pledgor's right so
to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
(v) NUMBER AND GENDER. Each defined term used in this
Agreement has a comparable meaning when used in its plural or
singular form. Each gender-specific term used in this Agreement
has a comparable meaning whether used in a masculine, feminine or
gender-neutral form.
(vi) INCLUDING. Whenever the term "including" (whether or
not that term is followed by the phrase "but not limited to" or
"without limitation" or words of similar effect) is used in this
Agreement in connection with a listing of items within a
particular classification, that listing will be interpreted to be
illustrative only and will not be interpreted as a limitation on,
or exclusive listing of, the items within that classification.
(vii) UCC REFERENCES. References to sections or provisions
of Article 9 of the UCC in this Agreement refer to Article 9 of
the UCC as in effect as of the date hereof, but shall be deemed
to be automatically
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updated to reflect the successor, replacement or functionally
equivalent sections or provisions of any amendments or revisions
thereto.
(viii) REFERENCES TO A CLASS OF NOTES. Unless otherwise
specified, references to a class of Notes, includes all the
tranches included in such class of Notes.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The Master Owner Trust continued hereby shall be known as
"NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST" in which name the Master
Owner Trust Trustee may conduct the business of the Master Owner Trust, make and
execute contracts and other instruments on behalf of the Master Owner Trust and
the Master Owner Trust may ▇▇▇ and be sued.
SECTION 2.2 OFFICE. The office of the Master Owner Trust shall be in care
of the Master Owner Trust Trustee at the Master Owner Trust Trustee Corporate
Trust Office or at such other address in
Delaware as the Master Owner Trust
Trustee may designate by written notice to the Master Owner Trust
Certificateholder and the Seller.
SECTION 2.3 PURPOSES AND POWERS. The purpose of the Master Owner Trust is,
and the Master Owner Trust shall have the power and authority, and is
authorized, to engage in the following activities:
(a) to acquire, manage and hold the Collateral Certificate and other
certificates of beneficial interest of the Master Trust;
(b) to issue the Notes pursuant to the Indenture and the Master Owner
Trust Certificates pursuant to this Agreement, and to sell, transfer or exchange
the Notes and to transfer and exchange the Master Owner Trust Certificates;
(c) from time to time, to grant a security interest in the Collateral
Certificate, or other beneficial interests in the Master Trust, including the
pledge of any portion of the Collateral Certificate, and grant a security
interest in accounts established for the benefit of indebtedness of the Master
Owner Trust under the Indenture;
(d) from time to time, to authorize and approve the issuance of Notes
pursuant to the Indenture without limitation to aggregate amounts and, in
connection therewith, to determine the terms and provisions of such Notes and of
the issuance and sale thereof, including the following:
(i) to determine the principal amount of the Notes;
(ii) to determine the maturity date of the Notes;
(iii) to determine the rate of interest, if any, to be paid
on the Notes;
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(iv) to determine the price or prices at which such Notes
will be sold by the Master Owner Trust;
(v) to determine the provisions, if any, for the
redemption of such Notes;
(vi) to determine the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under
which the Notes may be issued and the banks or trust companies to
act as trustees, fiscal agents and paying agents thereunder;
(vii) to prepare and file all documents necessary or
appropriate in connection with the registration of the Notes
under the Securities Act, the qualification of indentures under
the Trust Indenture Act and the qualification under any other
applicable federal, foreign, state, local or other governmental
requirements;
(viii) to prepare any prospectus, offering memorandum,
private placement memorandum or other descriptive material
relating to the issuance of the Notes;
(ix) to list the Notes on any United States or non-United
States securities exchange;
(x) to enter into one or more interest rate or currency
swaps, caps, collars, guaranteed investment contracts or other
derivative agreements with counterparties (which may include,
without limitation, NFSC or any of its affiliates) to manage
interest rate or currency risk relating to the Notes;
(xi) to appoint a paying agent or agents for purposes of
payments on the Notes; and
(xii) to arrange for the underwriting, subscription,
purchase or placement of the Notes and selecting underwriters,
managers and purchasers or agents for that purpose;
(e) from time to time to receive payments and proceeds with respect to
the Collateral Certificate and other certificates of beneficial interest in the
Master Trust and the Indenture and either invest or distribute those payments
and proceeds;
(f) from time to time to make deposits to and withdrawals from
accounts established under the Indenture;
(g) from time to time to make and receive payments pursuant to
derivative agreements;
(h) from time to time to make payments on the Notes;
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(i) from time to time to acquire additional collateral from NFSC or
any special purpose vehicle established by NFSC;
(j) from time to time to perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by virtue of
the Master Owner Trust being party to any of the agreements contemplated in
letters (i) through (xii) above;
(k) subject to compliance with the Issuer Documents, to engage in such
other activities as may be required in connection with the foregoing and the
making of payments or distributions to the Securityholders; and
(l) if the Collateral Certificate is the only remaining outstanding
investor certificate issued by the Master Trust, then at the written direction
of the Master Owner Trust Beneficiary dissolve the Master Trust and terminate
the Pooling and Servicing Agreement, acquire the Dealer Notes directly and enter
into a sale and servicing agreement that contains, to the extent applicable, the
sale and servicing provisions of the Pooling and Servicing Agreement and other
documents and amend any documents to reflect the direct ownership of the Dealer
Notes;
PROVIDED, HOWEVER, that the Master Owner Trust may enter into derivatives only
if such derivatives are passive and entered into concurrently with the issuance
of a series of Notes or to replace a terminated derivative.
The Master Owner Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the Issuer Documents.
SECTION 2.4 APPOINTMENT OF MASTER OWNER TRUST TRUSTEE. The Seller hereby
appoints Chase Manhattan Bank USA, National Association as trustee of the Master
Owner Trust, effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF MASTER OWNER TRUST ESTATE. The
Seller sold, assigned and transferred to the Master Owner Trust, and conveyed
and set over to the Master Owner Trust Trustee, on behalf of the Master Owner
Trust, as of ___ __, 200_, the sum of $1. The Master Owner Trust Trustee hereby
acknowledges receipt in trust from the Seller, as of ___ __, 200_, of the
foregoing contribution, which shall constitute the "INITIAL MASTER OWNER TRUST
ESTATE" and shall be deposited in the Master Owner Trust Certificate
Distribution Account. The Seller shall pay organizational expenses of the Master
Owner Trust as they may arise or shall, upon the request of the Master Owner
Trust Trustee, promptly reimburse the Master Owner Trust Trustee for any such
expenses paid by the Master Owner Trust Trustee.
SECTION 2.6 DECLARATION OF TRUST.
The Master Owner Trust Trustee hereby declares that it will hold the
Initial Master Owner Trust Estate, the Collateral Certificate and the other
documents and assets described in SECTION 2.3, together with any payments,
proceeds or income of any kind from such documents or assets or any other source
and any other property held under this Agreement (collectively, the
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"MASTER OWNER TRUST ESTATE"), upon the trust set forth herein and for the sole
use and benefit of the Beneficiary. The Master Owner Trust Trustee hereby
declares that it shall hold the Master Owner Trust Estate in trust upon and
subject to the conditions and obligations set forth herein, subject to the
obligations of the Master Owner Trust under the Issuer Documents. It is the
intention of the parties hereto that the Master Owner Trust constitute a
statutory trust under the Statutory Trust Statute, that this Agreement
constitute the governing instrument of such statutory trust and that the Master
Owner Trust Certificates represent the beneficial interests therein. The rights
of the Master Owner Trust Certificateholders shall be determined as set forth
herein and in the Statutory Trust Statute and the relationship between the
parties hereto created by this Agreement shall not constitute indebtedness for
any purpose. It is the intention of the parties hereto that, solely for purposes
of federal income taxes, state and local income and franchise taxes, and any
other taxes imposed upon, measured by, or based upon gross or net income, the
Master Owner Trust shall be treated as a division or branch of the Seller. The
parties agree that, unless otherwise required by appropriate tax authorities,
the Master Owner Trust shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Master Owner Trust as a division or branch of the Seller for such tax purposes;
PROVIDED, HOWEVER, that until the Seller receives a ruling from the Illinois
Department of Revenue or an opinion of counsel reasonably acceptable to the
Master Owner Trust Trustee that the Master Owner Trust will be treated as a
branch or division of the Seller for purposes of the Illinois Income Tax Act and
the Illinois Personal Property Tax Replacement Tax Act, for purposes of the
Illinois Income Tax Act and the Illinois Personal Property Tax Replacement Tax
Act, the Seller will (i) include the taxable income of the Master Owner Trust in
the combined tax return filed by the combined group that includes the Seller,
(ii) take all steps necessary to treat the Master Owner Trust as a member of the
same combined group of which the Seller is a member and (iii) provide
information to the Master Owner Trust Trustee to confirm that the actions
required by clauses (i) and (ii) have been effected. Effective as of the date
hereof, the Master Owner Trust Trustee shall have all rights, powers and duties
set forth in this Agreement, the Indenture and the Statutory Trust Statute with
respect to accomplishing the purposes of the Master Owner Trust subject to the
terms and conditions of the Issuer Documents.
SECTION 2.7 LIABILITY OF THE MASTER OWNER TRUST CERTIFICATEHOLDERS. The
Master Owner Trust Certificateholders shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation law of the State of
Delaware.
SECTION 2.8 TITLE TO MASTER OWNER TRUST PROPERTY. Legal title to all the
Master Owner Trust Estate shall be vested at all times in the Master Owner Trust
as a separate legal entity, except where applicable law in any jurisdiction
requires title to any part of the Master Owner Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Master Owner Trust Trustee, a co-trustee and/or other trustees, as the case may
be.
SECTION 2.9 SITUS OF MASTER OWNER TRUST. The Master Owner Trust shall be
located and administered in the State of
Delaware. All bank accounts maintained
by the Master Owner Trust or the Master Owner Trust Trustee on behalf of the
Master Owner Trust or for the benefit of the Master Owner Trust
Certificateholders shall be located in the State of
Delaware or the State of New
York. The Master Owner Trust shall not have any employees in any state other
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than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Master Owner Trust Trustee from having employees within or without the State
of
Delaware. Payments shall be received by the Master Owner Trust only in
Delaware or New York, and payments and distributions shall be made by the Master
Owner Trust only from
Delaware or New York. The only office of the Master Owner
Trust shall be the Master Owner Trust Trustee Corporate Trust Office in
Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby represents and warrants to the Master Owner Trust Trustee (as such or in
its individual capacity) that:
(a) The Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted and had
at all relevant times, and now has, power, authority and legal right to acquire
and own the Collateral Certificate and or the Dealer Notes.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to and deposited with the
Master Owner Trust, and the Seller has duly authorized such sale and assignment
to the Master Owner Trust by all necessary corporate action, and the execution,
delivery and performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Issuer Documents), or violate any law or, to the Seller's
knowledge, any order, rule or regulation applicable to the Seller of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall constitute
a legal, valid and binding obligation of the Seller enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or investigations pending or, to the
Seller's knowledge, threatened against the Seller before any court, regulatory
body, administrative
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agency or other tribunal or governmental instrumentality having jurisdiction
over the Seller or its properties (i) asserting the invalidity of this Agreement
or any Master Owner Trust Certificate issued pursuant hereto or any other Issuer
Document or, (ii) seeking to prevent the issuance of such Master Owner Trust
Certificates or the consummation of any of the transactions contemplated by this
Agreement or any other Issuer Document or (iii) seeking any determination or
ruling that might materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, such Master
Owner Trust Certificate, this Agreement or any other Issuer Document.
SECTION 2.11 TRANSFER OF COLLATERAL CERTIFICATE.
(a) In consideration of the Master Owner Trust's delivery to or upon
the order of the Seller of the net proceeds of the initial sale of the Notes,
the Seller does hereby absolutely transfer, assign, set over and otherwise
convey to the Master Owner Trust, without recourse (subject to the obligations
herein) all right, title and interest of the Seller in and to the Collateral
Certificate and the proceeds thereof. This Agreement also shall be deemed to be
and hereby is a security agreement within the meaning of the UCC, and the
conveyance by the Seller provided for in this Agreement shall be deemed to be
and hereby is a grant by the Seller to the Master Owner Trust of a security
interest in and to all of the Seller's right, title and interest, whether now
owned or hereafter acquired, in, to and under all accounts, general intangibles,
chattel paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment property
consisting of, arising from, or relating to the Collateral Certificate and the
proceeds thereof, to secure the rights of the Master Owner Trust under this
Agreement and the obligations of the Seller hereunder. The Seller and the Master
Owner Trust shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that the security interest in the
Collateral Certificate created hereunder will be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
(b) To the extent that the Seller retains any interest in the
Collateral Certificate, the Seller hereby grants to the Indenture Trustee for
the benefit of the holders of the Notes a security interest in and to all of the
Seller's right, title, and interest, whether now owned or hereafter acquired,
in, to, and under all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit, and investment property consisting of, arising from,
or relating to the Collateral Certificate and the proceeds thereof
(collectively, the "INDENTURE COLLATERAL"), to secure performance of all of the
obligations of the Seller under the Pooling and Servicing Agreement, the Series
Supplement and the Issuer Documents. With respect to the Indenture Collateral,
the Indenture Trustee shall have all of the rights it has under the Issuer
Documents. The Indenture Trustee shall have all of the rights of a secured
creditor under the UCC in New York and the UCC in Delaware.
SECTION 2.12 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller makes
the following representations and warranties as to the Collateral Certificate on
which the Issuer is deemed to have relied in acquiring the Collateral
Certificate. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of each Transfer Date, but shall
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survive the transfer and assignment of the Collateral Certificate to the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute either (i) a sale of the Collateral
Certificate, (ii) a grant of a perfected security interest therein from the
Seller to the Issuer or (iii) a grant of a perfected security interest therein
from the Seller to the Indenture Trustee. The Collateral Certificate has not
been sold, transferred, assigned or pledged by the Seller to any Person other
than pursuant to this Agreement or the Indenture. Immediately prior to the
transfer and assignment herein contemplated, the Seller had good and marketable
title to the Collateral Certificate, free and clear of all liens and rights of
others and, immediately upon the transfer thereof, the Issuer shall have good
and marketable title to the Collateral Certificate, free and clear of all liens
of rights of others or a first priority perfected security interest therein; and
the transfer has been perfected, by the filing of appropriate financing
statements and the taking of such other action pursuant to the UCC, under the
UCC. The Seller has no knowledge of any current statutory or other
non-consentual liens to which the Collateral Certificate is subject.
(b) All Actions Taken. All actions necessary under the applicable UCC
in any jurisdiction to be taken (i) to give the Issuer a first priority
perfected security interest or ownership interest in the Collateral Certificate,
and (ii) to give the Indenture Trustee a first priority perfected security
interest in the Collateral Certificate (including, without limitation, UCC
filings with the Delaware Secretary of State), in each case subject to any
statutory or other non-consentual liens with respect to the Collateral
Certificate, have been taken. The Seller has no knowledge of any current
statutory or other non-consentual liens to which the Collateral Certificate is
subject.
(c) No Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Seller of this Agreement or
any other Issuer Document, the performance by the Seller of the transactions
contemplated by this Agreement or any other Issuer Document and the fulfillment
by the Seller of the terms hereof or thereof, have been obtained or have been
completed and are in full force and effect (other than approvals,
authorizations, consents, orders and other actions which if not obtained or
completed or in full force or effect would not have a material adverse effect on
the Seller or the Issuer or upon the collectibility of the Collateral
Certificate or upon the ability of the Seller to perform its obligations under
this Agreement).
(d) Transfers Comply. Each of (i) the transfer of the Collateral
Certificate by the Seller to the Issuer pursuant to the terms of this Agreement,
(ii) the pledge of the Collateral Certificate by the Issuer to the Indenture
Trustee pursuant to the terms of the Indenture and (iii) the pledge of the
Collateral Certificate by the Seller to the Indenture Trustee pursuant to the
terms of this Agreement, comply with the provisions of the Pooling and Servicing
Agreement relating to transfers of the Collateral Certificate.
SECTION 2.13 PROTECTION OF TITLE TO COLLATERAL CERTIFICATE.
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(a) The Seller shall take all actions necessary, and the Issuer shall
cooperate with the Seller, if applicable, to perfect, and maintain perfection
of, the interests of the Issuer in the Collateral Certificate. The Seller shall
execute and file and cause to be executed and filed such financing statements
and continuation statements, all in such manner and in such places as may be
required by law fully to perfect, maintain, and protect the interest of the
Issuer in the Collateral Certificate and in the proceeds thereof and the
interest of the Indenture Trustee in the Indenture Collateral and the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Master Owner
Trust Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Seller shall not change its name, identity or corporate
structure or the jurisdiction of its organization in any manner that might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above or otherwise seriously misleading within the meaning of the
UCC (regardless of whether such a filing was ever made), unless it shall have
given the Master Owner Trust Trustee and the Indenture Trustee at least five
days' prior written notice thereof and, if applicable, shall have timely filed
appropriate amendments to any and all previously filed financing statements or
continuation statements or timely filed additional UCC financing statements in
each case (so that the interests of the Issuer and the Indenture Trustee is not
adversely affected).
(c) The Seller shall have an obligation to give the Master Owner Trust
Trustee and the Indenture Trustee at least 30 days' prior written notice of any
change in the jurisdiction of its organization or any relocation of its chief
executive office or other change in location if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement (regardless of whether such a filing was ever made) and
shall promptly, if applicable, file any such amendment or new financing
statement.
(d) The Master Owner Trust Trustee shall permit the Indenture Trustee
and its agents at any time following reasonable notice and during normal
business hours to inspect, audit and make copies of and abstracts from the
Master Owner Trust Trustee's records regarding the Collateral Certificate.
SECTION 2.14 ASSIGNMENT TO INDENTURE TRUSTEE. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Collateral Certificate and the other property
constituting the Master Owner Trust Estate and/or the assignment of any or all
of the Issuer's rights and obligations hereunder to the Indenture Trustee.
ARTICLE III
THE MASTER OWNER TRUST CERTIFICATES
SECTION 3.1 INITIAL MASTER OWNER TRUST CERTIFICATE OWNERSHIP. Upon the
formation of the Master Owner Trust by the contribution by the Seller pursuant
to SECTION 2.5 and until the issuance of the Master Owner Trust Certificates,
the Seller shall be the sole beneficiary of the Master Owner Trust (the "MASTER
OWNER TRUST BENEFICIARY").
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SECTION 3.2 FORM OF THE MASTER OWNER TRUST CERTIFICATES.
(a) The Master Owner Trust Certificates shall be substantially in the
form set forth in EXHIBIT A. The Master Owner Trust Certificates shall be
executed on behalf of the Master Owner Trust by manual or facsimile signature of
a Master Owner Trust Trustee Authorized Officer. Master Owner Trust Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Master Owner Trust, shall be, when authenticated pursuant to SECTION 3.3,
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Master Owner Trust Certificates or
did not hold such offices at the date of authentication and delivery of such
Master Owner Trust Certificates.
(b) The Master Owner Trust Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the officers executing
such Master Owner Trust Certificates, as evidenced by their execution of such
Master Owner Trust Certificates.
(c) The Master Owner Trust Certificates shall be issued in
fully-registered form and shall be in definitive form only. The terms of the
Master Owner Trust Certificates set forth in EXHIBIT A shall form part of this
Agreement.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. Concurrently with the
transfer of the Collateral Certificate to the Master Owner Trust hereby, the
Master Owner Trust Trustee shall cause the Master Owner Trust Certificates to be
executed on behalf of the Master Owner Trust, and to be authenticated and
delivered to or upon the written order of the Seller, signed by its chairman of
the board, its president or any vice president, without further corporate action
by the Seller, in authorized denominations. No Master Owner Trust Certificate
shall entitle its holder to any benefit under this Agreement, or shall be valid
for any purpose, unless there shall appear on such Master Owner Trust
Certificate a certificate of authentication substantially in the form set forth
in EXHIBIT A, executed by the Master Owner Trust Trustee or by the Person
appointed from time to time as the Master Owner Trust Trustee's authenticating
agent hereunder (the "AUTHENTICATING AGENT") by manual signature. The Master
Owner Trust Trustee hereby appoints JPMorgan Chase Bank as the initial
Authenticating Agent. Such authentication shall constitute conclusive evidence
that such Master Owner Trust Certificate shall have been duly authenticated and
delivered hereunder. All Master Owner Trust Certificates shall be dated the date
of their authentication.
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF MASTER
OWNER TRUST CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to SECTION 3.8, a register (the
"CERTIFICATE REGISTER") in which, subject to such reasonable regulations as it
may prescribe, the Master Owner Trust Trustee shall provide for the registration
of Master Owner Trust Certificates and of transfers and exchanges of Master
Owner Trust Certificates as provided herein. The Certificate Registrar shall be
appointed by and may be removed by the Master Owner Trust Trustee. The Master
Owner Trust Trustee hereby
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appoints JPMorgan Chase Bank as the initial Certificate Registrar. Upon any
resignation of a Certificate Registrar, the Master Owner Trust Trustee shall
promptly appoint a successor or, if it elects not to make such an appointment,
assume the duties of the Certificate Registrar.
(b) The initial Master Owner Trust Certificateholders may at any time,
without consent of the Noteholders, sell, transfer, convey or assign in any
manner its rights to and interests in the Master Owner Trust Certificates,
provided that: (i) such action will not result in a reduction or withdrawal of
the rating of any class of Notes, (ii) the Master Owner Trust Certificateholders
provide to the Master Owner Trust Trustee and the Indenture Trustee an opinion
of independent counsel that such action will not cause the Master Owner Trust to
be treated as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes, (iii) such transferee or assignee
agrees to take positions for tax purposes consistent with the tax positions
agreed to be taken by the Master Owner Trust Certificateholders and (iv) the
conditions set forth in SECTION 3.4(g) have been satisfied. In addition, no
transfer of a Master Owner Trust Certificate shall be registered unless the
transferee shall have provided to the Master Owner Trust Trustee and the
Certificate Registrar an opinion of counsel that in connection with such
transfer no registration of the Master Owner Trust Certificates is required
under the Securities Act or applicable state law or that such transfer is
otherwise being made in accordance with all applicable federal and state
securities laws.
(c) Subject to SECTION 3.4(b), upon surrender for registration of
transfer of any Master Owner Trust Certificate at the office or agency
maintained pursuant to SECTION 3.8, the Master Owner Trust Trustee shall execute
on behalf of the Master Owner Trust, authenticate and deliver (or shall cause
its Authenticating Agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Master Owner Trust
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Master Owner Trust Trustee or any authenticating
agent.
(d) At the option of a Master Owner Trust Certificateholder, Master
Owner Trust Certificates may be exchanged for other Master Owner Trust
Certificates of a like aggregate percentage interest upon surrender of the
Master Owner Trust Certificates to be exchanged at the Master Owner Trust
Trustee Corporate Trust Office or the office or agency maintained pursuant to
SECTION 3.8. Whenever any Master Owner Trust Certificates are so surrendered for
exchange, the Master Owner Trust Trustee shall execute on behalf of the Master
Owner Trust, authenticate and deliver (or shall cause its Authenticating Agent
to authenticate and deliver) one or more Master Owner Trust Certificates dated
the date of authentication by the Master Owner Trust Trustee or any
Authenticating Agent. Such Master Owner Trust Certificates shall be delivered to
the Master Owner Trust Certificateholder making the exchange.
(e) Every Master Owner Trust Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Master Owner Trust Trustee
and the Certificate Registrar duly executed by the Master Owner Trust
Certificateholder or his attorney duly authorized in writing. Each Master Owner
Trust Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed or otherwise disposed of by the Master Owner
Trust Trustee or Certificate Registrar in accordance with its customary
practice.
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(f) No service charge shall be made for any registration of transfer
or exchange of Master Owner Trust Certificates, but the Master Owner Trust
Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Master Owner Trust Certificates.
(g) The Master Owner Trust Certificates may not be acquired by or for
the account of (i) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Internal Revenue Code or (iii) any entity
whose underlying assets include plan assets of any such plan (each, a "BENEFIT
PLAN"). By accepting and holding a Master Owner Trust Certificate, the Master
Owner Trust Certificateholder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN MASTER OWNER TRUST
CERTIFICATES.
(a) If (i) any mutilated Master Owner Trust Certificate is surrendered
to the Certificate Registrar, or the Certificate Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Master Owner Trust
Certificate, and (ii) there is delivered to the Certificate Registrar, the
Master Owner Trust Trustee and the Master Owner Trust, such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar, the Master Owner Trust Trustee
or the Master Owner Trust that such Master Owner Trust Certificate has been
acquired by a protected purchaser, the Master Owner Trust Trustee shall execute
on behalf of the Master Owner Trust and the Master Owner Trust Trustee shall
authenticate and deliver (or shall cause its Authenticating Agent to
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Master Owner Trust Certificate, a replacement Master
Owner Trust Certificate in authorized denominations of a like amount; PROVIDED,
HOWEVER, that if any such destroyed, lost or stolen Master Owner Trust
Certificate, but not a mutilated Master Owner Trust Certificate, shall have
become or within seven days shall be due and payable, then instead of issuing a
replacement Master Owner Trust Certificate the Master Owner Trust Trustee on
behalf of the Master Owner Trust may pay such destroyed, lost or stolen Master
Owner Trust Certificate when so due or payable.
(b) If, after the delivery of a replacement Master Owner Trust
Certificate or distribution in respect of a destroyed, lost or stolen Master
Owner Trust Certificate pursuant to SUBSECTION 3.5(a), a protected purchaser of
the original Master Owner Trust Certificate in lieu of which such replacement
Master Owner Trust Certificate was issued presents for payment such original
Master Owner Trust Certificate, the Master Owner Trust Trustee on behalf of the
Master Owner Trust shall be entitled to recover such replacement Master Owner
Trust Certificate (or such distribution) from the Person to whom it was
delivered or any Person taking such replacement Master Owner Trust Certificate
from such Person to whom such replacement Master Owner Trust Certificate was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Master Owner
Trust or the Master Owner Trust Trustee in connection therewith.
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(c) In connection with the issuance of any replacement Master Owner
Trust Certificate under this SECTION 3.5, the Master Owner Trust Trustee on
behalf of the Master Owner Trust may require the payment by the Master Owner
Trust Certificateholder of such Master Owner Trust Certificate of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Master Owner Trust, the Master Owner Trust Trustee and the
Certificate Registrar) connected therewith.
(d) Any duplicate Master Owner Trust Certificate issued pursuant to
this SECTION 3.5 in replacement of any mutilated, destroyed, lost or stolen
Master Owner Trust Certificate shall constitute an original additional
contractual obligation of the Master Owner Trust, whether or not the mutilated,
destroyed, lost or stolen Master Owner Trust Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Master Owner Trust
Certificates duly issued hereunder.
(e) The provisions of this SECTION 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Master Owner
Trust Certificates.
SECTION 3.6 PERSONS DEEMED MASTER OWNER TRUST CERTIFICATEHOLDERS. Prior to
due presentation of a Master Owner Trust Certificate for registration of
transfer, the Master Owner Trust Trustee or the Certificate Registrar may treat
the Person in whose name any Master Owner Trust Certificate shall be registered
in the Certificate Register as the Master Owner Trust Certificateholder of such
Master Owner Trust Certificate for the purpose of receiving distributions
pursuant to ARTICLE V and for all other purposes whatsoever, and neither the
Master Owner Trust Trustee nor the Certificate Registrar shall be bound by any
notice to the contrary.
SECTION 3.7 ACCESS TO LIST OF MASTER OWNER TRUST CERTIFICATEHOLDERS' NAMES
AND ADDRESSES. The Master Owner Trust Trustee shall furnish or cause to be
furnished to the Servicer and the Seller, within 15 days after receipt by the
Master Owner Trust Trustee of a request therefor from the Servicer or the Seller
in writing, a list, in such form as the Servicer or the Seller may reasonably
require, of the names and addresses of the Master Owner Trust Certificateholders
as of the most recent Note Record Date. Each Master Owner Trust
Certificateholder, by receiving and holding a Master Owner Trust Certificate,
shall be deemed to have agreed not to hold any of the Servicer, the Seller, the
Master Owner Trust or the Master Owner Trust Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 MAINTENANCE OF MASTER OWNER TRUST TRUSTEE CORPORATE TRUST
OFFICE. The Master Owner Trust Trustee shall maintain in the Borough of
Manhattan, the City of New York, an office or offices or agency or agencies
where Master Owner Trust Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Master Owner
Trust in respect of the Master Owner Trust Certificates and the Issuer Documents
may be served. The Master Owner Trust Trustee initially designates the offices
of JPMorgan Chase Bank at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its
principal office for such purposes. The Master Owner Trust Trustee shall give
prompt written notice to the
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Seller and to the Master Owner Trust Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Master Owner Trust Certificateholders from the Master Owner
Trust Certificate Distribution Account (as defined in SECTION 5.1(a) hereto)
pursuant to SECTION 5.2 and shall report the amounts of such distributions to
the Master Owner Trust Trustee. Any Paying Agent shall have the revocable power
to withdraw funds from the Master Owner Trust Certificate Distribution Account
for the purpose of making the distributions referred to above. The Master Owner
Trust Trustee may appoint and may revoke such power and remove the Paying Agent
if the Master Owner Trust Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Master Owner Trust Trustee hereby appoints JPMorgan
Chase Bank as the initial Paying Agent and appoints as co-paying agent any
co-paying agent chosen by the Paying Agent and acceptable to the Master Owner
Trust Trustee. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Master Owner Trust Trustee. If the Paying
Agent shall resign or be removed, the Master Owner Trust Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Master Owner Trust Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Master Owner Trust Trustee to execute
and deliver to the Master Owner Trust Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Master
Owner Trust Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent shall hold all sums, if any, held by it for distribution
to the Master Owner Trust Certificateholders in trust for the benefit of the
Master Owner Trust Certificateholders entitled thereto until such sums shall be
paid to such Master Owner Trust Certificateholders. The Paying Agent shall
return all unclaimed funds to the Master Owner Trust and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Master Owner Trust. The provisions of SECTIONS 6.3, 6.6, 6.7, 6.8 and 6.9
shall apply, MUTATIS MUTANDIS, to the Master Owner Trust Trustee also in its
role as Paying Agent, for so long as the Master Owner Trust Trustee shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
SECTION 3.10 SELLER AS MASTER OWNER TRUST CERTIFICATEHOLDER. The Seller in
its individual or any other capacity may become the owner or pledgee of Master
Owner Trust Certificates and may otherwise deal with the Master Owner Trust
Trustee or its Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY MASTER OWNER TRUST TRUSTEE
SECTION 4.1 PRIOR NOTICE TO MASTER OWNER TRUST CERTIFICATEHOLDERS WITH
RESPECT TO CERTAIN MATTERS. The Master Owner Trust Trustee shall not take action
with respect to the following matters, unless (i) the Master Owner Trust Trustee
shall have notified the Master Owner Trust Certificateholders in writing of the
proposed action at least 30 days before the taking of such action and (ii) the
Master Owner Trust Certificateholders shall not have notified the Master Owner
Trust Trustee in writing prior to the 30th day after such notice is given that
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such Master Owner Trust Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Master Owner Trust
(other than an action to collect on the Collateral Certificate or a Dealer Note
or an action by the Indenture Trustee pursuant to the Indenture) and the
compromise of any action, claim or lawsuit brought by or against the Master
Owner Trust (other than an action to collect on the Collateral Certificate or a
Dealer Note or an action by the Indenture Trustee pursuant to the Indenture);
(b) the amendment of the Indenture by an Indenture Supplement in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by an Indenture Supplement in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Master Owner Trust
Certificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Master Owner Trust Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable;
(f) the amendment of the Pooling and Servicing Agreement in
circumstances where the consent of any Noteholder is required; or
(g) the election by the Master Owner Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as EXHIBIT B,
except as permitted or required by the terms of any Issuer Document.
SECTION 4.2 ACTION BY MASTER OWNER TRUST CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. The Master Owner Trust Trustee shall not have the power, except
upon the written direction of the Master Owner Trust Certificateholders, to (a)
remove the Administrator under the Administration Agreement pursuant to SECTION
8 thereof, (b) appoint a successor Administrator pursuant to SECTION 8 of the
Administration Agreement, (c) remove the Servicer or appoint a successor
Servicer under the Pooling and Servicing Agreement pursuant to ARTICLE X thereof
or (d) except as expressly provided in the Issuer Documents, sell the Collateral
Certificate or any interest therein after the termination of the Indenture. The
Master Owner Trust Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Master Owner Trust
Certificateholders.
SECTION 4.3 ACTION BY MASTER OWNER TRUST CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY. Neither the Master Owner Trust nor the Master Owner Trust Trustee
shall have the power to commence a voluntary proceeding in bankruptcy relating
to the Master Owner Trust
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without the unanimous prior approval of all holders of Master Owner Trust
Certificates (including the unanimous approval of the board of directors of the
Seller) unless the Master Owner Trust Trustee reasonably believes that the
Master Owner Trust is insolvent.
SECTION 4.4 RESTRICTIONS ON MASTER OWNER TRUST CERTIFICATEHOLDERS' POWER.
The Master Owner Trust Certificateholders shall not direct the Master Owner
Trust Trustee to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Master Owner Trust or the
Master Owner Trust Trustee under this Agreement or any of the Issuer Documents
or would be contrary to SECTION 2.3, nor shall the Master Owner Trust Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the Master
Owner Trust Certificateholders under this Agreement shall be effective if such
action is taken or such consent is given or withheld by the holders of a
majority of the ownership interest in the Master Owner Trust outstanding as of
the close of the preceding Distribution Date. Except as expressly provided
herein, any written notice, instruction, direction or other document of the
Master Owner Trust Certificateholders delivered pursuant to this Agreement shall
be effective if signed by holders of Master Owner Trust Certificates evidencing
not less than a majority of the ownership interest in the Master Owner Trust at
the time of the delivery of such notice.
SECTION 4.6 RESTRICTION ON MASTER OWNER TRUST TRUSTEE'S POWER TO ISSUE
INDEBTEDNESS.
The Master Owner Trust Trustee shall have no power to create, assume or
incur indebtedness or other liabilities in the name of the Trust other than as
contemplated by the Issuer Documents.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF MASTER OWNER TRUST CERTIFICATE DISTRIBUTION
ACCOUNT.
(a) The Seller shall cause the Servicer, for the benefit of the Master
Owner Trust Certificateholders, to establish and maintain at JPMorgan Chase Bank
at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the name of the Master Owner
Trust an Eligible Deposit Account known as the Navistar Financial Dealer Note
Master Owner Trust Certificate Distribution Account (the "MASTER OWNER TRUST
CERTIFICATE DISTRIBUTION ACCOUNT"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Master Owner Trust Certificateholders.
(b) The Master Owner Trust, for the benefit of the Master Owner Trust
Certificateholders, shall possess all right, title and interest in and to all
funds on deposit from time to time in the Master Owner Trust Certificate
Distribution Account and in all proceeds thereof. Except as otherwise provided
herein or in the Indenture or any Indenture Supplement, the Master Owner Trust
Certificate Distribution Account shall be under the sole dominion and control of
the Master Owner Trust Trustee for the benefit of the Master Owner Trust
Certificateholders. If, at any time, the Master Owner Trust Certificate
Distribution Account
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ceases to be an Eligible Deposit Account, the Seller shall cause the Servicer
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Note Rating Agency may consent) to establish a new Master Owner
Trust Certificate Distribution Account as an Eligible Deposit Account and shall
cause the Master Owner Trust Trustee to transfer any cash and/or any investments
in the old Master Owner Trust Certificate Distribution Account to such new
Master Owner Trust Certificate Distribution Account.
SECTION 5.2 APPLICATION OF MASTER OWNER TRUST FUNDS.
(a) On each Distribution Date, the Master Owner Trust Trustee shall
(based on the information contained in the Servicer's Certificate delivered on
the related Determination Date) distribute to the Master Owner Trust
Certificateholders, on a pro rata basis, amounts on deposit in the Master Owner
Trust Certificate Distribution Account.
(b) On each Distribution Date, the Master Owner Trust Trustee shall
send (or shall cause to be sent) to each Master Owner Trust Certificateholder
the statement described in SECTION 5.01 of the Series Supplement.
(c) If any withholding tax is imposed on distributions of the Master
Owner Trust Estate (or allocations of income) to a Master Owner Trust
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Master Owner Trust Certificateholder in accordance with this SECTION 5.2.
The Master Owner Trust Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Master Owner Trust Certificateholders
sufficient funds for the payment of any withholding tax that is legally owed by
the Master Owner Trust in respect of any distribution (but such authorization
shall not prevent the Master Owner Trust Trustee from contesting any such tax in
appropriate proceedings and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Master Owner Trust Certificateholder shall be treated
as cash distributed to such Master Owner Trust Certificateholder at the time it
is withheld by the Master Owner Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S. Master Owner
Trust Certificateholder), the Master Owner Trust Trustee may in its sole
discretion withhold such amounts in accordance with this SUBSECTION 5.2(c). If a
Master Owner Trust Certificateholder wishes to apply for a refund of any such
withholding tax, the Master Owner Trust Trustee shall reasonably cooperate with
such Master Owner Trust Certificateholder in making such claim so long as such
Master Owner Trust Certificateholder agrees to reimburse the Master Owner Trust
and the Master Owner Trust Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the
Master Owner Trust pursuant to SECTION 11.03 of the Indenture, the Master Owner
Trust Trustee shall, upon notice from the Indenture Trustee that such funds
exist, submit on behalf of the Master Owner Trust an Issuer Certificate to the
Indenture Trustee pursuant to SECTION 11.03 of the Indenture instructing the
Indenture Trustee to pay such funds pro rata to or at the order of the Master
Owner Trust Certificateholders.
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SECTION 5.3 METHOD OF PAYMENT. Subject to SECTION 7.1(c), distributions
required to be made to Master Owner Trust Certificateholders on any Distribution
Date shall be made to each Master Owner Trust Certificateholder of record on the
related Note Record Date (i) by wire transfer, in immediately available funds,
to the account of such Master Owner Trust Certificateholder at a bank or other
entity having appropriate facilities therefor or, where possible, by intra-bank
book entry credit, if such Master Owner Trust Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
two Business Days prior to such Note Record Date.
SECTION 5.4 ACCOUNTING AND REPORTS TO THE MASTER OWNER TRUST
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Master Owner
Trust shall maintain (or cause to be maintained) the books of the Master Owner
Trust on the basis of a fiscal year ending October 31 on the accrual method of
accounting, deliver to each Master Owner Trust Certificateholder, as may be
required by the Internal Revenue Code and applicable Treasury Regulations or
otherwise, such information as may be required to enable each Master Owner Trust
Certificateholder to prepare its federal income tax returns, file such tax
returns relating to the Master Owner Trust and make such elections as may from
time to time be required or appropriate under any applicable state or federal
statute or rule or regulation thereunder so as to maintain the Master Owner
Trust's characterization as a division or branch of the Seller for federal
income tax purposes, cause such tax returns to be signed in the manner required
by law and collect or cause to be collected any withholding tax as described in
and in accordance with SUBSECTION 5.2(c) with respect to income or distributions
to Master Owner Trust Certificateholders.
SECTION 5.5 SIGNATURE ON RETURNS. The Master Owner Trust Trustee shall sign
on behalf of the Master Owner Trust any and all tax returns of the Master Owner
Trust, unless applicable law requires a Master Owner Trust Certificateholder to
sign such documents, in which case such documents shall be signed by the Seller.
ARTICLE VI
THE MASTER OWNER TRUST TRUSTEE
SECTION 6.1 DUTIES OF MASTER OWNER TRUST TRUSTEE.
(a) The Master Owner Trust Trustee undertakes to perform such duties,
and only such duties, as are specifically set forth in this Agreement, the
Indenture and the other Issuer Documents, including the administration of the
Master Owner Trust in the interest of the Master Owner Trust Certificateholders,
subject to the Issuer Documents and in accordance with the provisions of this
Agreement and the Indenture. No implied covenants or obligations shall be read
into this Agreement, the Indenture or any other Issuer Document against the
Master Owner Trust Trustee.
(b) Notwithstanding the foregoing, the Master Owner Trust Trustee
shall be deemed to have discharged its duties and responsibilities hereunder and
under the other Issuer Documents to the extent the Administrator has agreed in
the Administration Agreement to perform any act or to discharge any duty of the
Master Owner Trust Trustee hereunder or under any other Issuer Document, and the
Master Owner Trust Trustee shall not be liable for the
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default or failure of the Administrator to carry out its obligations under the
Administration Agreement.
(c) In the absence of bad faith on its part, the Master Owner Trust
Trustee may conclusively rely upon certificates or opinions furnished to the
Master Owner Trust Trustee and conforming to the requirements of this Agreement
in determining the truth of the statements and the correctness of the opinions
contained therein; PROVIDED, HOWEVER, that the Master Owner Trust Trustee shall
have examined such certificates or opinions so as to determine compliance of the
same with the requirements of this Agreement.
(d) The Master Owner Trust Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this SUBSECTION 6.1(d) shall not limit the effect of
SUBSECTION 6.1(a) OR (b);
(ii) the Master Owner Trust Trustee shall not be liable
for any error of judgment made in good faith by a Master Owner
Trust Trustee Authorized Officer unless it is proved that the
Master Owner Trust Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Master Owner Trust Trustee shall not be liable
with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to
SECTION 4.1, 4.2 or 6.4.
(e) Subject to SECTIONS 5.1 AND 5.2, monies received by the Master
Owner Trust Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Indenture and may be deposited under such general
conditions as may be prescribed by law, and the Master Owner Trust Trustee shall
not be liable for any interest thereon.
(f) The Master Owner Trust Trustee shall not take any action that (i)
is inconsistent with the purposes of the Master Owner Trust set forth in SECTION
2.3 or (ii) would, to the actual knowledge of a Master Owner Trust Trustee
Authorized Officer, result in the Master Owner Trust becoming taxable as a
corporation for federal income tax purposes.
(g) The Master Owner Trust Certificateholders shall not direct the
Master Owner Trust Trustee to take action that would violate the provisions of
this SECTION 6.1.
SECTION 6.2 AUTHORITY OF MASTER OWNER TRUST TRUSTEE. The Master Owner Trust
Trustee is authorized and directed to execute and deliver the Issuer Documents
and each certificate or other document attached as an exhibit to or contemplated
by the Issuer Documents to which the Master Owner Trust is to be a party in such
form as the Seller shall approve as evidenced conclusively by the Master Owner
Trust Trustee's execution thereof. In addition to the foregoing, the Master
Owner Trust Trustee is authorized, but shall not be obligated, to take all
actions required of the Master Owner Trust pursuant to the Issuer Documents. The
Master Owner Trust Trustee is further authorized from time to time to take such
action as the Administrator recommends with respect to the Issuer Documents.
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SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES. Except as otherwise provided
in this ARTICLE VI, in accepting the trusts hereby created, the Person executing
this Agreement as Master Owner Trust Trustee acts solely as Master Owner Trust
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the Master Owner Trust Trustee by reason of the transactions
contemplated by this Agreement or any Issuer Document shall look only to the
Master Owner Trust Estate for payment or satisfaction thereof. The Master Owner
Trust Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Master Owner Trust Trustee also agrees to disburse all monies actually
received by it constituting part of the Master Owner Trust Estate upon the terms
of this Agreement. The Master Owner Trust Trustee shall not be liable or
accountable hereunder or under any Issuer Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in SECTION 6.6 and expressly made by the Master Owner Trust
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Master Owner Trust Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of the Collateral Certificate or any Dealer Note or the
perfection and priority of any security interest created by the Collateral
Certificate or any Dealer Note in any Financed Vehicle or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Master Owner Trust Estate or its ability to generate the distributions and
payments to be made to Master Owner Trust Certificateholders under this
Agreement or to Noteholders under the Indenture, including, without limitation:
the existence and contents of any Dealer Note on any computer or other record
thereof; the validity of the assignment of the Collateral Certificate or any
Dealer Note to the Master Owner Trust or of any intervening assignment; the
completeness of any Dealer Note; the performance or enforcement of any Dealer
Note; the compliance by the Seller or the Servicer with any warranty or
representation made under any Issuer Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Indenture Trustee or the Servicer or any subservicer taken in
the name of the Master Owner Trust Trustee;
(b) the Master Owner Trust Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Master Owner Trust Certificateholder;
(c) no provision of this Agreement or any other Issuer Document shall
require the Master Owner Trust Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder or under any other Issuer Document, if the Master Owner Trust Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Master Owner Trust Trustee be
liable for indebtedness evidenced by or arising under any of the Issuer
Documents, including the principal of and interest on the Notes or any amounts
payable with respect to the Master Owner Trust Certificates;
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(e) the Master Owner Trust Trustee shall not be responsible for or in
respect of, the validity or sufficiency of any provision of this Agreement or
for the due execution hereof by the Seller or for the form, character,
genuineness, sufficiency, value or validity of any of the Master Owner Trust
Estate or for or in respect of the validity or sufficiency of the Issuer
Documents, the Notes, the Master Owner Trust Certificates (other than the
certificate of authentication on the Master Owner Trust Certificates) or of any
Dealer Notes or any related documents, and the Master Owner Trust Trustee shall
in no event assume or incur any liability, duty or obligation to any Noteholder
or to any Master Owner Trust Certificateholder, other than as expressly provided
for herein and in the other Issuer Documents;
(f) the Master Owner Trust Trustee shall not be liable for the default
or misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Issuer Documents or otherwise and the Master Owner
Trust Trustee shall not have any obligation or liability to perform the
obligations of the Master Owner Trust under this Agreement or the other Issuer
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture, the
Servicer under the Pooling and Servicing Agreement or Navistar Financial under
the Purchase Agreement; and
(g) the Master Owner Trust Trustee shall not be under any obligation
to exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any other Issuer Document, at the request,
order or direction of any of the Master Owner Trust Certificateholders, unless
such Master Owner Trust Certificateholders have offered to the Master Owner
Trust Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Master Owner Trust Trustee
therein or thereby. The right of the Master Owner Trust Trustee to perform any
discretionary act enumerated in this Agreement or in any Issuer Document shall
not be construed as a duty, and the Master Owner Trust Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of any such act.
SECTION 6.4 ACTION UPON INSTRUCTION BY MASTER OWNER TRUST
CERTIFICATEHOLDERS.
(a) Subject to SECTION 4.4 and SECTION 6.1(g), the Master Owner Trust
Certificateholders may by written instruction direct the Master Owner Trust
Trustee in the management of the Master Owner Trust. Such direction may be
exercised at any time by written instruction of the Master Owner Trust
Certificateholders pursuant to SECTION 4.5.
(b) Notwithstanding the foregoing, the Master Owner Trust Trustee
shall not be required to take any action hereunder or under any other Issuer
Document if the Master Owner Trust Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
liability on the part of the Master Owner Trust Trustee or is contrary to the
terms hereof or of any Issuer Document or is otherwise contrary to law.
(c) Whenever the Master Owner Trust Trustee is unable to decide
between alternative courses of action permitted or required by the terms of this
Agreement or any other Issuer Document, or is unsure as to the application,
intent, interpretation or meaning of any provision of this Agreement or the
other Issuer Documents, the Master Owner Trust Trustee
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shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Master Owner Trust Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Master Owner Trust Trustee acts in good faith in accordance with any such
instruction received, the Master Owner Trust Trustee shall not be liable on
account of such action to any Person. If the Master Owner Trust Trustee shall
not have received appropriate instructions within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action which is consistent, in its view,
with this Agreement or the other Issuer Documents, and as it shall deem to be in
the best interests of the Master Owner Trust Certificateholders, and the Master
Owner Trust Trustee shall have no liability to any Person for any such action or
inaction.
SECTION 6.5 FURNISHING OF DOCUMENTS. The Master Owner Trust Trustee shall
furnish to the Master Owner Trust Certificateholders and the Indenture Trustee,
promptly upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and any
other instruments furnished to the Master Owner Trust or the Master Owner Trust
Trustee under the Issuer Documents.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF MASTER OWNER TRUST TRUSTEE.
The Master Owner Trust Trustee (as such and in its individual capacity) hereby
represents and warrants to the Seller, for the benefit of the Master Owner Trust
Certificateholders, that:
(a) It is a national bank duly organized, validly existing and in good
standing under the laws of the United States of America. The eligibility
requirements set forth in SECTION 6.13 (a) - (d) are satisfied with respect to
it.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the Master Owner Trust Trustee or any order, writ,
judgment or decree of any court, arbitrator or governmental authority applicable
to the Master Owner Trust Trustee or any of its assets, (ii) shall not violate
any provision of the charter or by-laws of the Master Owner Trust Trustee, or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Master Owner Trust Estate pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Master Owner
Trust Trustee's performance or ability to perform its duties as Master Owner
Trust Trustee under this Agreement or on the transactions contemplated in this
Agreement.
(d) The execution, delivery and performance by the Master Owner Trust
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any
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governmental authority or agency regulating the corporate trust activities of
the Master Owner Trust Trustee.
(e) This Agreement has been duly executed and delivered by the Master
Owner Trust Trustee and constitutes the legal, valid and binding agreement of
the Master Owner Trust Trustee, enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Master Owner Trust Trustee shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties
and need not investigate any fact or matter in any such document. The Master
Owner Trust Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Master Owner Trust Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Master Owner Trust Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Issuer
Documents, the Master Owner Trust Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees pursuant to agreements entered into
with any of them, and the Master Owner Trust Trustee shall not be liable for the
conduct or misconduct of such agents, attorneys, custodians or nominees if such
agents, attorneys, custodians or nominees shall have been selected by the Master
Owner Trust Trustee with reasonable care and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable care
and employed by it. The Master Owner Trust Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any other Issuer Document.
SECTION 6.8 MASTER OWNER TRUST TRUSTEE MAY OWN MASTER OWNER TRUST
CERTIFICATES AND NOTES. The Master Owner Trust Trustee in its individual or any
other capacity may become the owner or pledgee of Master Owner Trust
Certificates or Notes and may deal with the Seller, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Master Owner Trust Trustee.
SECTION 6.9 COMPENSATION AND INDEMNITY.
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(a) The Master Owner Trust Trustee shall receive as compensation from
the Servicer for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Servicer and the Master Owner Trust
Trustee, and the Master Owner Trust Trustee shall be entitled to be reimbursed
by the Servicer for its fees and other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
custodians, nominees, representatives, experts and counsel as it may employ in
connection with the exercise and performance of its rights and its duties
hereunder as provided in SECTION 3.02 of the Series Supplement. The Servicer
shall indemnify the Master Owner Trust Trustee and its successors, assigns,
agents and servants in accordance with the provisions of SECTION 3.03 of the
Series Supplement. The compensation and indemnities described in this SECTION
6.9 shall survive the resignation or termination of the Master Owner Trust
Trustee or the termination of this Agreement. Any amounts paid to the Master
Owner Trust Trustee pursuant to this ARTICLE VI shall not be deemed to be a part
of the Master Owner Trust Estate immediately after such payment.
SECTION 6.10 REPLACEMENT OF MASTER OWNER TRUST TRUSTEE.
(a) The Master Owner Trust Trustee may give notice of its intent to
resign and be discharged from the trusts hereby created by written notice
thereof to the Administrator; PROVIDED THAT no such resignation shall become
effective, and the Master Owner Trust Trustee shall not resign, prior to the
time set forth in SECTION 6.10(c). The Administrator may appoint a successor
Master Owner Trust Trustee by delivering a written instrument, in duplicate, to
the resigning Master Owner Trust Trustee and the successor Master Owner Trust
Trustee. If no successor Master Owner Trust Trustee shall have been appointed
and have accepted its appointment within 30 days after the giving of such
notice, the resigning Master Owner Trust Trustee giving such notice may petition
any court of competent jurisdiction for the appointment of a successor Master
Owner Trust Trustee. The Administrator shall remove the Master Owner Trust
Trustee if:
(i) the Master Owner Trust Trustee shall cease to be
eligible in accordance with the provisions of SECTION 6.13 and
shall fail to resign after written request therefor by the
Administrator;
(ii) the Master Owner Trust Trustee shall be adjudged
bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed
or take charge or control of the Master Owner Trust Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
(iv) the Master Owner Trust Trustee shall otherwise be
incapable of acting.
(b) If the Master Owner Trust Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of Master Owner Trust
Trustee for any reason, the Administrator shall promptly appoint a successor
Master Owner Trust Trustee by written instrument, in duplicate (one copy of
which instrument shall be delivered to the outgoing Master
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Owner Trust Trustee so removed and one copy to the successor Master Owner Trust
Trustee) and shall pay all fees owed to the outgoing Master Owner Trust Trustee.
(c) Any resignation or removal of the Master Owner Trust Trustee and
appointment of a successor Master Owner Trust Trustee pursuant to any of the
provisions of this SECTION 6.10 shall not become effective and no such
resignation shall be deemed to have occurred until a written acceptance of
appointment is delivered by the successor Master Owner Trust Trustee to the
outgoing Master Owner Trust Trustee and the Administrator and all fees and
expenses due to the outgoing Master Owner Trust Trustee are paid. Any successor
Master Owner Trust Trustee appointed pursuant to this SECTION 6.10 shall be
eligible to act in such capacity in accordance with SECTION 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Master Owner Trust Trustee. The
Administrator shall provide notice of such resignation or removal of the Master
Owner Trust Trustee to each of the Note Rating Agencies.
(d) The predecessor Master Owner Trust Trustee shall upon payment of
its fees and expenses deliver to the successor Master Owner Trust Trustee all
documents and statements and monies held by it under this Agreement. The
Administrator and the predecessor Master Owner Trust Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Master Owner
Trust Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Master Owner Trust
Trustee pursuant to this SECTION 6.10, the Administrator shall mail notice of
the successor of such Master Owner Trust Trustee to all Master Owner Trust
Certificateholders, the Indenture Trustee, the Noteholders and the Note Rating
Agencies. The successor Master Owner Trust Trustee shall file an appropriate
amendment to the Certificate of Trust.
SECTION 6.11 MERGER OR CONSOLIDATION OF MASTER OWNER TRUST TRUSTEE. Any
Person into which the Master Owner Trust Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Master Owner Trust Trustee shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Master Owner Trust Trustee, shall be the successor of the
Master Owner Trust Trustee hereunder, provided such Person shall be eligible
pursuant to SECTION 6.13, and without the execution or filing of any instrument
or any further act on the part of any of the parties hereto; PROVIDED, HOWEVER,
that (a) the Master Owner Trust Trustee shall mail notice of such merger or
consolidation to the Note Rating Agencies and (b) the Master Owner Trust Trustee
shall file any necessary amendment to the Certificate of Trust with the
Secretary of State of Delaware.
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Master Owner Trust Estate may at the time be located, the
Administrator and the Master Owner Trust Trustee acting jointly shall have the
power and shall execute and deliver all instruments to
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appoint one or more Persons approved by each of the Administrator and the Master
Owner Trust Trustee to act as co-trustee, jointly with the Master Owner Trust
Trustee, or as separate trustee or trustees, of all or any part of the Master
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Master Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this SECTION 6.12, such powers, duties, obligations, rights and
trusts as the Administrator and the Master Owner Trust Trustee may consider
necessary or desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so, the
Master Owner Trust Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to SECTION 6.13 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to SECTION 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Master Owner Trust Trustee shall be conferred
upon and exercised or performed by the Master Owner Trust Trustee
and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Master Owner Trust
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are
to be performed, the Master Owner Trust Trustee shall be
incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Master Owner Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Master Owner Trust Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement (unless such other trustee acts or fails to
act at the direction of such first trustee); and
(iii) the Administrator and the Master Owner Trust Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Master Owner
Trust Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Master Owner Trust Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Master Owner Trust Trustee. Each
such instrument
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shall be filed with the Master Owner Trust Trustee and a copy thereof given to
the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Master Owner Trust Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Master Owner Trust Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR MASTER OWNER TRUST TRUSTEE. The
Master Owner Trust Trustee shall at all times: (a) be a corporation, a national
banking association or a bank satisfying the provisions of Section 3807(a) of
the Statutory Trust Statute; (b) be authorized to exercise corporate trust
powers; (c) have a combined capital and surplus of at least $50,000,000 and be
subject to supervision or examination by federal or state authorities; and (d)
have a long-term unsecured debt rating of at least BBB- by Standard & Poor's or
be otherwise satisfactory to Standard & Poor's. If such Person or bank shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this SECTION 6.13, the combined capital and surplus of such Person or
bank shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Master Owner
Trust Trustee shall cease to be eligible in accordance with the provisions of
this SECTION 6.13, the Master Owner Trust Trustee shall resign immediately in
the manner and with the effect specified in SECTION 6.10.
ARTICLE VII
TERMINATION OF
MASTER OWNER TRUST AGREEMENT
SECTION 7.1 TERMINATION OF MASTER OWNER TRUST AGREEMENT.
(a) The Master Owner Trust shall dissolve and wind up in accordance
with Section 3808 of the Statutory Trust Statute on or immediately preceding the
final distribution by the Master Owner Trust Trustee of all monies or other
property or proceeds of the Master Owner Trust Estate in accordance with the
terms of the Indenture, the Pooling and Servicing Agreement and ARTICLE V. The
bankruptcy, liquidation, dissolution, death or incapacity of any Master Owner
Trust Certificateholder shall not (x) operate to terminate this Agreement or the
Master Owner Trust, nor (y) entitle such Master Owner Trust Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Master Owner Trust or the Master Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) This Agreement shall be irrevocable. Except as provided in SECTION
7.1(a) and in this SECTION 7.1(b), neither the Seller nor any Master Owner Trust
Certificateholder shall be entitled to revoke or terminate the Master Owner
Trust or this Agreement. Each of the Seller, the Master Owner Trust and the
Master Owner Trust Trustee acknowledges that the Indenture Trustee, on behalf of
the Noteholders, is a third-party beneficiary of this Agreement. For so long
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as the Notes are outstanding, neither the Master Owner Trust nor this Agreement
shall be revoked without the consent of the Indenture Trustee. Each of the
Seller, the Master Owner Trust and the Master Owner Trust Trustee acknowledges
that the Indenture Trustee, as an agent of the Noteholders, maintains a
legitimate interest in ensuring that the Master Owner Trust is not revoked prior
to the fulfillment of the Master Owner Trust objectives. In no event may this
Agreement be amended without the consent of the Indenture Trustee if the effect
of such amendment is the revocation or termination of this Master Owner Trust
other than in accordance with this SECTION 7.1.
(c) Notice of any dissolution of the Master Owner Trust specifying the
Distribution Date upon which the Master Owner Trust Certificateholders shall
surrender their Master Owner Trust Certificates to the Master Owner Trust
Trustee for payment of the final distribution and cancellation, shall be given
by the Master Owner Trust Trustee by letter to Master Owner Trust
Certificateholders mailed within five Business Days of receipt of notice of
dissolution from the Servicer given pursuant to SECTION 7.1(c) of the Indenture,
stating: (i) the Distribution Date upon or with respect to which the final
distribution on the Master Owner Trust Certificates shall be made upon
presentation and surrender of the Master Owner Trust Certificates at the office
of the Master Owner Trust Trustee; (ii) the amount of any such final
distribution; and (iii) that the Note Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Master Owner Trust Certificates at the office
of the Master Owner Trust Trustee therein specified. The Master Owner Trust
Trustee shall give such notice to the Certificate Registrar (if other than the
Master Owner Trust Trustee) and the Master Owner Trust Trustee at the time such
notice is given to Master Owner Trust Certificateholders. Upon presentation and
surrender of the Master Owner Trust Certificates, the Master Owner Trust Trustee
shall cause to be distributed to Master Owner Trust Certificateholders amounts
distributable on such Distribution Date pursuant to SECTION 5.2.
(d) If all of the Master Owner Trust Certificateholders shall not
surrender their Master Owner Trust Certificates for cancellation within six
months after the date specified in the written notice specified in SECTION
7.1(c), the Master Owner Trust Trustee shall give a second written notice to the
remaining Master Owner Trust Certificateholders to surrender their Master Owner
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Master Owner
Trust Certificates shall not have been surrendered for cancellation, the Master
Owner Trust Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Master Owner Trust
Certificateholders concerning surrender of their Master Owner Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable laws
with respect to escheat of funds, any funds remaining in the Master Owner Trust
Estate after exhaustion of such remedies in the preceding sentence shall be
deemed property of the Seller and distributed by the Master Owner Trust Trustee
to the Seller.
(e) Within 60 days of the later of (i) the cancellation of all of the
Master Owner Trust Certificates pursuant to SECTION 7.1(c) or SECTION 7.1(d), or
(ii) payment to the Seller of funds remaining in the Master Owner Trust Estate
pursuant to SECTION 7.1(d), the Master Owner Trust Trustee shall provide each of
the Note Rating Agencies with written notice stating that all
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Master Owner Trust Certificates have been so canceled or such funds have been so
paid to the Seller.
(f) Upon completion of the winding up of the trust, the Master Owner
Trust Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State of Delaware in
accordance with the provisions of Section 3810 of the Statutory Trust Statute
and, upon such filing, the Master Owner Trust shall terminate.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF MASTER OWNER TRUST
CERTIFICATEHOLDERS OR NOTEHOLDERS. This Agreement may be amended by the Seller
and the Master Owner Trust Trustee without the consent of any of the
Securityholders (but with prior notice to each of the Note Rating Agencies) to
(i) cure any ambiguity, (ii) correct or supplement any provision in this
Agreement that may be defective or inconsistent with any other provision in this
Agreement or any other Issuer Document, (iii) add or supplement any credit
enhancement for the benefit of the Securityholders (provided that if any such
addition shall affect any class of Securityholders differently than any other
class of Securityholders, then such addition shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any class of the Securityholders), (iv) add to the covenants, restrictions or
obligations of the Seller or the Master Owner Trust Trustee for the benefit of
the Securityholders, (v) evidence and provide for the acceptance of the
appointment of a successor Master Owner Trust Trustee with respect to the Master
Owner Trust Estate and add to or change any provisions as shall be necessary to
facilitate the administration of the trusts hereunder by more than one Master
Owner Trust Trustee pursuant to ARTICLE VI, or (vi) add, change or eliminate any
other provision of this Agreement in any manner that shall not, as evidenced by
a Master Owner Trust Opinion of Counsel, adversely affect in any material
respect the interests of the Securityholders.
SECTION 8.2 AMENDMENTS WITH CONSENT OF MASTER OWNER TRUST
CERTIFICATEHOLDERS AND NOTEHOLDERS. This Agreement may be amended from time to
time by the Seller and the Master Owner Trust Trustee with the consent of
Noteholders whose Notes evidence not less than a majority of the Outstanding
Principal Amount of the Notes as of the close of business on the preceding
Distribution Date and the consent of the holders of Master Owner Trust
Certificates evidencing not less than a majority of the ownership interests in
the Master Owner Trust Estate as of the close of business on the preceding
Distribution Date (which consent, whether given pursuant to this SECTION 8.2 or
pursuant to any other provision of this Agreement, shall be conclusive and
binding on such Person and on all future holders of such Notes or Master Owner
Trust Certificates and of any Notes or Master Owner Trust Certificates issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether or
not notation of such consent is made upon the Notes or Master Owner Trust
Certificates) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Master Owner Trust
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Collateral Certificate or the Dealer Notes or
distributions that shall be required to be made on any Note, (b) reduce the
aforesaid percentage required to consent to any such amendment or (c)
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amend SECTION 4.3, without the consent of the Holders of all of the Notes and
the holders of all of the Master Owner Trust Certificates then outstanding;
PROVIDED FURTHER, that such amendment will not, as evidenced by a Master Owner
Trust Tax Opinion addressed and delivered to the Master Owner Trust Trustee and
the Indenture Trustee, cause the Master Owner Trust to be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. The Administrator shall furnish notice of the
substance of any proposed amendment, supplement or consent under this SECTION
8.2 to each of the Note Rating Agencies prior to obtaining consent thereto.
SECTION 8.3 FORM OF AMENDMENTS.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to SECTION 8.1 OR 8.2, the Master Owner Trust Trustee shall
furnish written notification of the substance of such amendment or consent to
each Master Owner Trust Certificateholder, the Indenture Trustee and each Note
Rating Agency.
(b) It shall not be necessary for the consent of Master Owner Trust
Certificateholders, the Noteholders or the Indenture Trustee pursuant to SECTION
8.2 to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Master Owner Trust
Certificateholders provided for in this Agreement or in any other Issuer
Document) and of evidencing the authorization of the execution thereof by Master
Owner Trust Certificateholders and Noteholders shall be subject to such
reasonable requirements as the Master Owner Trust Trustee may prescribe.
(c) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Master Owner Trust Trustee shall be entitled to
receive and rely upon a Master Owner Trust Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to such execution have been satisfied. The Master
Owner Trust Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Master Owner Trust Trustee's own rights, duties or
immunities under this Agreement or otherwise.
(d) Promptly after the execution of any amendment to the Certificate
of Trust, the Master Owner Trust Trustee shall cause the filing of such
amendment with the Secretary of State of the State of Delaware.
(e) Notwithstanding any other provision of this Agreement, if the
consent of an Enhancement Provider is required pursuant to any Enhancement
Agreement to amend this Agreement, any such purported amendment shall be null
and void ab initio unless such Enhancement Provider consents in writing to such
amendment.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NO LEGAL TITLE TO MASTER OWNER TRUST ESTATE. The Master Owner
Trust Certificateholders shall not have legal title to any part of the Master
Owner Trust Estate. The
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Master Owner Trust Certificateholders shall be entitled to receive distributions
with respect to their undivided beneficial interest therein only in accordance
with ARTICLES V AND VII. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Master Owner Trust Certificateholders to and
in their ownership interest in the Master Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Master
Owner Trust Estate.
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Master Owner Trust Trustee (as such
and in its individual capacity) and any other Person that is indemnified by the
Servicer under SECTION 6.9 of this Agreement, the Seller, the Master Owner Trust
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Master Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein. The Administrator shall be a third party
beneficiary with respect to the rights granted to it under SECTION 6.10(a).
SECTION 9.3 NOTICES. All demands, notices and communications upon or to the
Seller, the Servicer, the Administrator, the Indenture Trustee, the Master Owner
Trust Trustee, the Note Rating Agencies or any Master Owner Trust
Certificateholder under this Agreement shall be delivered as specified in
SECTION 1.05 of the Indenture.
SECTION 9.4 SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
enforceable to the fullest extent permitted, and if not so permitted, shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of the Master Owner Trust Certificates
or the rights of the holders thereof.
SECTION 9.5 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6 SUCCESSORS AND ASSIGNS. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the
Master Owner Trust Trustee and each Master Owner Trust Certificateholder and
their respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by a
Master Owner Trust Certificateholder shall bind the successors and assigns of
such Master Owner Trust Certificateholder.
SECTION 9.7 NO PETITION COVENANT. Notwithstanding any prior termination of
this Agreement, the Master Owner Trust Trustee (as such and in its individual
capacity), and each Master Owner Trust Certificateholder, by accepting a Master
Owner Trust Certificate (or interest therein), hereby covenant and agree that
they shall not, prior to the date which is one year and one day after the
termination of this Agreement acquiesce, petition or otherwise invoke or cause
- 32 -
the Issuer or the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Issuer
or the Seller under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Issuer or the Seller or any substantial part of
either of their properties, or ordering the winding up or liquidation of the
affairs of the Issuer or the Seller.
Notwithstanding any prior termination of this Agreement, the Seller hereby
covenants and agrees that it shall not, prior to the date which is one year and
one day after the termination of this Agreement acquiesce, petition or otherwise
invoke or cause the Master Owner Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Master Owner Trust under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Master Owner Trust or
any substantial part of its property, or ordering or winding up or liquidation
of the affairs of the Master Owner Trust.
SECTION 9.8 NO RECOURSE. Each Master Owner Trust Certificateholder by
accepting a Master Owner Trust Certificate (or interest therein) acknowledges
that such Person's Master Owner Trust Certificate (or interest therein)
represents beneficial interests in the Master Owner Trust only and does not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Master Owner Trust Trustee, the Indenture Trustee or any
Affiliate thereof and no recourse, either directly or indirectly, may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Master Owner Trust Certificates or the other
Issuer Documents. Except as expressly provided in the Issuer Documents, neither
the Seller, the Servicer nor the Master Owner Trust Trustee in their respective
individual capacities, nor any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns, shall be
personally liable for, nor shall recourse be had to any of them for, the
distribution of any amount with respect to the Master Owner Trust Certificates,
or the Master Owner Trust Trustee's performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in the Master Owner
Trust Certificates or this Agreement, it being expressly understood that said
covenants and obligations have been made by the Master Owner Trust Trustee
solely in its capacity as the Master Owner Trust Trustee. Each Master Owner
Trust Certificateholder by the acceptance of a Master Owner Trust Certificate
(or beneficial interest therein) shall agree that, except as expressly provided
in the Issuer Documents, in the case of nonpayment of any amounts with respect
to the Master Owner Trust Certificates, it shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom.
SECTION 9.9 HEADINGS. The headings of the various Articles and Sections
herein are for purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
SECTION 9.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
- 33 -
SECTION 9.11 ADMINISTRATOR. The Administrator is authorized to execute on
behalf of the Master Owner Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Master
Owner Trust to prepare, file or deliver pursuant to the Issuer Documents. Upon
request, the Master Owner Trust Trustee shall execute and deliver to the
Administrator a power of attorney appointing the Administrator as the Master
Owner Trust's agent and attorney-in-fact to execute all such documents, reports,
filings, instruments, certificates and opinions.
SECTION 9.12 AMENDED AND RESTATED MASTER OWNER TRUST AGREEMENT. It is the
intent of the parties hereto that this Master Owner Trust Agreement shall as of
___ __, 200_, replace in its entirety the Initial Master Owner Trust Agreement;
PROVIDED, that with respect to the period of time from ___ __, 200_ through ___
__, 200_, the rights and obligations of the parties shall be governed by the
Initial Master Owner Trust Agreement; PROVIDED FURTHER, that the amendment and
restatement of the Initial Master Owner Trust Agreement shall not affect any of
the grants, conveyances or transfers contemplated by the Initial Master Owner
Trust Agreement to have occurred prior to the date hereof.
SECTION 9.13 TAX DISCLOSURE. Each of the undersigned parties agrees to
comply with SECTION 14.11 of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Master Owner
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Master Owner
Trust Trustee
By:
------------------------------
Name:
Title:
NAVISTAR FINANCIAL SECURITIES
CORPORATION, as Seller
By:
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
EXHIBIT A
FORM OF MASTER OWNER TRUST CERTIFICATE
NUMBER R-__
OWNERSHIP INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS MASTER OWNER TRUST CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"))
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS OF ANY SUCH PLAN. BY ACCEPTING AND HOLDING THIS MASTER OWNER
TRUST CERTIFICATE, THE MASTER OWNER TRUST CERTIFICATEHOLDER HEREOF AND THE
MASTER OWNER TRUST CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS MASTER OWNER TRUST CERTIFICATE WERE
ORIGINALLY ISSUED ON _____ __, 200_ HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
Navistar Financial Dealer Note Master Owner Trust
MASTER OWNER TRUST CERTIFICATE
evidencing a fractional undivided interest in the Master Owner Trust, as
defined below, the property of which includes a Collateral Certificate (as
defined below) in the
Navistar Financial Dealer Note Master Trust (the
"MASTER TRUST"). The primary assets of the Master Trust consist of a
revolving pool of Dealer Notes arising under floor plan financing
agreements between Navistar Financial Corporation and retail dealers to
finance their inventories of new and used trucks, truck bodies, buses and
trailers.
This Master Owner Trust Certificate does not represent an interest in or
obligation of the
Navistar Financial Dealer Note Master Trust, Navistar
Financial Securities Corporation, Navistar Financial Corporation,
International Truck and Engine Corporation, Navistar International
Corporation, the Indenture Trustee, the ▇▇▇▇▇▇
▇- ▇
Owner Trust Trustee or any of their respective Affiliates, except to the
extent described below.)
THIS CERTIFIES THAT _________________________ is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in Navistar
Financial Dealer Note Master Owner Trust (the "MASTER OWNER TRUST").
The Master Owner Trust was created pursuant to a trust agreement,
dated as of _____ __, 200_ (as amended and restated as of ______ __, 200_ and as
further amended, restated or supplemented from time to time, the "MASTER OWNER
TRUST AGREEMENT"), between the Seller and _______, as Master Owner Trust Trustee
(the "MASTER OWNER TRUST TRUSTEE"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Master Owner Trust Agreement.
This Master Owner Trust Certificate is issued under and is subject to
the terms, provisions and conditions of the Master Owner Trust Agreement, the
terms of which are incorporated herein by reference and made a part hereof, to
which Master Owner Trust Agreement the Master Owner Trust Certificateholder of
this Master Owner Trust Certificate by virtue of the acceptance hereof assents
and by which such Master Owner Trust Certificateholder is bound.
The Master Owner Trust Certificateholder of this Master Owner Trust
Certificate acknowledges and agrees that its rights to receive distributions in
respect of this Master Owner Trust Certificate are subordinated to the rights of
the Noteholders as and to the extent described in the Pooling and Servicing
Agreement and the Indenture.
Each Master Owner Trust Certificateholder with respect to a Master
Owner Trust Certificate, by its acceptance of a Master Owner Trust Certificate,
covenants and agrees that such Master Owner Trust Certificateholder with respect
to a Master Owner Trust Certificate, shall not, prior to the date which is one
year and one day after the termination of the Master Owner Trust Agreement,
acquiesce, petition or otherwise invoke or cause the Seller to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining a case against the Seller under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller.
Distributions on this Master Owner Trust Certificate shall be made as
provided in the Master Owner Trust Agreement by the Master Owner Trust Trustee
by wire transfer, check mailed or, where possible, intra-bank book entry to the
Master Owner Trust Certificateholder of record in the Certificate Register
without the presentation or surrender of this Master Owner Trust Certificate or
the making of any notation hereon. Except as otherwise provided in the Master
Owner Trust Agreement and notwithstanding the above, the final distribution on
this Master Owner Trust Certificate shall be made after due notice by the Master
Owner Trust Trustee of the pendency of such distribution and only upon
presentation and surrender of this
A- 2
Master Owner Trust Certificate at the office maintained for such purpose by the
Master Owner Trust Trustee in the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this Master
Owner Trust Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Master Owner Trust Trustee by manual
signature, this Master Owner Trust Certificate shall not entitle the Master
Owner Trust Certificateholder hereof to any benefit under the Master Owner Trust
Agreement, the Pooling and Servicing Agreement or be valid for any purpose.
THIS MASTER OWNER TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A- 3
IN WITNESS WHEREOF, the Master Owner Trust Trustee, not in its
individual capacity, but solely as Master Owner Trust Trustee, has caused this
Master Owner Trust Certificate to be duly executed.
Dated: ____________, _____ NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
not in its individual capacity but solely as Master
Owner Trust Trustee
By:
-----------------------------------
Name:
Title:
MASTER OWNER TRUST TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Master Owner Trust Certificates referred to in the
within-mentioned Master Owner Trust Agreement.
---------------------------- ---------------------------
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, CHASE MANHATTAN BANK USA,
not in its individual capacity but solely NATIONAL ASSOCIATION,
as Master Owner Trust Trustee not in its individual capacity but
solely as Master Owner Trust Trustee
By: _____________, as
Authenticating Agent
OR
By: By:
--------------------------------------- -------------------------------
Authorized Officer Authorized Officer
REVERSE OF MASTER OWNER TRUST CERTIFICATE
The Master Owner Trust Certificates do not represent an obligation of,
or an interest in the
Navistar Financial Dealer Note Master Trust, Navistar
Financial Securities Corporation, Navistar Financial Corporation, International
Truck and Engine Corporation, Navistar International Corporation, the Indenture
Trustee, the Master Owner Trust Trustee or any of their respective Affiliates,
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated herein or in the Master Owner Trust
Agreement or the other Issuer Documents. In addition, this Master Owner Trust
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with
respect to the Collateral Certificate [and/or the Dealer Notes] (and certain
other amounts), all as more specifically set forth herein and in the Master
Owner Trust Agreement and the Pooling and Servicing Agreement. A copy of each of
the Pooling and Servicing Agreement and the Master Owner Trust Agreement may be
examined during normal business hours at the principal office of the Seller, and
at such other places, if any, designated by the Seller, by any Master Owner
Trust Certificateholder upon written request.
The Master Owner Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Master Owner Trust
Certificateholders under the Master Owner Trust Agreement at any time by the
Seller and the Master Owner Trust Trustee with the consent of (i) the Holders of
the Notes evidencing not less than a majority of the Outstanding Principal
Amount of the Notes, and (ii) Master Owner Trust Certificateholders whose Master
Owner Trust Certificates evidence not less than a majority of the ownership
interest in the Master Owner Trust, each as of the close of the preceding
Distribution Date. Any such consent by the Master Owner Trust Certificateholder
of this Master Owner Trust Certificate shall be conclusive and binding on such
Master Owner Trust Certificateholder and on all future holders of this Master
Owner Trust Certificate and of any Master Owner Trust Certificate issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Master Owner Trust
Certificate. The Master Owner Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the holders of any of
the Master Owner Trust Certificates or the Notes.
As provided in the Master Owner Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Master Owner Trust
Certificate is registerable in the Certificate Register upon surrender of this
Master Owner Trust Certificate for registration of transfer at the offices or
agencies of the Certificate Registrar maintained by the Master Owner Trust
Trustee in the City of New York, accompanied by (i) a written instrument of
transfer in form satisfactory to the Master Owner Trust Trustee and the
Certificate Registrar duly executed by the Master Owner Trust Certificateholder
hereof or such Master Owner Trust Certificateholder's attorney duly authorized
in writing and (ii) certain opinions required by SECTION 3.4(b) of the Master
Owner Trust Agreement, and thereupon one or more new Master Owner Trust
Certificates of authorized denominations evidencing the same aggregate interest
in the Master Owner Trust will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Master Owner Trust Agreement
is JPMorgan Chase Bank.
The Master Owner Trust Trustee, the Certificate Registrar and any
agent of the Master Owner Trust Trustee or the Certificate Registrar may treat
the Person in whose name this Master Owner Trust Certificate is registered as
the owner hereof for all purposes, and none of the Master Owner Trust Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Master Owner Trust
Agreement and the Master Owner Trust created thereby shall terminate upon the
distribution to Master Owner Trust Certificateholders of all amounts required to
be distributed to them pursuant to the Master Owner Trust Agreement, the Pooling
and Servicing Agreement, the Indenture and the disposition of all property held
as part of the Master Owner Trust.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Master Owner Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_________________________________________________________ Attorney to transfer
said Master Owner Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: *
-----------------------------------------
Signature Guaranteed:
*
-----------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Master Owner Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
Certificate of Trust of NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER
TRUST (the "TRUST") is being duly executed and filed by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
DEL. C. Section 3801 ET SEQ.) (the "ACT").
1. NAME. The name of the business trust formed by this Certificate
of Trust is Navistar Financial Dealer Note Master Owner Trust.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇/▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on April 30, 2004.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a) of the Act.
Chase Manhattan Bank USA, National
Association, as Owner Trustee,
By:
------------------------------
Name:
Title:
B-1
