Exhibit 4.9
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NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
INDENTURE
dated as of ________ __, 200_
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................2
Section 1.01 Definitions............................................................................2
Section 1.02 Compliance Certificates and Opinions..................................................15
Section 1.03 Form of Documents Delivered to Indenture Trustee......................................17
Section 1.04 Acts of Noteholders...................................................................17
Section 1.05 Notices, etc., to Indenture Trustee and Issuer........................................18
Section 1.06 Notices to Noteholders; Waiver to Noteholders.........................................18
Section 1.07 Conflict with Trust Indenture Act.....................................................21
Section 1.08 Effect of Headings and Table of Contents..............................................21
Section 1.09 Successors and Assigns................................................................21
Section 1.10 Separability..........................................................................21
Section 1.11 Benefits of Indenture.................................................................21
Section 1.12 Governing Law.........................................................................22
Section 1.13 Counterparts..........................................................................22
Section 1.14 Indenture Referred to in the Master Owner Trust Agreement.............................22
ARTICLE II NOTE FORMS............................................................................................22
Section 2.01 Forms Generally.......................................................................22
Section 2.02 Forms of Notes........................................................................22
Section 2.03 Form of Indenture Trustee's Certificate of Authentication.............................23
Section 2.04 Notes Issuable in the Form of a Global Note...........................................23
Section 2.05 Temporary Global Notes and Permanent Global Notes.....................................25
Section 2.06 Beneficial Ownership of Global Notes..................................................26
Section 2.07 Notices to Depository.................................................................27
ARTICLE III THE NOTES............................................................................................27
Section 3.01 General Title; General Limitations; Issuable in Series; Terms of a Series or Class....27
Section 3.02 Denominations.........................................................................30
Section 3.03 Execution, Authentication and Delivery and Dating.....................................30
Section 3.04 Temporary Notes.......................................................................31
Section 3.05 Registration, Transfer and Exchange...................................................31
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes...........................................33
Section 3.07 Payment of Interest; Interest Rights Preserved........................................34
Section 3.08 Persons Deemed Owners.................................................................34
Section 3.09 Cancellation..........................................................................35
Section 3.10 New Issuances of Notes................................................................35
Section 3.11 Specification of Overcollateralization Amount and other Terms with Respect to each
Class.................................................................................36
Section 3.12 Reallocation of Noteholder Available Interest Amounts and Noteholder Available
Principal Amounts.....................................................................37
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ARTICLE IV ACCOUNTS AND INVESTMENTS..............................................................................37
Section 4.01 Receipts..............................................................................37
Section 4.02 Accounts..............................................................................37
Section 4.03 Investment of Funds in the Accounts...................................................38
ARTICLE V ALLOCATIONS, DEPOSITS AND PAYMENTS.....................................................................39
Section 5.01 Allocation of Funds from the Collateral Certificate to Notes..........................39
SECTION 5.02 EXCESS AVAILABLE PRINCIPAL AMOUNTS; SHARED PRINCIPAL COLLECTIONS......................39
SECTION 5.03 EXCESS AVAILABLE INTEREST AMOUNTS; EXCESS FINANCE CHARGE COLLECTIONS..................40
Section 5.04 Final Payment.........................................................................40
Section 5.05 Payments within a Series or Class.....................................................40
ARTICLE VI SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR NFSC..........................41
Section 6.01 Satisfaction and Discharge of
Indenture...............................................41
Section 6.02 Application of Trust Money............................................................41
Section 6.03 Cancellation of Notes Held by the Issuer or NFSC......................................42
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES.......................................................................42
Section 7.01 Events of Default.....................................................................42
Section 7.02 Acceleration of Maturity; Rescission and Annulment....................................43
Section 7.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.............44
Section 7.04 Indenture Trustee May File Proofs of Claim............................................45
Section 7.05 Indenture Trustee May Enforce Claims Without Possession of Notes......................45
Section 7.06 Application of Money Collected........................................................46
Section 7.07 Issuer Will Hold the Collateral Certificate...........................................46
Section 7.08 Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any
Proceeding for Any Remedy Available to the Indenture Trustee..........................46
Section 7.09 Limitation on Suits...................................................................46
Section 7.10 Unconditional Right of Noteholders to Receive Principal and Interest; Limited
Recourse..............................................................................47
Section 7.11 Restoration of Rights and Remedies....................................................47
Section 7.12 Rights and Remedies Cumulative........................................................47
Section 7.13 Delay or Omission Not Waiver..........................................................47
Section 7.14 Control by Noteholders................................................................48
Section 7.15 Waiver of Past Defaults...............................................................48
Section 7.16 Undertaking for Costs.................................................................48
Section 7.17 Waiver of Stay or Extension Laws......................................................49
ARTICLE VIII THE INDENTURE TRUSTEE...............................................................................49
Section 8.01 Certain Duties and Responsibilities...................................................49
Section 8.02 Notice of Defaults....................................................................50
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Section 8.03 Certain Rights of Indenture Trustee...................................................50
Section 8.04 Not Responsible for Recitals or Issuance of Notes.....................................51
Section 8.05 May Hold Notes........................................................................51
Section 8.06 Money Held in Trust...................................................................51
Section 8.07 Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity....52
Section 8.08 Disqualification; Conflicting Interests...............................................52
Section 8.09 Corporate Indenture Trustee Required; Eligibility.....................................52
Section 8.10 Resignation and Removal; Appointment of Successor.....................................53
Section 8.11 Acceptance of Appointment by Successor................................................54
Section 8.12 Merger, Conversion, Consolidation or Succession to Business...........................55
Section 8.13 Preferential Collection of Claims Against Issuer......................................55
Section 8.14 Appointment of Authenticating Agent...................................................55
Section 8.15 Tax Returns...........................................................................56
Section 8.16 Representations and Covenants of the Indenture Trustee................................57
Section 8.17 Custody of the Collateral.............................................................57
Section 8.18 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....................58
ARTICLE IX NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER AND MASTER OWNER TRUST
BENEFICIARY.............................................................................................59
Section 9.01 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders. The Issuer
will furnish or cause to be furnished to the Indenture Trustee........................59
Section 9.02 Preservation of Information; Communications to Noteholders............................59
Section 9.03 Reports by Indenture Trustee..........................................................60
Section 9.04 Meetings of Noteholders; Amendments and Waivers.......................................61
Section 9.05 Reports by Issuer to the Commission...................................................62
Section 9.06 Reports by Indenture Trustee..........................................................63
Section 9.07 Monthly Noteholders' Statement........................................................63
Section 9.08 Payment Instruction to Master Trust...................................................63
ARTICLE X INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT AND AMENDMENTS TO THE
TRUST AGREEMENT.........................................................................................63
Section 10.01 Supplemental Indentures Without Consent of Noteholders................................63
Section 10.02 Supplemental Indentures with Consent of Noteholders...................................65
Section 10.03 Execution of Indenture Supplements....................................................66
Section 10.04 Effect of Indenture Supplements.......................................................66
Section 10.05 Conformity with Trust Indenture Act...................................................66
Section 10.06 Reference in Notes to Indenture Supplements...........................................66
Section 10.07 Amendments to the Pooling and Servicing Agreement.....................................67
Section 10.08 Amendments to the Master Owner Trust Agreement........................................67
Section 10.09 Notice................................................................................67
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ARTICLE XI REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER AND THE PAYING AGENT..........................68
Section 11.01 Payment of Principal and Interest.....................................................68
Section 11.02 Maintenance of Office or Agency.......................................................68
Section 11.03 Money for Note Payments to be Held in Trust...........................................68
Section 11.04 Statement as to Compliance............................................................70
Section 11.05 Legal Existence.......................................................................70
Section 11.06 Further Instruments and Acts..........................................................70
Section 11.07 Compliance with Laws..................................................................70
Section 11.08 Notice of Events of Default...........................................................70
Section 11.09 Certain Negative Covenants............................................................70
Section 11.10 No Other Business.....................................................................71
Section 11.11 No Borrowing..........................................................................71
Section 11.12 Rule 144A Information.................................................................71
Section 11.13 Performance of Obligations............................................................71
Section 11.14 Issuer May Consolidate, Etc., Only on Certain Terms...................................72
Section 11.15 Successor Substituted.................................................................74
Section 11.16 Guarantees, Loans, Advances and Other Liabilities.....................................74
Section 11.17 Capital Expenditures..................................................................75
Section 11.18 Restricted Payments...................................................................75
Section 11.19 Representations and Warranties as to the Security Interest of the Indenture Trustee
in the Collateral Certificate.........................................................75
Section 11.20 Derivative Instruments................................................................76
Section 11.21 Derivative Financial Instruments......................................................76
ARTICLE XII EARLY REDEMPTION OF NOTES............................................................................76
Section 12.01 Applicability of Article..............................................................76
Section 12.02 Notice................................................................................77
ARTICLE XIII COLLATERAL..........................................................................................77
Section 13.01 Recording, Etc........................................................................77
Section 13.02 Trust Indenture Act Requirements......................................................79
Section 13.03 Suits To Protect the Collateral.......................................................79
Section 13.04 Purchaser Protected...................................................................79
Section 13.05 Powers Exercisable by Receiver or Trustee.............................................79
Section 13.06 Determinations Relating to Collateral.................................................80
Section 13.07 Release of Collateral.................................................................80
Section 13.08 Certain Actions by Indenture Trustee..................................................81
Section 13.09 Opinions as to Collateral.............................................................81
Section 13.10 Delegation of Duties..................................................................81
ARTICLE XIV MISCELLANEOUS........................................................................................81
Section 14.01 No Petition...........................................................................81
Section 14.02 Master Owner Trust Obligations........................................................82
Section 14.03 Limitations on Liability..............................................................82
Section 14.04 Tax Treatment.........................................................................82
Section 14.05 Actions Taken by the Issuer...........................................................83
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Section 14.06 Alternate Payment Provisions..........................................................83
Section 14.07 Termination of Issuer.................................................................83
Section 14.08 Final Distribution....................................................................83
Section 14.09 Termination Distributions.............................................................84
Section 14.10 Enhancement Provider as Third-Party Beneficiary.......................................84
Section 14.11 Limitation of Confidentiality.........................................................84
Section 14.12 Subordination.........................................................................84
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EXHIBITS
EXHIBIT A [FORM OF] PAYMENT INSTRUCTIONS
EXHIBIT B [FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT C [FORM OF] INVESTMENT LETTER
EXHIBIT D-1 [FORM OF] CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE
TRUSTEE BY EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR DELIVERY
OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A TEMPORARY
GLOBAL NOTE
EXHIBIT D-2 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG WITH RESPECT TO REGISTERED NOTES
SOLD TO QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT D-3 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF NOTES,
OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
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THIS INDENTURE between NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER
TRUST, a statutory business trust organized under the laws of the State of
Delaware (the "ISSUER"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇/▇▇▇ ▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Bank of
New York, a
New
York banking corporation, in its capacity as Indenture Trustee (the "INDENTURE
Trustee"), is made and entered into as of [ ], 200_.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Notes to be issued in one or more
fully registered or bearer series or classes. All things necessary to make this
Indenture a valid agreement of the Issuer, in accordance with its terms, have
been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit and
security of (a) the Noteholders, (b) each Enhancement Provider to an Enhancement
Agreement entered into in connection with issuance of a class of Notes that
expressly states that such Enhancement Provider is entitled to the benefit of
the Collateral and (c) the Indenture Trustee, in its individual capacity (each,
a "SECURED PARTY"), a security interest in all of its right, title and interest,
whether now owned or hereafter acquired, in and to:
1. the Collateral Certificate and all amounts distributable in
respect thereof pursuant to the Pooling and Servicing
Agreement;
2. the Accounts;
3. all Eligible Investments and all investment property,
instruments, money and other property held in or through the
Deposit Account, any Supplemental Account or any Sub-Account
thereof;
4. all rights, benefits and powers under any Enhancement
Agreement relating to any class of Notes;
5. all rights of enforcement against any of the representations
and warranties made by the Master Owner Trust Beneficiary
pursuant to the Master Owner Trust Agreement;
6. all present and future claims, demands, causes of and choses
in action in respect of any of the foregoing and all
interest, principal, payments and distributions of any
nature or type on any of the foregoing;
7. all accounts, general intangibles, chattel paper,
instruments, documents, goods, money, investment property,
deposit accounts, certificates of deposit, letters of
credit, letter-of-credit rights and advices of credit
consisting of, arising from, or relating to any of the
foregoing;
8. all proceeds of any derivative contracts between the Issuer
and a counterparty, as described in any Indenture
Supplement; and
9. all proceeds of the foregoing.
The collateral described above is referred to as the "COLLATERAL." The
Security Interest in the Collateral is granted to secure the Notes (and, to the
extent specified in the applicable Indenture Supplement or Enhancement
Agreement, the obligations under any applicable Enhancement Agreements) equally
and ratably without prejudice, priority or distinction between any Note and any
other Note by reason of difference in time of issuance or otherwise, except as
otherwise expressly provided in this Indenture or in the Indenture Supplement
which establishes any class of Notes, and to secure (i) the payment of all
amounts due on such Notes (and, to the extent so specified, the obligations
under any applicable Enhancement Agreements) in accordance with their terms,
(ii) the payment of all other sums payable by the Issuer under this Indenture or
any Indenture Supplement and (iii) compliance by the Issuer with the provisions
of this Indenture or any Indenture Supplement. This Indenture is a security
agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and accepts the Collateral in trust hereunder in accordance with the
provisions hereof and agrees to perform the duties herein to the end that the
interests of the Secured Parties may be adequately and effectively protected.
Particular Notes and Enhancement Agreements will benefit from the
Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to this
Indenture and the applicable Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a series or class
thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest
and other amounts on the Notes and to make payments on Enhancement Agreements is
limited in recourse as set forth in SECTION 7.10.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 DEFINITIONS. For all purposes of this Indenture and of
any Indenture Supplement, except as otherwise expressly provided or unless the
context otherwise requires:
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1. the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as
the singular;
2. all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust
Indenture Act or in the Series Supplement, either directly
or by reference therein, have the meanings assigned to them
therein;
3. all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise
herein expressly provided, the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" with respect to any computation
required or permitted hereunder means such accounting
principles as are generally accepted in the United States of
America at the date of such computation;
4. all references in this Indenture to designated "ARTICLES,"
"SECTIONS" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture
as originally executed. The words "HEREIN," "HEREOF" and
"HEREUNDER" and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision;
5. if any term or provision contained in an Indenture
Supplement for a series of Notes shall conflict with or be
inconsistent with any term or provision in this Indenture,
the terms and provisions of such Indenture Supplement shall
control in respect of such series of Notes;
6. "INCLUDING" and words of similar import will be deemed to be
followed by "WITHOUT LIMITATION."
"ACCOUNTS" means, collectively, the Deposit Account and any
Supplemental Account, in each case including any Sub-Accounts therein.
"ACT" when used with respect to any Noteholder, is defined in SECTION
1.04(a).
"ACTION" when used with respect to any Noteholder, is defined in
SECTION 1.04(a).
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of __ _, 200_, among the Administrator, the Issuer and the Indenture Trustee.
"ADMINISTRATOR" means Navistar Financial Corporation, a Delaware
corporation, or any successor Administrator under the Administration Agreement.
"AFFILIATE" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "CONTROL" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
3
"APPLICABLE INVESTMENT CATEGORY" with respect to any series or class
of Notes, has the meaning assigned in the related Indenture Supplement.
"AUTHENTICATING AGENT" means any Person authorized by the Indenture
Trustee to authenticate Notes under SECTION 8.14.
"AUTHORIZED NEWSPAPER" has the meaning assigned in the Pooling and
Servicing Agreement.
"BEARER NOTE" means a Note in bearer form.
"BUSINESS DAY" has the meaning assigned in the Pooling and Servicing
Agreement.
"CALCULATION DAY" has the meaning assigned in the Pooling and
Servicing Agreement.
"CERTIFICATE OF TRUST" means the certificate of trust substantially in
the form of EXHIBIT B to the Master Owner Trust Agreement.
"CERTIFICATE RATING AGENCY" or "CERTIFICATE RATING AGENCIES" means,
with respect to any outstanding series of Investor Certificates, any nationally
recognized statistical rating organization then maintaining a rating on such
series at the Issuer's request.
"CERTIFICATE RATING AGENCY CONDITION" means, with respect to any
outstanding series of Investor Certificates, that each Certificate Rating Agency
shall have notified the Seller, Servicer and Master Trust Trustee in writing
that such action will not result in a reduction or withdrawal of the rating of
such series.
"CERTIFICATE REGISTRAR" means, the certificate registrar appointed
pursuant to SECTION 3.4 of the Trust Agreement, and initially JPMorgan Chase
Bank.
"CLASS" means, with respect to any Note, the class designated for such
Note in the applicable Indenture Supplement.
"COLLATERAL" has the meaning assigned in the Granting Clause.
"COLLATERAL AMOUNT" means, for any series of Notes, the amount
specified in the related Indenture Supplement.
"COLLATERAL CERTIFICATE" means the Investor Certificate issued by the
Master Trust to the Issuer and registered in the name of the Indenture Trustee
for the benefit of the Noteholders.
"COLLECTIONS ACCOUNT" has the meaning assigned in the Pooling and
Servicing Agreement.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted and created under the Securities Exchange Act, or, if
at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
4
"DEALER NOTES" has the meaning assigned in the Pooling and Servicing
Agreement.
"DEFINITIVE NOTES" means Notes of a series or class issued in fully
registered, certificate form to Noteholders or their nominees.
"DEPOSIT ACCOUNT" has the meaning assigned in SECTION 4.02(a).
"DEPOSITORY" means a U.S. Depository or a Foreign Depository, as the
case may be.
"DETERMINATION DATE" has the meaning assigned in the Pooling and
Servicing Agreement.
"DISCOUNT NOTE" means a Note that provides for an amount less than the
Stated Principal Amount (but not less than the Initial Principal Amount) thereof
to be due and payable upon the occurrence of an Early Redemption Event or other
optional or mandatory redemption or the occurrence of an Event of Default and
the acceleration of such Note, in each case before the Expected Principal
Payment Date of the applicable Note.
"DISTRIBUTION PERIOD" has the meaning assigned in the Pooling and
Servicing Agreement.
"DOLLAR" means (a) United States dollars or (b) denominated in United
States dollars.
"DUE PERIOD" has the meaning assigned in the Pooling and Servicing
Agreement.
"EARLY REDEMPTION EVENT" has the meaning assigned in SECTION 12.01.
"EARLY AMORTIZATION EVENT" has the meaning assigned in the Pooling and
Servicing Agreement.
"EFFECTIVE DATE" means the date on which this Indenture is executed
and delivered by the parties hereto.
"ELIGIBLE DEPOSIT ACCOUNT" has the meaning assigned in the Pooling and
Servicing Agreement.
"ELIGIBLE INSTITUTION" has the meaning assigned in the Pooling and
Servicing Agreement.
"ELIGIBLE INVESTMENTS" has the meaning assigned in the Pooling and
Servicing Agreement.
"ENHANCEMENT AGREEMENT" has the meaning assigned in the Pooling and
Servicing Agreement.
"ENHANCEMENT PROVIDER" has the meaning assigned in the Pooling and
Servicing Agreement.
"ENTITY" means any Person other than an individual or government
(including any agency or political subdivision thereof).
5
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"EVENT OF DEFAULT" has the meaning assigned in SECTION 7.01.
"EXCESS AVAILABLE INTEREST AMOUNTS" for any series of Notes, has the
meaning assigned to it in the related Indenture Supplement.
"EXCESS AVAILABLE PRINCIPAL AMOUNTS" for any series of Notes, has the
meaning assigned to it in the related Indenture Supplement.
"EXCESS FUNDING ACCOUNT" has the meaning assigned in the Pooling and
Servicing Agreement.
"EXCHANGE DATE" means, with respect to any class of Notes, the latest
of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in registered
form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer form,
the date of presentation of certification of non-United States beneficial
ownership (as described in SECTION 2.05); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a Permanent
Global Note is permitted by applicable law.
"EXPECTED PRINCIPAL PAYMENT DATE" means, with respect to any series or
class of Notes, the date specified in the Indenture Supplement for such series
or class of Notes as such.
"FEDERAL BANKRUPTCY CODE" means Title 11 of the United States Code, as
amended from time to time.
"FINANCED VEHICLE" has the meaning assigned in the Pooling and
Servicing Agreement.
"FOREIGN CURRENCY" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"FOREIGN DEPOSITORY" means the Person specified in the applicable
Indenture Supplement, in its capacity as depository for the accounts of any
clearing agencies located outside the United States.
"GLOBAL NOTE" means any Note issued pursuant to SECTION 2.04.
"HOLDER" when used with respect to any Note, means a Noteholder.
"INDENTURE" or "THIS INDENTURE" means this Indenture as originally
executed and as amended, supplemented, restated or otherwise modified from time
to time by one or more
6
Indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and will include the terms of particular series or classes of
Notes created as contemplated by SECTION 3.01.
"INDENTURE SUPPLEMENT" means, with respect to any series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to SECTION 10.01, together with any applicable
terms document related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to SECTION 10.01 or 10.02, and, in either
case, including all amendments thereof and supplements thereto.
"INDENTURE TRUSTEE" means the Person named as the Indenture Trustee in
the first paragraph of this Indenture until a successor Indenture Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "INDENTURE TRUSTEE" means and includes each Person who is then an
Indenture Trustee hereunder. If at any time there is more than one such Person,
"INDENTURE TRUSTEE" as used with respect to the Notes of any series or class
means the Indenture Trustee with respect to Notes of that series or class.
"INDENTURE TRUSTEE AUTHORIZED OFFICER" when used with respect to the
Indenture Trustee, means any vice president, any assistant vice president, the
treasurer, any assistant treasurer, any senior trust officer or trust officer,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION" has the meaning
assigned in SECTION 2.02.
"INDENTURE TRUSTEE CORPORATE TRUST OFFICE" means the principal office
of the Indenture Trustee at which at any particular time its corporate trust
business will be principally administered, which office at the date hereof is
located at The Bank of
New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attn: Corporate Trust ABS Unit.
INDEPENDENT: When used with respect to any specified Person, that the
Person (i) is in fact independent of the Master Trust, the Issuer, any other
obligor upon the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (ii) does not have any direct financial interest or any material
indirect financial interest in the Master Trust, the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing Persons and (iii)
is not connected with the Master Trust, the Issuer, any such other obligor, the
Seller or any Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
INDEPENDENT CERTIFICATE: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of SECTION 1.02 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer
Certificate and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" and that the signer is Independent within the
meaning thereof.
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"INITIAL MASTER OWNER TRUST AGREEMENT" means the Master Owner Trust
Agreement as of ___ __, 200_, between the Seller and the Master Owner Trust
Trustee.
"INITIAL PRINCIPAL AMOUNT" means (a) unless otherwise specified in the
applicable Indenture Supplement, with respect to classes of Dollar
Interest-Bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such class, and (b) with respect to classes of Discount
Notes and foreign currency Notes, the amount specified in the applicable
Indenture Supplement as the Initial Principal Amount thereof.
"INSURANCE PROCEEDS" has the meaning assigned in the Pooling and
Servicing Agreement.
"INTEREST-BEARING NOTE" means a Note that bears interest at a stated
or computed rate on the principal amount thereof. A Note may be both an
Interest-Bearing Note and a Discount Note.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time.
"INTERNATIONAL" means International Truck & Engine Corporation, a
Delaware corporation.
"INVESTMENT EVENT" has the meaning assigned in the Pooling and
Servicing Agreement.
"INVESTOR CERTIFICATES" has the meaning assigned in the Pooling and
Servicing Agreement.
"INVESTOR CERTIFICATEHOLDER" has the meaning assigned the Pooling and
Servicing Agreement.
"INVESTOR INTEREST" means, with respect to an Investor Certificate,
the interest in the Master Trust evidenced by such Investor Certificate.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"ISSUER" has the meaning assigned in the first paragraph of this
Indenture.
"ISSUER AUTHORIZED OFFICER" means (a) an authorized signatory of the
Master Owner Trust Trustee, (b) the chairman or vice-chairman of the board of
directors, chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice-president, the secretary, any assistant
secretary, the treasurer, or any assistant treasurer, in each case of the Master
Owner Trust Beneficiary, or any other officer or employee of the Master Owner
Trust Beneficiary who is authorized to act on behalf of the Issuer or (c) so
long as the Administration Agreement is in effect, any vice president or more
senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Issuer Authorized Officers delivered by the Administrator to the
Indenture Trustee as such list may be modified or supplemented from time to
time.
8
"ISSUER CERTIFICATE" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer, and in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new class of Notes.
Wherever this Indenture requires that an Issuer Certificate be signed also by an
accountant or other expert, such accountant or other expert (except as otherwise
expressly provided in this Indenture) may be in the employ of the Master Owner
Trust Beneficiary.
"ISSUER DOCUMENTS" means the Administration Agreement and any
amendments or supplements thereto, the Indenture and any amendments or
supplements thereto, the Pooling and Servicing Agreement and any amendments or
supplements thereto and the Master Owner Trust Agreement and any amendments or
supplements thereto.
"LEGAL FINAL MATURITY DATE" means, with respect to a series or class
of Notes, the date specified in the Indenture Supplement for such series or
class of Note as such.
"LIEN" has the meaning assigned in the Pooling and Servicing
Agreement.
"MAJORITY HOLDERS" means, with respect to any series or class of Notes
or all Outstanding Notes, the Holders of a majority in Outstanding Principal
Amount of the Outstanding Notes of that series or class or of all Outstanding
Notes, as the case may be.
"MASTER OWNER TRUST" means Navistar Financial Dealer Note Master Owner
Trust.
"MASTER OWNER TRUST AGREEMENT" means the Master Owner Trust Agreement,
dated as of [ ], 200_, between the Seller, as Master Owner Trust Beneficiary,
and Chase Manhattan Bank USA, National Association, as Master Owner Trust
Trustee, as amended, supplemented or restated from time to time.
"MASTER OWNER TRUST BENEFICIARY" has the meaning assigned in SECTION
3.1 of the Master Owner Trust Agreement.
"MASTER OWNER TRUST CERTIFICATES" means any of the certificates issued
by the Master Owner Trust pursuant to the Master Owner Trust Agreement as
amended from time to time.
"MASTER OWNER TRUST CERTIFICATEHOLDERS" means any holder of the Master
Owner Trust Certificates.
"MASTER OWNER TRUST ESTATE" has the meaning assigned in the Master
Owner Trust Agreement.
"MASTER OWNER TRUST OPINION OF COUNSEL" means a written opinion of
counsel acceptable to the Indenture Trustee, who may, without limitation, and
except as otherwise expressly provided in this Indenture, be an employee of or
of counsel to the Issuer, the Master Owner Trust Beneficiary or any of their
Affiliates.
"MASTER OWNER TRUST TRUSTEE" means Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Master Owner Trust
Trustee of the Issuer, and each of its successors and assigns.
9
"MASTER OWNER TRUST TRUSTEE AUTHORIZED OFFICER" when used with respect
to the Master Owner Trust Trustee, means any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any senior trust officer or
trust officer, or any other officer of the Master Owner Trust Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"MASTER OWNER TRUST TRUSTEE CORPORATE TRUST OFFICE" means the
principal office of the Master Owner Trust Trustee at which at any particular
time its corporate trust business will be principally administered, which office
at the date hereof is located at Chase Manhattan Bank USA, National Association,
c/o JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇/▇▇▇ ▇▇▇., ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Institutional Trust Services.
"MASTER OWNER TRUST TAX OPINION" means, with respect to any action, an
opinion of counsel to the effect that, for federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of any
Outstanding series or class of Notes that were characterized as debt at the time
of their issuance, (b) following such action the Issuer will not be treated as
an association (or publicly traded partnership) taxable as a corporation, (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any Holder of any such Notes, and (d) except as otherwise provided
in the related Indenture Supplement, where such action is the issuance of a
series or class of Notes, following such action such series or class of Notes
will be properly characterized as debt.
"MASTER TRUST" means
Navistar Financial Dealer Note Master Trust, an
Illinois common law trust.
"MASTER TRUST TRUSTEE" has the meaning assigned in the Pooling and
Servicing Agreement.
"MASTER TRUST TAX OPINION" shall mean "Tax Opinion" as defined in the
Pooling and Servicing Agreement.
"MONTHLY NOTEHOLDERS' STATEMENT" means a report substantially in the
form of EXHIBIT B, as the same may be supplemented as set forth in the related
Indenture Supplement.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"NAVISTAR FINANCIAL" means Navistar Financial Corporation, a Delaware
corporation, and its successors and permitted assigns.
"NAVISTAR FINANCIAL SECURITIES CORPORATION" means Navistar Financial
Securities Corporation, a Delaware corporation, and its successors and permitted
assigns.
"NFSC" has the meaning assigned in the Pooling and Servicing
Agreement.
"NFSC CERTIFICATE" has the meaning assigned in the Pooling and
Servicing Agreement.
10
"NOMINAL LIQUIDATION AMOUNT" means, with respect to any Outstanding
class of Notes, an amount determined in accordance with the applicable Indenture
Supplement.
"NON-PERFORMING" with respect to a Enhancement Agreement, means not
Performing.
"NOTE" or "NOTES" means any note or notes of any series or class
authenticated and delivered from time to time under this Indenture.
"NOTE OWNER" means the beneficial owner of an interest in a Global
Note.
"NOTE RATING AGENCY" or "NOTE RATING AGENCIES" means, with respect to
any Outstanding series of Notes, any nationally recognized statistical rating
organization then maintaining a rating on such series at the Seller's request.
"NOTE RATING AGENCY CONDITION" means, with respect to any Outstanding
series of Notes, that each Note Rating Agency shall have notified the Seller,
Servicer and Master Owner Trust Trustee in writing that such action will not
result in a reduction or withdrawal of the rating of such series.
"NOTE RECORD DATE" means, if the Notes are in book-entry form and with
respect to payment of the Notes, the day before the related Transfer Date. If
the Notes are in definitive form, the record date for a Transfer Date will be
the last day of the calendar month ending prior to that Transfer Date.
"NOTE REGISTER" has the meaning assigned in SECTION 3.05.
"NOTE REGISTRAR" means the Person who keeps the Note Register
specified in SECTION 3.05.
"NOTEHOLDER" means a Person in whose name a Note is registered in the
Note Register or the bearer of any Bearer Note (including a Global Note in
bearer form), as the case may be.
"NOTEHOLDER ALLOCATED DEALER NOTE LOSSES" has the meaning assigned it
in the Series Supplement.
"NOTEHOLDER AVAILABLE INTEREST AMOUNTS" has the meaning assigned it in
the Series Supplement.
"NOTEHOLDER AVAILABLE PRINCIPAL AMOUNTS" has the meaning assigned it
in the Series Supplement.
"OFFICER'S CERTIFICATE" means a certificate signed by the Master Owner
Trust Beneficiary or the Master Owner Trust Trustee and delivered to the
Indenture Trustee. Wherever this Indenture requires that an Officer's
Certificate be signed also by an accountant or other expert, such accountant or
other expert (except as otherwise expressly provided in this Indenture) may be
in the employ of the Master Owner Trust Beneficiary.
"OTHER ASSETS" has the meaning assigned in SECTION 14.12.
11
"OUTSTANDING" when used with respect to a Note or with respect to
Notes of any series or class means, as of the date of determination, all such
Notes theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to SECTION 3.09;
(b) any Notes which are deemed to have been paid in full pursuant
to SECTION 5.04; and
(c) any such Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture, or which
will have been paid pursuant to the terms of SECTION 3.06 (except with respect
to any such Note as to which proof satisfactory to the Indenture Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations, reallocations
or payments to be made, unless the context clearly requires otherwise,
references to "NOTES" will be deemed to be references to "OUTSTANDING NOTES." In
determining whether the Holders of the requisite principal amount of such
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, and for purposes of SECTION 9.04, Notes
beneficially owned by the Issuer or NFSC or any Affiliate of the Issuer or NFSC
will be disregarded and deemed not to be Outstanding. In determining whether the
Indenture Trustee will be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which an
Indenture Trustee Authorized Officer knows to be owned by the Issuer or NFSC or
any Affiliate of the Issuer or NFSC will be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
creates to the satisfaction of the Indenture Trustee the pledgee's right to act
as owner with respect to such Notes and that the pledgee is not the Issuer, NFSC
or any other obligor upon the Notes or any Affiliate of the Issuer, NFSC or such
other obligor.
"OUTSTANDING PRINCIPAL AMOUNT" means at any time, (a) with respect to
any series or class of non-Discount Notes, the aggregate Initial Principal
Amount of the Outstanding Notes of such series or class at such time, less the
amount of any withdrawals from the principal funding account or principal
funding Sub-Account for such class of Notes for payment of principal to the
Holders of such series or class or to the applicable Enhancement Provider
pursuant to the related Indenture Supplement, and with respect to any series or
class of Discount Notes, an amount of the Outstanding Notes of such series or
class calculated by reference to the applicable formula set forth in the
applicable Indenture Supplement, taking into account the amount and timing of
payments of principal made to the Holders of such series or class or to the
applicable Enhancement Provider and accretions of principal, each pursuant to
the related Indenture Supplement.
"OVERCOLLATERALIZATION AMOUNT" has, with respect to any series of
Notes, the meaning specified in the related Indenture Supplement.
12
"PAYING AGENT" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer, which shall
initially be the Indenture Trustee.
"PAYMENT DATE" has the meaning assigned, with respect to any series of
Notes, in such series' related Indenture Supplement.
"PAYMENT INSTRUCTION" means an instruction substantially in the form
of EXHIBIT A, or such other form as the Issuer may determine, as the same may be
supplemented as set forth in the related Indenture Supplement.
"PERFORMING" means, with respect to any Enhancement Agreement, no
payment default or repudiation of performance by a Enhancement Provider has
occurred, and such Enhancement Agreement has not been terminated.
"PERMANENT GLOBAL NOTE" has the meaning assigned in SECTION 2.05.
"PERSON" has the meaning assigned in the Pooling and Servicing
Agreement.
"PLACE OF PAYMENT" means, with respect to any class of Notes, the city
or political subdivision so designated with respect to such class of Notes in
accordance with the provisions of SECTION 3.01.
"POOLING AND SERVICING AGREEMENT" means the Amended and Restated
Pooling and Servicing Agreement, dated as of June 8, 1995, between Navistar
Financial Securities Corporation, as Seller, Navistar Financial Corporation, as
Servicer, JPMorgan Chase Bank, as 1990 trust trustee, and The Bank of
New York,
as Master Trust Trustee, as amended, restated and supplemented from time to
time.
"PREDECESSOR NOTES" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under SECTION 3.06 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"PRINCIPAL COLLECTIONS" has the meaning assigned in the Pooling and
Servicing Agreement.
"PURCHASE AGREEMENT" has the meaning assigned in the Pooling and
Servicing Agreement.
"RECEIPTS" has the meaning assigned in SECTION 4.01.
"REGISTERED NOTE" means a Note issued in registered form.
"REGISTERED NOTEHOLDER" means a holder of a Registered Note.
"REQUIRED SELLER'S INVESTED AMOUNT" means, for any series of Notes the
amount specified as such in the Indenture Supplement for that series.
13
"SECURED PARTY" has the meaning assigned in the Granting Clause.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended from time to time.
"SECURITYHOLDERS" means the Master Owner Trust Certificateholders and
the Noteholders.
"SECURITY INTEREST" means the security interest granted pursuant to
the Granting Clause.
"SELLER" means NFSC.
"SELLER'S CERTIFICATES" means the NFSC Certificate and any
Supplemental Certificate.
"SENIOR CLASS" with respect to a class of Notes of any series, has the
meaning specified in the related Indenture Supplement.
"SERIES" means, with respect to any Note, the series specified in the
applicable Indenture Supplement.
"SERIES AVAILABLE INTEREST AMOUNTS" for any series of Notes, has the
meaning assigned to it in the related Indenture Supplement.
"SERIES AVAILABLE INTEREST AMOUNTS SHORTFALL" for any series of Notes,
has the meaning assigned to it in the related Indenture Supplement.
"SERIES AVAILABLE PRINCIPAL AMOUNTS" for any series of Notes, has the
meaning assigned to it in the related Indenture Supplement.
"SERIES AVAILABLE PRINCIPAL AMOUNTS SHORTFALL" for any series of
Notes, has the meaning assigned to it in the related Indenture Supplement.
"SERIES SUPPLEMENT" means the supplement to the Pooling and Servicing
Agreement that provided for the issuance of the Collateral Certificate.
"SERVICER" has the meaning assigned in the Pooling and Servicing
Agreement.
"SERVICER TERMINATION EVENT" has the meaning specified in the Pooling
and Servicing Agreement.
"SERVICING FEE" has the meaning specified in the Pooling and Servicing
Agreement.
"SHARED PRINCIPAL COLLECTIONS" has the meaning assigned in SECTION
5.02.
"STANDARD & POOR's" means Standard & Poor's Ratings Services or any
successor thereto.
"STATED PRINCIPAL AMOUNT" with respect to any Note, has the meaning
specified in the related Indenture Supplement.
14
"STATUTORY TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. CODE Section 3801 et seq., as the same may be amended from time to
time.
"SUB-ACCOUNT" means each portion of an Account designated as such
pursuant to this Indenture or the related Indenture Supplement.
"SUBORDINATED CLASS" with respect to a class of Notes of any series,
has the meaning specified in the related Indenture Supplement.
"SUBORDINATED NOTES" means Notes of a subordinated class of a series.
"SUPPLEMENTAL ACCOUNTS" means the trust account or accounts designated
as such and established pursuant to SECTION 4.02(a).
"SUPPLEMENTAL CERTIFICATE" has the meaning assigned in the Pooling and
Servicing Agreement.
"TAX OPINION" means a Master Owner Trust Tax Opinion, Master Trust Tax
Opinion, or both, as applicable.
"TEMPORARY GLOBAL NOTE" has the meaning assigned in SECTION 2.05.
"TRANSFER DATE" has the meaning assigned in the Pooling and Servicing
Agreement.
"TREASURY REGULATIONS" means the regulations, including proposed or
temporary regulations, promulgated under the Internal Revenue Code. References
herein to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture was executed except as provided in SECTION 10.05.
"UCC" has the meaning assigned in the Pooling and Servicing Agreement.
"U.S. DEPOSITORY" means, unless otherwise specified by the Issuer
pursuant to either SECTION 2.04, 2.06, or 3.01, with respect to Notes of any
class issuable or issued as Global Notes within the United States, The
Depository Trust Company,
New York,
New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act, or other
applicable statute regulation.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer will furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
15
Indenture relating to the proposed action have been complied with, (ii) a Master
Owner Trust Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, and (iii) if
required by the Trust Indenture Act an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of Section
1.02, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. The Indenture Trustee may rely, as to
authorization by the Issuer of any class of Notes, the form and terms thereof
and the legality, validity, binding effect and enforceability thereof, upon the
Master Owner Trust Opinion of Counsel and the other documents delivered pursuant
to Section 3.10 and this Section, as applicable, in connection with the first
authentication of Notes of such class. Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture
(except for the written statement required by SECTION 11.04) will include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that such individual has made such
examination or investigation as is necessary to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
(b) (i)Prior to the deposit with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 1.02(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 60 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in CLAUSE
(b)(i) above, the Issuer shall also deliver to the Indenture Trustee
an Independent Certificate as to the same matters, if the fair value
to the Issuer of the securities to be so deposited and of all other
such deposits made on the basis of any such withdrawal or release
since the commencement of the then current fiscal year of the Issuer,
as set forth in the certificates delivered pursuant to clause (b)(i)
above and this clause (b)(ii), is 10% or more of the Outstanding
Principal Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited if the fair
value
16
thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Principal Amount of the Notes.
(c) Notwithstanding SECTION 2.9 or any other provision of this
SECTION 1.02, the Issuer may (A) make cash payments out of the Accounts as and
to the extent permitted or required by the Issuer Documents and (B) take any
other action not inconsistent with the TIA.
Section 1.03 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In
any case where several matters are required to be certified by, or covered by an
opinion of, one or more specified Persons, one such Person may certify or give
an opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Any certificate or opinion of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless the Issuer knows that the
certificate or opinion or representations are erroneous. Any such certificate or
opinion of, or representation by, counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, the
Issuer stating that the information with respect to such factual matters is in
the possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
are erroneous. Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, "ACTION") provided by this
Indenture to be given or taken by Noteholders of any series or class may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action will
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for any
purpose of this Indenture and (subject to SECTION 8.01) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit will
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or
17
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the
Note Register.
(ii) The ownership of Bearer Notes or coupons will be
proved by the production of such Bearer Notes or coupons or by a
certificate, satisfactory to the Issuer, executed by any bank, trust
company or recognized securities dealer, wherever situated,
satisfactory to the Issuer. Each such certificate will be dated and
will state that on the date thereof a Bearer Note or coupon bearing a
specified serial number was deposited with or exhibited to such bank,
trust company or recognized securities dealer by the Person named in
such certificate. Any such certificate may be issued in respect of one
or more Bearer Notes or coupons specified therein. The holding by the
Person named in any such certificate of any Bearer Note specified
therein will be presumed to continue for a period of one year from the
date of such certificate unless at the time of any determination of
such holding (A) another certificate bearing a later date issued in
respect of the same Bearer Note or coupon produced, (B) the Bearer
Note or coupon specified in such certificate is produced by some other
Person or (C) the Bearer Note or coupon specified in such certificate
has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any action, the
Issuer may, at its option, by an Officer's Certificate, fix in advance a record
date for the determination of Holders entitled to give such action, but the
Issuer will have no obligation to do so. If the Issuer does not so fix a record
date, such record date will be the later of thirty (30) days before the first
solicitation of such action or the date of the most recent list of Noteholders
furnished to the Indenture Trustee pursuant to SECTION 9.01 before such
solicitation. Such action may be given before or after the record date, but only
the Holders of record at the close of business on the record date will be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Notes Outstanding have authorized or agreed or consented to such
action, and for that purpose the Notes Outstanding will be computed as of the
record date; provided that no such authorization, agreement or consent by the
Holders on the record date will be deemed effective unless it will become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note will bind the Holder
of every Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon whether or not notation of
such action is made upon such Note.
Section 1.05 NOTICES, ETC.All requests, demands, directions,
consents, waivers, notices, authorizations and communications provided or
permitted under any Issuer Document to be made upon, given or furnished to or
filed with the Seller, the Servicer, the Indenture Trustee, the Issuer, the
Master Owner Trust Trustee or the Note Rating Agencies shall be in writing,
personally delivered, sent by facsimile with a copy to follow via first class
mail, overnight mail
18
or mailed by certified mail-return receipt requested, and shall be deemed to
have been duly given upon receipt:
1. in the case of the Seller, at the following address:
Navistar Financial Securities Corporation
c/o Corporation Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Navistar Financial Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
2. in the case of the Servicer, at the following address:
Navistar Financial Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
3. in the case of the Indenture Trustee, at the Indenture Trustee
Corporate Trust Office,
4. in the case of the Issuer, to the Master Owner Trust Trustee
Corporate Trust Office, with copies to:
Navistar Financial Securities Corporation
c/o Corporation Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Navistar Financial Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
19
5. in the case of the Master Owner Trust Trustee, at the Master Owner
Trust Trustee Corporate Trust Office, with a copy to the
Administrator at:
Navistar Financial Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
6. in the case of ▇▇▇▇▇'▇ Investors Service, Inc., to:
▇▇▇▇▇'▇ Investors Service, Inc.
ABS Monitoring Department
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
7. in the case of Standard & Poor's Ratings Services, to:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset Backed Surveillance Department
or at such other address as shall be designated by such Person in a written
notice to the other parties to the Issuer Documents to which they are party.
Section 1.06 NOTICES TO NOTEHOLDERS; WAIVER TO NOTEHOLDERS
(a) Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice to Registered Noteholders of any event, such
notice will be sufficiently given (unless otherwise herein, in such Indenture
Supplement or in such Registered Note expressly provided) if in writing and
mailed, first-class postage prepaid, sent by facsimile, sent by electronic
transmission or personally delivered to each Holder of Registered Note affected
by such event, at such Noteholder's address as it appears in the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Registered
Noteholders is given by mail, facsimile, electronic transmission or delivery
neither the failure to mail, send by facsimile, electronic transmission or
deliver such notice, nor any defect in any notice so mailed, to any particular
Noteholders will affect the sufficiency of such notice with respect to other
Noteholders and any notice that is mailed, sent by facsimile, electronic
transmission or delivered in the manner herein provided shall conclusively have
been presumed to have been duly given. Where this Indenture, any Indenture
Supplement or any Registered Note provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver will be the equivalent of such
notice. Waivers of notice by Registered Noteholders will be filed with the
Indenture Trustee, but such filing will not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
20
(b) In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it will be impractical to
mail notice of any event to any Holder of a Registered Note when such notice is
required to be given pursuant to any provision of this Indenture, then any
method of notification as will be satisfactory to the Indenture Trustee and the
Issuer will be deemed to be a sufficient giving of such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any class with respect to which any Bearer Notes are
Outstanding, any notice required or permitted to be given to Holders of such
Bearer Notes will be published in an Authorized Newspaper within the time period
prescribed in this Indenture or the applicable Indenture Supplement.
(d) With respect to any class of Notes, the applicable Indenture
Supplement may specify different or additional means of giving notice to the
Holders of the Notes of such class.
(e) Where this Indenture provides for notice to any Note Rating
Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance have a
material adverse effect on the interests of the Noteholders.
Section 1.07 CONFLICT WITH TRUST INDENTURE ACT. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "INCORPORATED PROVISION")
included in this Indenture by operation of, Sections 3.10 to 3.18, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and will not affect the construction hereof.
Section 1.09 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not. All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
Section 1.10 SEPARABILITY. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 1.11 BENEFITS OF INDENTURE. Nothing in this Indenture or in
any Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, any Enhancement Providers (to the extent specified in the
applicable Enhancement Agreement) and the Holders of Notes (or such of them as
may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.
21
Section 1.12 GOVERNING LAW. THIS INDENTURE WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 1.13 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 1.14 INDENTURE REFERRED TO IN THE MASTER OWNER TRUST
AGREEMENT. This is the Indenture referred to in the Master Owner Trust
Agreement.
ARTICLE II
NOTE FORMS
Section 2.01 FORMS GENERALLY. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with applicable laws
or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the Issuer's
execution of such Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note. The terms of any Notes, set forth in an exhibit to the related Indenture
Supplement are part of the terms of the Indenture, as applicable to the
respective series.
The Definitive Notes will be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) or may be produced in any other manner, all as determined by
the Issuer, as evidenced by the Issuer's execution of such Notes, subject, with
respect to the Notes of any series or class, to the rules of any securities
exchange on which such Notes are listed.
Section 2.02 FORMS OF NOTES. Each Note will be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before the
delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the
Indenture Trustee the Issuer Certificate by or pursuant to which such form of
Note has been approved, which Issuer Certificate will have attached thereto a
true and correct copy of the form of Note which has been approved thereby or, if
an Issuer Certificate authorizes a specific officer or officers of the Master
Owner Trust Beneficiary to approve a form of Note, a certificate of such officer
or officers approving the form of Note attached thereto. Any form of Note
approved by or pursuant to an Issuer Certificate must be acceptable as to form
to the Indenture Trustee, such acceptance to be evidenced by the Indenture
Trustee's authentication of Notes in that form or a certificate signed by an
Indenture Trustee Authorized Officer and delivered to the Issuer (the "INDENTURE
TRUSTEE'S CERTIFICATE OF AUTHENTICATION").
22
Section 2.03 FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series or class designated therein
referred to in the within-mentioned Indenture.
THE BANK OF
NEW YORK, as Indenture
Trustee,
By:
-------------------------------------
Indenture Trustee Authorized Officer
Dated:
Section 2.04 NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Issuer establishes pursuant to SECTIONS 2.02 and 3.01
that the Notes of a particular series or class are to be issued in whole or in
part in the form of one or more Global Notes, then the Issuer will execute and
the Indenture Trustee or its agent will, in accordance with SECTION 3.03 and the
Issuer Certificate delivered to the Indenture Trustee or its agent thereunder,
authenticate and deliver, such Global Note or Notes, which, unless otherwise
provided in the applicable Indenture Supplement (i) will represent, and will be
denominated in an amount equal to the aggregate Stated Principal Amount (or in
the case of Discount Notes, the aggregate Stated Principal Amount at the
Expected Principal Payment Date of such Notes) of the Outstanding Notes of such
series or class to be represented by such Global Note or Notes, or such portion
thereof as the Issuer will specify in an Issuer Certificate, (ii) in the case of
Registered Notes, will be registered in the name of the Depository for such
Global Note or Notes or its nominee, (iii) will be delivered by the Indenture
Trustee or its agent to the Depository or pursuant to the Depository's
instruction, (iv) if applicable, will bear a legend substantially to the
following effect: "Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein" and (v) may bear such other legend
as the Issuer, upon advice of counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this SECTION 2.04 or
of SECTION 3.05, and subject to the provisions of PARAGRAPH (c) below, unless
the terms of a Global Note or the applicable Indenture Supplement expressly
permit such Global Note to be exchanged in whole or in part for individual
Notes, a Global Note may be transferred, in whole but not in part and in the
manner provided in SECTION 3.05, only to a nominee of the Depository for such
Global Note, or
23
to the Depository, or a successor Depository for such Global Note selected or
approved by the Issuer, or to a nominee of such successor Depository.
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable Indenture Supplement, or with respect to
Notes issued outside the United States, if specified in the applicable Indenture
Supplement:
(i) If at any time the Depository for a Global Note
notifies the Issuer that it is unwilling or unable to continue as
Depository for such Global Note or if at any time the Depository for
the Notes for such series or class ceases to be a clearing agency
registered under the Securities Exchange Act, or other applicable
statute or regulation, the Issuer will appoint a successor Depository
with respect to such Global Note. If a successor Depository for such
Global Note is not appointed by the Issuer within ninety (90) days
after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer will execute, and the Indenture Trustee or
its agent, upon receipt of an Issuer Certificate requesting the
authentication and delivery of individual Notes of such series or
class in exchange for such Global Note, will authenticate and deliver,
individual Notes of such series or class of like tenor and terms in an
aggregate Stated Principal Amount equal to the Stated Principal Amount
of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole
discretion determine that the Notes of any series or class or portion
thereof issued or issuable in the form of one or more Global Notes
will no longer be represented by such Global Note or Notes. In such
event the Issuer will execute, and the Indenture Trustee, upon receipt
of an Issuer request for the authentication and delivery of individual
Notes of such series or class in exchange in whole or in part for such
Global Note, will authenticate and deliver individual Notes of such
series or class of like tenor and terms in definitive form in an
aggregate Stated Principal Amount equal to the Stated Principal Amount
of such Global Note or Notes representing such series or class or
portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to SECTIONS 2.02
and 3.01 with respect to Notes issued or issuable in the form of a
Global Note, the Depository for such Global Note may surrender such
Global Note in exchange in whole or in part for individual Notes of
such series or class of like tenor and terms in definitive form on
such terms as are acceptable to the Issuer and such Depository.
Thereupon the Issuer will execute, and the Indenture Trustee or its
agent will authenticate and deliver, without service charge, (A) to
each Person specified by such Depository a new Note or Notes of the
same series or class of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate Stated Principal
Amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and (B) to such Depository a new Global Note of
like tenor and terms and in an authorized denomination equal to the
difference, if any, between the Stated Principal Amount of the
surrendered
24
Global Note and the aggregate Stated Principal Amount of Notes
delivered to the Holders thereof.
(iv) If any Event of Default has occurred with respect to
such Global Notes, and Holders of Notes evidencing not less than 50%
of the unpaid Outstanding Principal Amount of the Global Notes of that
class advise the Indenture Trustee and the Depository that a Global
Note is no longer in the best interest of the Noteholders, the Holders
of Global Notes of that class may exchange such Notes for individual
Notes.
(v) In any exchange provided for in any of the preceding
three paragraphs, the Issuer will execute and the Indenture Trustee or
its agent will authenticate and deliver individual Notes in definitive
registered form in authorized denominations. Upon the exchange of the
entire Stated Principal Amount of a Global Note for individual Notes,
such Global Note will be canceled by the Indenture Trustee or its
agent. Except as provided in the preceding paragraphs, Notes issued in
exchange for a Global Note pursuant to this Section will be registered
in such names and in such authorized denominations as the Depository
for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, will instruct the Indenture
Trustee or the Note Registrar. The Indenture Trustee or the Note
Registrar will deliver such Notes to the Persons in whose names such
Notes are so registered.
Section 2.05 TEMPORARY GLOBAL NOTES AND PERMANENT GLOBAL NOTES.
(a) If specified in the applicable Indenture Supplement for any
series or class, all or any portion of a Global Note may initially be issued in
the form of a single temporary global Bearer Note or global Registered Note (the
"TEMPORARY GLOBAL NOTE"), without interest coupons, in the denomination of the
entire aggregate principal amount of such series or class and substantially in
the form set forth in the exhibit with respect thereto attached to the
applicable Indenture Supplement. The Temporary Global Note will be authenticated
by the Indenture Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Notes in definitive form. The Temporary
Global Note may be exchanged as described below or in the applicable Indenture
Supplement for permanent global Bearer Notes or Registered Notes (the "PERMANENT
GLOBAL NOTES").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes will be made as provided in this
clause. The Master Owner Trust Beneficiary will, upon its determination of the
date of completion of the distribution of the Notes of such series or class, so
advise the Indenture Trustee, the Issuer, the Foreign Depository, and each
foreign clearing agency forthwith. Without unnecessary delay, but in any event
not prior to the Exchange Date, the Issuer will execute and deliver to the
Indenture Trustee at its London office or its designated agent outside the
United States Permanent Global Notes in bearer or registered form (as specified
in the applicable Indenture Supplement) in an aggregate principal amount equal
to the entire aggregate principal amount of such series or class. Bearer Notes
so issued and delivered may have coupons attached. The Temporary Global Note may
be exchanged for an equal aggregate
25
principal amount of Permanent Global Notes only on or after the Exchange Date. A
United States Person may exchange the portion of the Temporary Global Note
beneficially owned by it only for an equal aggregate principal amount of
Permanent Global Notes in registered form bearing the applicable legend set
forth in the form of Registered Note attached to the applicable Indenture
Supplement and having a minimum denomination of $500,000, which may be in
temporary form if the Issuer so elects. The Issuer may waive the $500,000
minimum denomination requirement if it so elects. Upon any demand for exchange
for Permanent Global Notes in accordance with this clause, the Issuer will cause
the Indenture Trustee to authenticate and deliver the Permanent Global Notes to
the Holder (x) outside the United States, in the case of Bearer Notes and (y)
according to the instructions of the Holder, in the case of Registered Notes,
but in either case only upon presentation to the Indenture Trustee of a written
statement substantially in the form of EXHIBIT D-1 (or such other form as the
Issuer may determine) with respect to the Temporary Global Note, or portion
thereof being exchanged, signed by a foreign clearing agency and dated on the
Exchange Date or a subsequent date, to the effect that it has received in
writing or by tested telex a certification substantially in the form of (i) in
the case of beneficial ownership of the Temporary Global Note, or a portion
thereof being exchanged, by a United States institutional investor pursuant to
this clause, the certificate in the form of EXHIBIT D-2 (or such other form as
the Issuer may determine) signed by the Master Owner Trust Beneficiary which
sold the relevant Notes or (ii) in all other cases, the certificate in the form
of EXHIBIT D-3 (or such other form as the Issuer may determine), the certificate
referred to in this clause (ii) being dated on the earlier of the first payment
of interest in respect of such Note and the date of the delivery of such Note in
definitive form. Upon receipt of such certification, the Indenture Trustee will
cause the Temporary Global Note to be endorsed in accordance with CLAUSE (d)
below. Any exchange as provided in this Section will be made free of charge to
the Holders and the beneficial owners of the Temporary Global Note and to the
beneficial owners of the Permanent Global Note issued in exchange, except that a
person receiving the Permanent Global Note must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not
receive such Permanent Global Note in person at the offices of a foreign
clearing agency.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency of any written statement referred to above may be relied upon by the
Issuer and the Indenture Trustee as conclusive evidence that a corresponding
certification or certifications has or have been delivered to such foreign
clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
will be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Permanent Global Note or Notes. Until so exchanged in full, such
Temporary Global Note will in all respects be entitled to the same benefits
under this Indenture as Permanent Global Notes authenticated and delivered
hereunder except that the beneficial owners of such Temporary Global Note will
not be entitled to receive payments of interests on the Notes until they have
exchanged their beneficial interests in such Temporary Global Note for Permanent
Global Notes.
Section 2.06 BENEFICIAL OWNERSHIP OF GLOBAL NOTES. Until Definitive
Notes have been issued to the applicable Noteholders pursuant to SECTION 2.04 or
as otherwise specified in any
26
applicable Indenture Supplement, (a) the Issuer and the Indenture Trustee may
deal with the applicable clearing agency and the clearing agency's participants
for all purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and (b) the rights of the
respective Note Owners will be exercised only through the applicable clearing
agency and the clearing agency's participants and will be limited to those
established by law and agreements between such Note Owners and the clearing
agency and/or the clearing agency's participants. Pursuant to the operating
rules of the applicable clearing agency, unless and until Notes in definitive
form are issued pursuant to SECTION 2.04, the clearing agency will make
book-entry transfers among the clearing agency's participants and receive and
transmit distributions of principal and interest on the related Notes to such
clearing agency's participants. For purposes of any provision of this Indenture
requiring or permitting actions with the consent of, or at the direction of,
Noteholders evidencing a specified percentage of the aggregate unpaid principal
amount of Outstanding Notes, such direction or consent may be given by Note
Owners (acting through the clearing agency and the clearing agency's
participants) owning interests in Notes evidencing the requisite percentage of
principal amount of Notes.
Section 2.07 NOTICES TO DEPOSITORY. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
will have been issued to the related Note Owners, the Indenture Trustee will
give all such notices and communications to the applicable Depository.
ARTICLE III
THE NOTES
Section 3.01 GENERAL TITLE; GENERAL LIMITATIONS; ISSUABLE IN SERIES;
TERMS OF A SERIES OR CLASS.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
(b) The Notes may be issued in one or more series or classes up
to an aggregate Stated Principal Amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each series or class under this Indenture
will in all respects be equally and ratably entitled to the benefits hereof with
respect to such series or class without preference, priority or distinction on
account of the actual time of the authentication and delivery or the Expected
Principal Payment Date or Legal Final Maturity Date of the Notes of such series
or class, except as specified in the applicable Indenture Supplement for such
series or class.
(c) Each Note issued must be part of a series or class of Notes
for purposes of allocations pursuant to ARTICLE V. A series of Notes is created
pursuant to an Indenture Supplement. A class of Notes of that series is created
pursuant to such Indenture Supplement.
(d) Each series of Notes may, but need not be, subdivided into
multiple classes. Unless the context otherwise requires, references herein to a
class of Notes include a series of Notes that has not been subdivided into
multiple classes. Notes belonging to a class in any series may be entitled to
specified payment priorities over other classes of Notes in that series.
27
(e) There shall also be established in or pursuant to an
Indenture Supplement or pursuant to an Issuer Certificate or terms document
related to the applicable Indenture Supplement before the initial issuance of
Notes of each such series or class, provision for:
(i) the series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular class of
Notes;
(iv) the currency or currencies in which such Notes will
be denominated and in which payments of principal of, and interest on,
such Notes will or may be payable;
(v) if the principal of or interest, if any, on such
Notes are to be payable, at the election of the Issuer or a Holder
thereof, in a currency or currencies other than that in which the
Notes are stated to be payable, the period or periods within which,
and the terms and conditions upon which, such election may be made;
(vi) if the amount of payments of principal of or
interest, if any, on such Notes may be determined with reference to an
index based on (A) a currency or currencies other than that in which
the Notes are stated to be payable, (B) changes in the prices of one
or more other securities or groups or indexes of securities or (C)
changes in the prices of one or more commodities or groups or indexes
of commodities, or any combination of the foregoing, the manner in
which such amounts will be determined;
(vii) the price or prices at which the Notes will be
issued;
(viii) the times at which such Notes may, pursuant to any
optional or mandatory redemption provisions, be redeemed, and the
other terms and provisions of any such redemption provisions;
(ix) the rate per annum at which such Notes will bear
interest, if any, or the formula or index on which such rate will be
determined, including all relevant definitions, and the date from
which interest will accrue;
(x) each Transfer Date, Payment Date, Expected Principal
Payment Date and Legal Final Maturity Date for such Notes;
(xi) the Initial Principal Amount of such Notes, and the
means for calculating the Outstanding Principal Amount of such Notes;
(xii) whether or not application will be made to list such
Notes on any securities exchange;
28
(xiii) any Events of Default or Early Redemption Events
with respect to such Notes, if not set forth herein and any additions,
deletions or other changes to the Events of Default or Early
Redemption Events set forth herein that will be applicable to such
Notes (including a provision making any Event of Default or Early
Redemption Event set forth herein inapplicable to the Notes of that
series or class);
(xiv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location of
the office of the Indenture Trustee with power to act on behalf of the
Indenture Trustee and subject to its direction in the authentication
and delivery of such Notes in connection with such transactions as
will be specified in the provisions of this Indenture or in or
pursuant to the applicable Indenture Supplement creating such series
or class;
(xv) if such Notes will be issued in whole or in part in
the form of a Global Note or Global Notes, the terms and conditions,
if any, upon which such Global Note or Global Notes may be exchanged
in whole or in part for other individual Notes; and the Depository for
such Global Note or Global Notes (if other than the Depository
specified in SECTION 1.01);
(xvi) the subordination of such Notes to any other
indebtedness of the Issuer, including without limitation, the Notes of
any other series or class;
(xvii) if such Notes are to have the benefit of any
Enhancement Agreement, the terms and provisions of such Enhancement
Agreement;
(xviii) the Note Record Date for any Payment Date of such
Notes, if different from (a) the last day of the calendar month ending
prior to that Transfer Date, if such Notes are in definitive form, or
(b) the day before the related Transfer Date, if such Notes are in
book-entry form;
(xix) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal
amortization amount, if any, scheduled for such Notes;
(xx) the Overcollateralization Amount, if any, for such
series or class of Notes; and
(xxi) any other terms of such Notes;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such series or class.
(f) The form of the Notes of each series or class will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such series or class. The Notes of each series or
class will be distinguished from the Notes of each other series
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or class in such manner, reasonably satisfactory to the Indenture Trustee, as
the Issuer may determine.
(g) Unless otherwise provided with respect to Notes of a
particular series or class, the Notes of any particular series or class will be
issued in registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any series
or class issued under this Indenture may be determined pursuant to this Section
by providing in the applicable Indenture Supplement for the method by which such
terms or provisions will be determined.
(i) The Notes of each series or class may have such Expected
Principal Payment Date or Dates or Legal Final Maturity Date or Dates, be
issuable at such premium over or discount from their face value, bear interest
at such rate or rates (which may be fixed or floating), from such date or dates,
payable in such installments and on such dates and at such place or places to
the Holders of Notes registered as such on such Note Record Dates, or may bear
no interest, and have such terms, all as will be provided for in or pursuant to
the applicable Indenture Supplement.
Section 3.02 DENOMINATIONS. The Notes of each class will be issuable
in such denominations and currency as will be provided in the provisions of this
Indenture or in or pursuant to the applicable Indenture Supplement. In the
absence of any such provisions with respect to the Registered Notes of any
class, the Registered Notes of that class will be issued in denominations of
$1,000 and multiples thereof. In the absence of any such provisions with respect
to the Bearer Notes of any class, the Bearer Notes of that class will be issued
in denominations of 1,000, 5,000, 50,000 and 100,000 units of the applicable
currency.
Section 3.03 EXECUTION, AUTHENTICATION AND DELIVERY AND DATING.
(a) The Notes will be executed on behalf of the Issuer by an
Issuer Authorized Officer. The signature of any officer of the Master Owner
Trust Beneficiary or the Master Owner Trust Trustee on the Notes may be manual
or facsimile.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer will bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices before the authentication and delivery of such Notes or did not
hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Indenture Trustee for authentication; and the Indenture Trustee will,
upon request by an Officer's Certificate, authenticate and deliver such Notes as
in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Indenture
Trustee will be entitled to receive, in addition to any Officer's Certificate
and Master Owner Trust Opinion of Counsel required to be furnished to the
Indenture Trustee pursuant to SECTION 1.02, the Issuer Certificate and any other
opinion or certificate relating to the issuance of the series or class of Notes
required to be furnished pursuant to SECTION 2.02 or SECTION 3.10.
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(e) The Indenture Trustee will not be required to authenticate
such Notes if the issue thereof will adversely affect the Indenture Trustee's
own rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any series
or class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual signature of an authorized
signatory, and such certificate upon any Note will be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 3.04 TEMPORARY NOTES.
(a) Pending the preparation of Definitive Notes of any class, the
Issuer may execute, and, upon receipt of the documents required by SECTION 3.03,
together with an Officer's Certificate, the Indenture Trustee will authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any class are issued, the Issuer will
cause Definitive Notes of such class to be prepared without unreasonable delay.
After the preparation of Definitive Notes, the temporary Notes of such class
will be exchangeable for Definitive Notes of such class upon surrender of the
temporary Notes of such class at the office or agency of the Issuer in a Place
of Payment, without charge to the Holder; and upon surrender for cancellation of
any one or more temporary Notes the Issuer will execute and the Indenture
Trustee will authenticate and deliver in exchange therefor a like Stated
Principal Amount of Definitive Notes of such class of authorized denominations
and of like tenor and terms. Until so exchanged the temporary Notes of such
class will in all respects be entitled to the same benefits under this Indenture
as Definitive Notes of such class.
Section 3.05 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Issuer will keep or cause to be kept a register (herein
sometimes referred to as the "NOTE REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration of Registered Notes, or of Registered Notes of a particular class,
and for transfers of Registered Notes or of Registered Notes of such class. Any
such register will be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers will be available for
inspection by the Indenture Trustee at the office or agency to be maintained by
the Issuer as provided in SECTION 11.02.
(b) Subject to SECTION 2.04, upon surrender for transfer of any
Registered Note of any class at the office or agency of the Issuer in a Place of
Payment, if the requirements of
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Section 8-401(a) of the UCC are met, the Issuer will execute, and, upon receipt
of such surrendered note, the Indenture Trustee will authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Registered Notes of such class of any authorized denominations, of a like
aggregate Stated Principal Amount, Expected Principal Payment Date and Legal
Final Maturity Date and of like terms.
(c) Subject to SECTION 2.04, at the option of the Holder, Notes
of any class may be exchanged for other Notes of such class of any authorized
denominations, of a like aggregate Stated Principal Amount, Expected Principal
Payment Date and Legal Final Maturity Date and of like terms, upon surrender of
the Notes to be exchanged at such office or agency. Registered Notes, including
Registered Notes received in exchange for Bearer Notes, may not be exchanged for
Bearer Notes. At the option of the Holder of a Bearer Note, subject to
applicable laws and regulations, Bearer Notes may be exchanged for other Bearer
Notes or Registered Notes (of the same class) of authorized denominations of
like aggregate fractional undivided interests in the Noteholders' interest, upon
surrender of the Bearer Notes to be exchanged at an office or agency of the Note
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section will have attached thereto all unmatured coupons;
provided, however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Transfer Date need
not have attached the coupon relating to such Transfer Date. Whenever any Notes
are so surrendered for exchange, the Issuer will execute, and the Indenture
Trustee will authenticate and deliver (in the case of Bearer Notes, outside the
United Sates), the Notes which the Noteholders making the exchange are entitled
to receive.
(d) All Notes issued upon any transfer or exchange of Notes will
be the valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange
will (if so required by the Issuer or the Indenture Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any transfer or
exchange of Notes, but the Issuer may (unless otherwise provided in such Note)
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Notes,
other than exchanges pursuant to SECTION 3.04 or 10.06 not involving any
transfer.
(g) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(h) The Issuer initially appoints the Indenture Trustee to act as
Note Registrar for the Registered Notes on its behalf. The Issuer may at any
time and from time to time authorize
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any Person to act as Note Registrar in place of the Indenture Trustee with
respect to any class of Notes issued under this Indenture.
(i) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN.
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee will deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as EXHIBIT C
or such other form as the Issuer may determine, and no registration of transfer
will be made until such letter is so delivered. Notes issued upon registration
or transfer of, or Notes issued in exchange for, Notes bearing the legend
referred to above will also bear such legend unless the Issuer, the Trustee and
the Note Registrar receive an Opinion of Counsel, satisfactory to each of them,
to the effect that such legend may be removed.
Whenever a Note containing the legend referred to above is presented
to the Note Registrar for registration of transfer, the Note Registrar will
promptly seek instructions from the Issuer regarding such transfer and will be
entitled to receive an Issuer Certificate prior to registering any such
transfer. The Issuer hereby agrees to indemnify the Note Registrar and the
Indenture Trustee and to hold each of them harmless against any loss, liability
or expense incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by them in relation to any such
instructions furnished pursuant to this clause.
By accepting a Note, each purchaser and transferee shall be deemed to
represent and warrant that either (a) it is not (i) an "employee benefit plan"
(as defined in Section 3(3) of the United States 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 or (b) the purchase and
holding of the Note will not result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code.
Section 3.06 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
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(a) If (i) any mutilated Note (together, in the case of Bearer
Notes, with all unmatured coupons, if any, appertaining thereto) is surrendered
to the Indenture Trustee, or the Issuer and the Indenture Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer or the Indenture Trustee that such
Note has been acquired by a protected purchaser, the Issuer will execute and
upon its request the Indenture Trustee will authenticate and deliver (in the
case of Bearer Notes, outside the United States), in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor,
series or class, Expected Principal Payment Date, Legal Final Maturity Date and
Stated Principal Amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same series or class duly issued hereunder.
(e) The provisions of this Section are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Unless otherwise provided with respect to such Note pursuant
to SECTION 3.01, interest payable on any Registered Note will be paid to the
Person in whose name that Note (or one or more Predecessor Notes) is registered
at the close of business on the most recent Note Record Date and interest
payable on any Bearer Note will be paid to the bearer of that Note (or the
applicable coupon).
(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note will
carry the rights to interest accrued or principal accreted and unpaid, and to
accrue or accrete, which were carried by such other Note.
Section 3.08 PERSONS DEEMED OWNERS. The Issuer, the Indenture
Trustee, the Master Owner Trust Trustee, the Master Owner Trust Beneficiary and
any agent of the Issuer, the Indenture Trustee, the Master Owner Trust Trustee,
or the Master Owner Trust Beneficiary may treat the Person who is proved to be
the owner of such Note pursuant to SECTION 1.04(c) as the owner of such Note for
the purpose of receiving payment of principal of and (subject to SECTION
34
3.07) interest on such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and none of the Issuer, the Indenture Trustee, the
Master Owner Trust Trustee, the Master Owner Trust Beneficiary, or any agent of
the Issuer, the Indenture Trustee, the Master Owner Trust Trustee, or the Master
Owner Trust Beneficiary will be affected by notice to the contrary.
Section 3.09 CANCELLATION. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any Person
other than the Indenture Trustee, be delivered to the Indenture Trustee and, if
not already canceled, will be promptly canceled by it. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered will be promptly canceled by the
Indenture Trustee. No Note will be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. The Indenture Trustee will dispose of all canceled Notes in
accordance with its customary procedures and will deliver a certificate of such
disposition to the Issuer.
Section 3.10 NEW ISSUANCES OF NOTES.
(a) The Issuer may issue additional Notes of an existing series,
class or subclass or issue a new series of Notes, so long as the following
conditions of issuance are met:
(i) on or before the third Business Day before the date
that the new issuance of Notes is to occur, the Issuer or the
Administrator gives the Indenture Trustee and the Note Rating Agencies
written notice of the issuance;
(ii) the Issuer or the Administrator on its behalf
delivers to the Indenture Trustee an Issuer Certificate stating that
the Issuer or the Administrator reasonably believes, based on the
facts known to such officer at the time of such certification:
(A) the new issuance will not at the time of its
occurrence cause an Early Redemption Event or Event of
Default under any Outstanding series of Notes;
(B) all instruments furnished to the Indenture
Trustee conform to the requirements of this Indenture and
constitute sufficient authority under the Indenture for the
Indenture Trustee to authenticate and deliver the Notes; and
(C) the form and terms of the Notes have been
established in conformity with the provisions of the
Indenture.
(iii) the Issuer or the Administrator on its behalf
delivers to the Indenture Trustee and the Note Rating Agencies a
Master Trust Tax Opinion with respect to the new issuance;
35
(iv) the Issuer or the Administrator on its behalf
delivers to the Indenture Trustee and the Note Rating Agencies a
Master Owner Trust Tax Opinion with respect to the new issuance;
(v) each of the Note Rating Agency Condition and the
Certificate Rating Agency Condition shall have been satisfied with
respect to such new issuance, and, if the new issuance of Notes is to
be sold in a public offering, the new Notes are rated investment grade
by at least one nationally recognized statistical rating organization;
(vi) after giving effect to such issuance, the Seller's
Invested Amount is at least equal to the Minimum Seller's Invested
Amount;
(vii) no Early Amortization Event with respect to any
Investor Certificate has occurred and is continuing as of the date of
the new issuance;
(viii) no Early Redemption Event with respect to any series
of Notes has occurred and is continuing as of the date of the new
issuance; and
(ix) any other conditions specified in the related
Indenture Supplement are satisfied.
(b) The Issuer and the Indenture Trustee will not be required to
obtain the consent of any Securityholders to issue any additional Notes or
Certificates of any series or class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding class of a multiple issuance
series, so long as the conditions described in paragraph (a) are met. As of the
date of any additional issuance of Notes of an Outstanding class of Notes, the
Stated Principal Amount, Outstanding Principal Amount and Nominal Liquidation
Amount of that class will be increased to reflect the principal amount of the
additional Notes. If the additional Notes are a class of Notes that has the
benefit of a Enhancement Agreement, the Issuer will enter into a Enhancement
Agreement for the benefit of the additional Notes. The targeted deposits, if
any, to the principal funding Sub-Account will be increased proportionately to
reflect the principal amount of the additional Notes. When issued, the
additional Notes of a class will be identical in all respects to the other
Outstanding Notes of that class and will be equally and ratably entitled to the
benefits of the Indenture and the related Indenture Supplement as the other
Outstanding Notes of that class without preference, priority or distinction.
Section 3.11 SPECIFICATION OF OVERCOLLATERALIZATION AMOUNT AND OTHER
TERMS WITH RESPECT TO EACH CLASS
(a) The applicable Indenture Supplement for each class of Notes
will specify the subordination, if any, and Overcollateralization Amount, if
any, for each series or class of Notes.
(b) The Issuer may change the subordination for any class of
Notes or the Overcollateralization Amount, if any, for any class or series of
Notes at any time without the consent of any Noteholders so long as the Issuer
has (i) satisfied the Note Rating Agency Condition with respect to any
Outstanding Notes in that series or class, as applicable and (ii)
36
delivered to the Indenture Trustee and the Note Rating Agencies a Master Owner
Trust Tax Opinion.
Section 3.12 REALLOCATION OF NOTEHOLDER AVAILABLE INTEREST AMOUNTS
AND NOTEHOLDER AVAILABLE PRINCIPAL AMOUNTS. Noteholder Available Interest
Amounts, Noteholder Available Principal Amounts and other specified amounts
allocated to each series shall be reallocated to cover interest and expenses
related to each series to the extent, if any, specified in each related
Indenture Supplement.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 4.01 RECEIPTS. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and will
receive and collect, directly and without intervention or assistance from any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture including,
without limitation, all funds and other property payable to the Indenture
Trustee in connection with the Collateral (collectively, the "RECEIPTS"). The
Indenture Trustee will hold all Receipts and will apply them as provided in this
Indenture.
Section 4.02 ACCOUNTS.
(a) ACCOUNTS; DEPOSITS TO AND DISTRIBUTIONS FROM ACCOUNTS. On or
before the Effective Date, the Issuer will cause to be established and
maintained one or more Eligible Deposit Accounts (collectively, the "DEPOSIT
ACCOUNT") in the name of the Indenture Trustee, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Indenture Trustee, the Noteholders and any applicable Enhancement Provider. All
Receipts received from the Master Trust pursuant to ARTICLE IV of the Pooling
and Servicing Agreement as supplemented by the Series Supplement shall be
deposited into the Deposit Account. From time to time in connection with the
issuance of a series or class of Notes, the Indenture Trustee may establish one
or more Eligible Deposit Accounts denominated as "SUPPLEMENTAL ACCOUNTS" in the
name of the Indenture Trustee. The Indenture Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Deposit
Account and in all proceeds thereof for the benefit of the Secured Parties.
Except as expressly provided in this Indenture, the Indenture Trustee shall have
no right of set-off or banker's lien against and no right to otherwise deduct
from any funds held in the Deposit Account or the Supplemental Accounts for any
amount owed to it by the Issuer, any Holder or any Enhancement Provider. The
Deposit Account shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Secured Parties. If, at any time, the institution
holding the Deposit Account ceases to be an Eligible Institution, the Issuer
will within ten (10) Business Days (or such longer period, not to exceed thirty
(30) calendar days, as to which each Note Rating Agency may consent in writing)
establish a new Deposit Account that is a Eligible Deposit Account and shall
transfer any cash and/or investments to such new Deposit Account. From the date
such new Deposit Account is established, it will be the "Deposit Account."
Supplemental Accounts will be created as specified in the applicable Indenture
Supplement. Any Supplemental Account will receive deposits as set forth in the
applicable Indenture Supplement.
37
(b) All payments to be made from time to time by or on behalf of
the Indenture Trustee to Noteholders out of funds in the Accounts pursuant to
this Indenture will be sent by or on behalf of the Indenture Trustee to the
Paying Agent not later than 4:30 noon Eastern Standard Time on the applicable
Transfer Date or earlier, if necessary, or as otherwise provided in ARTICLE V or
the applicable Indenture Supplement but only to the extent of available funds in
the applicable Supplemental Account or Sub-Account.
Section 4.03 INVESTMENT OF FUNDS IN THE ACCOUNTS.
(a) Funds on deposit in the Accounts will be invested and
reinvested by the Indenture Trustee at the written direction of the Issuer in
one or more Eligible Investments. The Issuer may authorize the Indenture Trustee
to make specific investments pursuant to written instructions, in such amounts
as the Issuer will specify. Notwithstanding the foregoing, funds held by the
Indenture Trustee in any of the Accounts will be invested in Eligible
Investments that will mature in each case no later than the date on which such
funds in the Accounts are scheduled to be transferred or distributed by the
Indenture Trustee pursuant to this Indenture (or as necessary to provide for
timely payment of principal or interest on the applicable Transfer Date).
(b) All funds deposited from time to time in the Accounts
pursuant to this Indenture and all investments made with such funds will be held
by the Indenture Trustee in the Accounts as part of the Collateral as herein
provided, subject to withdrawal by the Indenture Trustee for the purposes set
forth herein.
(c) Funds and other property in any of the Accounts will not be
commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall: (i) hold each Eligible Investment that
constitutes investment property through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (A) such
investment property at all times shall be credited to a securities account of
the Indenture Trustee, (B) all property credited to such securities account
shall be treated as a financial asset, (C) such securities intermediary shall
treat the Indenture Trustee as entitled to exercise the rights that comprise
each financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other than the
Indenture Trustee to comply with entitlement orders originated by any person or
entity other than the Indenture Trustee, (F) such securities account and all
property credited thereto shall not be subject to any lien, security interest,
right of set-off, or encumbrance in favor of such securities intermediary or
anyone claiming through such securities intermediary (other than the Indenture
Trustee), and (G) such agreement between such securities intermediary and the
Indenture Trustee shall be governed by the laws of the State of New York; and
(ii) maintain possession of each other Eligible Investment not described in
clause (i) above in the State of New York separate and apart from all other
property held by the Indenture Trustee; provided, that, other than following an
Event of Default and acceleration pursuant to SECTION 7.02, no Eligible
Investment shall be disposed of prior to its maturity. Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not hold any Eligible
Investment through an agent except as expressly permitted by this SECTION
4.03(c). Each
38
term used in this SECTION 4.03(c) and defined in the New York UCC shall have the
meaning set forth in the New York UCC.
(d) On each Transfer Date, the Indenture Trustee will treat all
interest and earnings (net of losses and investment expenses) accrued since the
preceding Transfer Date on funds on deposit in the Deposit Account as Noteholder
Available Interest Amounts. Unless otherwise stated in the related Indenture
Supplement, for purposes of determining the availability of funds or the balance
in the Supplemental Accounts for any reason under this Indenture or any
Indenture Supplement, investment earnings on such funds shall be deemed not to
be available or on deposit. Subject to SECTION 8.01(c), the Indenture Trustee
will not in any way be held liable by reason of any insufficiency in such
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity, in accordance with their terms.
(e) Funds on deposit in the Accounts will be invested and
reinvested by the Indenture Trustee to the fullest extent practicable, in such
manner as the Indenture Trustee will from time to time determine, but only in
one or more Eligible Investments, upon the occurrence of any of the following
events:
(i) the Issuer will have failed to give investment
directions to the Indenture Trustee; or
(ii) an Event of Default will have occurred and is
continuing but no Notes have been declared due and payable pursuant to
SECTION 7.02.
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 5.01 ALLOCATION OF FUNDS FROM THE COLLATERAL CERTIFICATE TO
NOTES. Noteholder Available Principal Amounts, Noteholder Available Interest
Amounts and Noteholder Allocated Dealer Note Losses and other amounts allocated
to the Collateral Certificate shall be allocated and applied as specified in
each series' respective Indenture Supplement.
Section 5.02 EXCESS AVAILABLE PRINCIPAL AMOUNTS; SHARED PRINCIPAL
COLLECTIONS. On each Business Day, Excess Available Principal Amounts from each
series of Notes for such Business Day shall be allocated to each Outstanding
series of Notes that so provides in the related Indenture Supplement up to the
Series Available Principal Amount Shortfall for such series. If on any Business
Day the aggregate of Excess Available Principal Amounts for all series for such
Business Day is less than the aggregate amount of Series Available Principal
Amount Shortfall, for all series for such Business Day, Excess Available
Principal Amounts will be allocated pro rata among those series of Notes with
Series Available Principal Amount Shortfalls on the basis of such Series
Available Principal Amount Shortfalls, and the remaining shortfall shall be
deemed the Series Principal Shortfall for the Collateral Certificate for such
Business Day. Any Shared Principal Collections allocated to the Collateral
Certificate as a result of such Series Principal Shortfall shall be allocated
pro rata among the series of Notes with remaining shortfalls of Series Available
Principal Amount Shortfalls on the basis of such
39
remaining shortfalls up to the amount of such shortfalls. If the aggregate
Excess Available Principal Amounts for such Business Day is greater than the
aggregate amount of Series Available Principal Amount Shortfalls for all series
for such Business Day, the excess shall be deemed Shared Principal Collections
from the Collateral Certificate and allocated in accordance with the Pooling and
Servicing Agreement.
Section 5.03 EXCESS AVAILABLE INTEREST AMOUNTS; EXCESS FINANCE
CHARGE COLLECTIONS. On each Transfer Date, Excess Available Interest Amounts
from each series of Notes for the related Due Period shall be allocated to each
Outstanding series of Notes that so provides in the related Indenture Supplement
up to the Series Available Interest Amount Shortfall for such series. If on any
Transfer Date, the aggregate of Excess Available Interest Amounts for all series
for the related Due Period is less than the aggregate amount of Series Available
Interest Shortfalls for such Transfer Date, Excess Available Interest Amounts
will be allocated pro rata among those series of Notes with Series Available
Interest Amount Shortfalls on the basis of such Series Available Interest Amount
Shortfalls, and any remaining shortfall shall be deemed the Series Finance
Charge Shortfall for the Collateral Certificate for such Transfer Date. In the
event that any Excess Finance Charge Collections are allocated to the Collateral
Certificate as a result of such Series Finance Charge Shortfall, such amounts
shall be allocated pro rata among those series of Notes with remaining
shortfalls of Series Available Interest Amount Shortfalls on the basis of such
remaining shortfalls up to the amount of such shortfalls. If the aggregate
Excess Available Interest Amounts for such Transfer Date is greater than the
aggregate amount of Series Available Interest Amount Shortfalls for such
Transfer Date, the excess shall be deemed Excess Finance Charge Collections from
the Collateral Certificate and allocated in accordance with the Pooling and
Servicing Agreement.
Section 5.04 FINAL PAYMENT. Each class of Notes will be considered
to be paid in full, the Holders of such class of Notes will have no further
right or claim, and the Issuer will have no further obligation or liability with
respect to such class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal
Amount of and all accrued interest on that class of Notes;
(b) the date on which the Outstanding Principal Amount of such
Notes, after giving effect to all deposits, allocations, reallocations, sales of
Dealer Notes and payments to be made on such date, is reduced to zero, and all
accrued interest on such Notes is paid in full; or
(c) on the Legal Final Maturity Date of such Notes, after giving
effect to all deposits, allocations, reallocations, sales of Dealer Notes and
payments to be made on such date.
Section 5.05 PAYMENTS WITHIN A SERIES OR CLASS. All payments of
principal, interest or other amounts to Holders of the Notes of a series or
class will be made in accordance with the related Indenture Supplement.
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ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE
ISSUER OR NFSC
Section 6.01 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
will cease to be of further effect with respect to any series or class of Notes,
except as to (a) any surviving rights of transfer or exchange of Notes of that
series or class expressly provided for herein or in the form of Note for that
series or class (b) the rights of Noteholders to receive payments of principal
thereof and interest thereon, (c) SECTIONS 11.03, 11.13, 11.15 AND 14.01 and (d)
the rights of Noteholders as beneficiaries hereof with respect to the property
so deposited with the Indenture Trustee and payable to all or any of them, and
the Indenture Trustee, on demand of and at the expense of the Issuer, will
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to that series or class, when:
(a) all Notes of that series or class theretofore authenticated
and delivered (other than (A) Notes of that series or class which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
SECTION 3.06, and (B) Notes of that series or class for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from that trust, as
provided in SECTION 11.03) have been delivered to the Indenture Trustee canceled
or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder (including payments to the Indenture Trustee pursuant to
SECTION 8.07) by the Issuer with respect to the Notes of that series or class;
and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and a Master Owner Trust Opinion of Counsel and, if
required by the Trust Indenture Act an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of SECTION
1.02, each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to the Notes of
that series or class have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series or class of Notes, the obligations of the Issuer to the
Indenture Trustee with respect to that series or class under SECTION 8.07 and
the obligations of the Indenture Trustee under SECTIONS 6.02 and 11.03 will
survive such satisfaction and discharge.
Section 6.02 APPLICATION OF TRUST MONEY. All money and obligations
deposited with the Indenture Trustee pursuant to SECTION 6.01 or SECTION 6.03
and all money received by the Indenture Trustee in respect of such obligations
will be held in trust and applied by it, in accordance with the provisions of
the series or class of Notes in respect of which it was deposited, this
Indenture and the applicable Indenture Supplement, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Indenture Trustee may determine, to the Persons entitled
thereto, of the principal and interest for whose payment that money and
obligations have been deposited with or received by the Indenture Trustee; but
that money and obligations need not be segregated from other funds held by the
Indenture Trustee except to the extent required herein or required by law.
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Section 6.03 CANCELLATION OF NOTES HELD BY THE ISSUER OR NFSC. If
the Issuer, NFSC or any of their Affiliates holds any Notes, that Holder may,
subject to any provisions of a related Indenture Supplement limiting the
repayment of subordinated classes of Notes, if any, by notice from that Holder
to the Indenture Trustee cause that Note to be canceled, whereupon (a) the Note
will no longer be Outstanding, and (b) the Issuer will cause the Investor
Interest of the Collateral Certificate to be reduced by an amount equal to the
Nominal Liquidation Amount of that cancelled Note.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever used
herein, means with respect to any series or class of Notes any one of the
following events, unless such event is either expressly stated to be
inapplicable to a particular series or class or specifically deleted or modified
in the applicable Indenture Supplement creating such series or class of Notes or
in the form of Note for such series or class:
(a) a default by the Issuer in the payment of any interest on
such Notes when such interest becomes due and payable, and continuance of such
default for a period of five (5) Business Days following the date on which such
interest became due and payable;
(b) a default by the Issuer in the payment of the Outstanding
Principal Amount of such Notes at the applicable Legal Final Maturity Date;
(c) a default in the performance, or breach, of any material
covenant or warranty of the Issuer in this Indenture in any material respect in
respect of the Notes of such series or class (other than a covenant or warranty
in respect of the Notes of such series or class a default in the performance of
which or the breach of which is elsewhere in this Section specifically dealt
with), all of such covenants and warranties in this Indenture which are not
expressly stated to be for the benefit of a particular series or class of Notes
being deemed to be in respect of the Notes of all series or classes for this
purpose, and continuance of such default or breach for a period of ninety (90)
days after there has been given, by registered or certified mail, to the Seller
and the Issuer by the Indenture Trustee or to the Seller, the Issuer and the
Indenture Trustee by the Holders of at least 25% in Outstanding Principal Amount
of the Outstanding Notes of such series or class, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "NOTICE OF DEFAULT" hereunder and, as a result of such default, the
interests of the Holders of the Notes of such series or class are materially and
adversely affected and continue to be materially and adversely affected during
the ninety (90) day period;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging the
Issuer a bankrupt or insolvent under any other applicable federal or state law,
or the entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer under the Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer or of any substantial part of its
property, or ordering the winding up or liquidation of its
42
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of one hundred and twenty (120) consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable federal or state law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Issuer in furtherance of any such action; or
(f) with respect to any series or class, any additional Event of
Default specified in the Indenture Supplement for such series or class as
applying to such series or class, or specified in the form of Note for such
series or class.
The Issuer shall deliver to any authorized officer of the Indenture
Trustee, within five (5) days after the occurrence thereof, written notice in
the form of an Officer's Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default, its status and
what action the Issuer is taking or proposes to take with respect thereto.
Section 7.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default described in clause (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f) is with respect to less
than all series and classes of Notes then Outstanding) of SECTION 7.01 occurs
and is continuing with respect to any series or class, then and in each and
every such case, unless the principal of all the Notes of such series or class
shall have already become due and payable, either the Indenture Trustee or the
Majority Holders of the Notes of such series or class then Outstanding hereunder
(each such series or class acting as a separate class), by notice in writing to
the Issuer (and to the Indenture Trustee if given by Holders), may declare the
Outstanding Principal Amount of all the Notes of such series or class then
Outstanding and all interest accrued or principal accreted and unpaid (if any)
thereon to be due and payable immediately, and upon any such declaration the
same will become and will be immediately due and payable, anything in this
Indenture, the related Indenture Supplement or in the Notes of such series or
class to the contrary notwithstanding. Such payments are subject to ARTICLE V
and the allocation, deposits and payment sections of the related Indenture
Supplement.
(b) If an Event of Default described in clause (c) or (f) (if the
Event of Default under clause (c) or (f) is with respect to all series and
classes of Notes then Outstanding) of SECTION 7.01 occurs and is continuing,
then and in each and every such case, unless the principal of all the Notes
shall have already become due and payable, either the Indenture Trustee or the
Majority Holders of all the Notes then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the Indenture Trustee if
given by Holders), may declare the Outstanding Principal Amount of all the Notes
then Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such declaration
the same will become and will be immediately due and payable,
43
notwithstanding anything in this Indenture, the related Indenture Supplements or
the Notes to the contrary.
(c) If an Event of Default described in clause (d) or (e) of
SECTION 7.01 occurs and is continuing, then the Notes of all series and classes
will automatically be and become immediately due and payable by the Issuer,
without notice or demand to any Person, and the Issuer will automatically and
immediately be obligated to pay off the Notes.
(d) At any time after such a declaration of acceleration of
maturity has been made with respect to the Notes of any series or class and
before a judgment or decree for payment of the money due has been obtained by
the Indenture Trustee as hereinafter provided in this ARTICLE VII, the Majority
Holders of such series or classes, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if the Issuer (or the Servicer, in the case of subsection iv herein) has
deposited with the Indenture Trustee a sum sufficient to pay (i) all overdue
installments of interest on the Notes of such series or class, (ii) the
principal of any Notes of such series or class which have become due otherwise
than by such declaration of acceleration, and interest thereon at the rate or
rates prescribed therefor by the terms of the Notes of such series or class, to
the extent that payment of such interest is lawful, (iii) interest upon overdue
installments of interest at the rate or rates prescribed therefor by the terms
of the Notes of such series or class to the extent that payment of such interest
is lawful and (iv) all sums paid by the Indenture Trustee hereunder and the
reasonable compensation, expenses and disbursements of the Indenture Trustee,
its agents and counsel and all other amounts due the Indenture Trustee under
SECTION 8.07; and all Events of Default with respect to such series or class of
Notes, other than the nonpayment of the principal of the Notes of such series or
class which has become due solely by such acceleration, have been cured or
waived as provided in SECTION 7.15. No such rescission will affect any
subsequent default or impair any right consequent thereon.
Section 7.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any series
or class of Notes when such interest becomes due and payable and such default
continues for a period of five (5) Business Days following the date on which
such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any
series or class of Notes at the Legal Final Maturity Date thereof, and any such
default continues beyond any specified grace period provided with respect to
such series or class of Notes,
the Issuer will, upon demand of the Indenture Trustee, pay (subject to the
priorities and funds after giving effect to the allocation provided in ARTICLE
V, this ARTICLE VII, the Pooling and Servicing Agreement and any related
Indenture Supplement) to the Indenture Trustee, for the benefit of the Holders
of any such Notes of the affected series or class, the whole amount then due and
payable on any such Notes for principal and interest, with interest, to the
extent that payment of such interest will be legally enforceable, upon the
overdue principal and upon overdue installments of interest, (i) in the case of
Interest-Bearing Notes, at the rate of interest applicable to the Stated
Principal Amount thereof, unless otherwise specified in the applicable
44
Indenture Supplement; and (ii) in the case of Discount Notes, as specified in
the applicable Indenture Supplement, and in addition thereto, will pay such
further amount as will be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel and all other amounts
due the Indenture Trustee under SECTION 8.07. If the Issuer fails to pay such
amounts forthwith upon such demand, the Indenture Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Issuer or any
other obligor upon the Notes of such series or class and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
Collateral or any other obligor upon such Notes, wherever situated.
Section 7.04 INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the Notes will then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee will have made any demand on the
Issuer for the payment of overdue principal or interest) will be entitled and
empowered, by intervention in such proceedings or otherwise, (i) to file and
prove a claim for the whole amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may be
necessary and advisable in order to have the claims of the Indenture Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee, its agents and counsel and all other
amounts due the Indenture Trustee under SECTION 8.07) and of the Noteholders
allowed in such judicial proceeding, and (ii) to collect and receive any funds
or other property payable or deliverable on any such claims and to distribute
the same; and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Noteholder to make such payment to the Indenture Trustee and in the event
that the Indenture Trustee will consent to the making of such payments directly
to the Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture Trustee
under SECTION 8.07. Nothing herein contained will be deemed to authorize the
Indenture Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Indenture Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 7.05 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF NOTES. All rights of action and claims under this Indenture or the Notes of
any series or class may be prosecuted and enforced by the Indenture Trustee
without the possession of any of the Notes of such series or class or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Indenture Trustee will be brought in its own name as trustee
of an express trust, and any recovery of judgment will, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its
45
agent and counsel, be for the ratable benefit of the Holders of the Notes of the
series or class in respect of which such judgment has been recovered.
Section 7.06 APPLICATION OF MONEY COLLECTED. Any money or other
property collected by the Indenture Trustee with respect to a series or class of
Notes pursuant to this ARTICLE VII following the acceleration of the Notes of
the affected series or class, will be applied in accordance with SECTION 7.07,
at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such series or class and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid.
Section 7.07 ISSUER WILL HOLD THE COLLATERAL CERTIFICATE. Following
an acceleration of any series or class of Notes and subject to SECTION 7.08, the
Issuer will continue to hold the Collateral Certificate and apply distributions
on the Collateral Certificate in accordance with the regular distribution
provisions pursuant to ARTICLE V of this Indenture (and the related Indenture
Supplements), except that principal will be paid on the accelerated series or
class of Notes to the extent (x) funds are received from the Master Trust and
available to the accelerated series or class after giving effect to all
allocations and reallocations and (y) payment is permitted by the subordination
provisions of the senior Notes, if any, of the same series.
Section 7.08 NOTEHOLDERS HAVE THE RIGHT TO DIRECT THE TIME, METHOD
AND PLACE OF CONDUCTING ANY PROCEEDING FOR ANY REMEDY AVAILABLE TO THE INDENTURE
TRUSTEE. The Majority Holders of any accelerated series or class of Notes have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, in respect of such series or class. This
right may be exercised only if the direction provided by the Noteholders does
not conflict with applicable law or this Indenture or the related Indenture
Supplement and does not have a substantial likelihood of involving the Indenture
Trustee in personal liability.
Section 7.09 LIMITATION ON SUITS. No Holder of any Note of any
series or class will have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to Notes of such
series or class;
(b) the Holders of not less than 50% in Outstanding Principal
Amount of the Outstanding Notes of such series or class have made written
request to the Indenture Trustee to institute proceedings in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt
of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
46
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty (60) day period by the Majority
Holders of such series or class;
it being understood and intended that not one or more Holders of Notes of such
series or class will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Notes of such series or class, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Notes of such series
or class.
Section 7.10 UNCONDITIONAL RIGHT OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST; LIMITED RECOURSE. Notwithstanding any other provisions in this
Indenture, the Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of interest on such Notes as it becomes due
and payable and the principal of such Note on the Legal Final Maturity Date
expressed in the related Indenture Supplement and to institute suit for the
enforcement of any such payment, and such right will not be impaired without the
consent of such Holder; provided, however, that notwithstanding any other
provision of this Indenture to the contrary, the obligation to pay principal of
or interest on the Notes or any other amount payable to any Noteholder will be
without recourse to NFSC, the Indenture Trustee, the Master Owner Trust Trustee
or any affiliate, officer, employee or director of any of them, and the
obligation of the Issuer to pay principal of or interest on the Notes or any
other amount payable to any Noteholder will be subject to ARTICLE V and the
allocation and payment provisions of the Indenture Supplements.
Section 7.11 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned, or has been determined adversely to the Indenture Trustee or such
Noteholder for any reason, then and in every such case the Issuer, the Indenture
Trustee and the Noteholders will, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders will continue as though no such proceeding had been instituted.
Section 7.12 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy will, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, will not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 7.13 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Indenture Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default will impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
47
Indenture Trustee or to the Noteholders may be exercised from time to time, and
as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
Section 7.14 CONTROL BY NOTEHOLDERS. The Majority Holders of any
series or class will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee with respect to
the Notes of such series or class, provided that:
(a) the Indenture Trustee will have the right to decline to
follow any such direction if the Indenture Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Indenture Trustee in good faith will, by
an Indenture Trustee Authorized Officer, determine that the proceedings so
directed would involve it in personal liability or be unjustly prejudicial to
the Holders not taking part in such direction, and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not inconsistent with
such direction.
Section 7.15 WAIVER OF PAST DEFAULTS. Prior to the declaration of
the acceleration of the maturity of the of the Notes of the affected series or
class as provided in SECTION 7.02, the Majority Holders of any series or class
may on behalf of the Holders of all the Notes of such series or class waive any
past default hereunder or under the related Indenture Supplement with respect to
such series or class and its consequences, except a default not theretofore
cured:
(a) in the payment of the principal of or interest on any Note of
such series or class, or
(b) in respect of a covenant or provision hereof which under
ARTICLE X cannot be modified or amended without the consent of the Holder of
each Outstanding Note of such series or class.
Upon any such waiver, such default will cease to exist, and any Event
of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture; but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
Section 7.16 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken or omitted by it as Indenture
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section will not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Principal Amount of the Outstanding Notes
of any series or class to which the suit relates, or to any suit instituted by
any Noteholders for the enforcement of the payment
48
of the principal of or interest on any Note on or after the applicable Legal
Final Maturity Date expressed in such Note.
Section 7.17 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 8.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture with respect to
the Notes of any series or classes, and no implied covenants or obligations will
be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith or negligence on its part, the
Indenture Trustee may, with respect to Notes of any series or class,
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein.
(c) In case an Event of Default with respect to any series or
class of Notes has occurred and is continuing, the Indenture Trustee will
exercise with respect to the Notes of such series or class such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a fiduciary would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve
the Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this SUBSECTION (d) will not be construed to limit
the effect of SUBSECTION (a) of this Section;
(ii) the Indenture Trustee will not be liable for any
error of judgment made in good faith by an Indenture Trustee
Authorized Officer, unless
49
it will be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Majority Holders of any series
or class relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture with respect to the Notes of such series or
class; and
(iv) no provision of this Indenture will require the
Indenture Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
will have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to the Indenture Trustee against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee will be subject to the provisions
of this Section.
Section 8.02 NOTICE OF DEFAULTS. Within thirty (30) days after the
occurrence of an Event of Default hereunder with respect to Notes of any series
or class:
(a) the Indenture Trustee will transmit by mail to all Registered
Noteholders of such series or class, as their names and addresses appear in the
Note Register, notice of such Event of Default hereunder known to the Indenture
Trustee,
(b) the Indenture Trustee will notify all Holders of Bearer Notes
of such series or class, by publication of notice of such Event of Default
hereunder in an Authorized Newspaper, or as otherwise provided in the applicable
Indenture Supplement provided there are Outstanding Bearer Notes, and
(c) the Indenture Trustee will give prompt written notification
thereof to the Note Rating Agencies, unless such Event of Default will have been
cured or waived;
Section 8.03 CERTAIN RIGHTS OF INDENTURE TRUSTEE. Except as
otherwise provided in SECTION 8.01:
(a) the Indenture Trustee may conclusively rely and will be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) before the Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate from the Issuer;
50
(c) whenever in the administration of this Indenture the
Indenture Trustee will deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Master Owner Trust Opinion of
Counsel will be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Indenture Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Indenture Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Indenture Trustee will determine to
make such further inquiry or investigation, it will be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Indenture Trustee will not be responsible for filing any
financing statements or continuation statements in connection with the Notes,
but will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements.
Section 8.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the Indenture
Trustee assumes no responsibility for their correctness. The Indenture Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Indenture Trustee will not be accountable for the use or
application by the Issuer of Notes or the proceeds thereof.
Section 8.05 MAY HOLD NOTES. The Indenture Trustee, any Paying
Agent, the Note Registrar or any other agent of the Issuer, in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject to
SECTIONS 8.08 and 8.13, may otherwise deal with the Issuer with the same rights
it would have if it were not Indenture Trustee, Paying Agent, Note Registrar or
such other agent.
Section 8.06 MONEY HELD IN TRUST. Money held in trust by the
Indenture Trustee need not be segregated from other funds except to the extent
required by law or the terms of this
51
Indenture or the other Issuer Documents. The Indenture Trustee will be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer.
Section 8.07 COMPENSATION AND REIMBURSEMENT, LIMIT ON COMPENSATION,
REIMBURSEMENT AND INDEMNITY.
(a) The Issuer shall cause the Servicer pursuant to the Series
Supplement
(i) to pay to the Indenture Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation will not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable
out of pocket expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to hold
it harmless against, any and all loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
or liability (whether asserted by the Issuer, the Servicer, any Holder
or any other Person) in connection with the exercise or performance of
any of its powers or duties hereunder. The Indenture Trustee will have
no recourse to any asset of the Issuer other than funds available
pursuant to SECTION 7.06 or to any Person other than the Servicer or
the Issuer.
(b) This Section will survive the termination of this Indenture
and the resignation or replacement of the Indenture Trustee under SECTION 8.10.
Section 8.08 DISQUALIFICATION; CONFLICTING INTERESTS. If the
Indenture Trustee has or will acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Indenture Trustee will, if so required by the
Trust Indenture Act, either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. Nothing herein will prevent the Indenture Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 3.10(b) of the Trust Indenture Act.
Section 8.09 CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY. The
Indenture Trustee shall at all times satisfy the requirements of Section 310(a)
of the Trust Indenture Act. There will at all times be an Indenture Trustee
hereunder with respect to each series or class of Notes, which will be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by
52
federal or state authority, and having a long term unsecured debt rating of at
least BBB- by Standard & Poor's and Baa3 by Moody's. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
will be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Issuer may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee
with respect to any series or class of Notes will cease to be eligible in
accordance with the provisions of this Section, it will resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article will
become effective until the acceptance of appointment by the successor Indenture
Trustee under SECTION 8.11.
(b) The Indenture Trustee may resign with respect to any series
or class of Notes at any time by giving written notice thereof to the Issuer. If
an instrument of acceptance by a successor Indenture Trustee shall not have been
delivered to the Indenture Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
(c) The Indenture Trustee may be removed with respect to any
series or class of Notes at any time by Act of the Majority Holders of that
series or class, delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with Section
3.10(b) of the Trust Indenture Act with respect to any series or class
of Notes after written request therefor by the Issuer or by any
Noteholder who has been a bona fide Holder of a Note of that series or
class for at least 60 days, or
(ii) the Indenture Trustee ceases to be eligible under
SECTION 8.09 with respect to any series or class of Notes and fails to
resign after written request therefor by the Issuer or by any such
Noteholder, or
(iii) the Indenture Trustee otherwise becomes legally
incapable of acting with respect to any series or class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or
insolvent or a receiver of the Indenture Trustee or of its property is
appointed or any public officer takes charge or control of the
Indenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
53
(A) the Issuer may remove the Indenture Trustee, with respect to the series or
class, or in the case of CLAUSE (iv), with respect to all series or classes, or
(B) subject to SECTION 7.09, any Noteholder who has been a bona fide Holder of a
Note of such series, class and class for at least six (6) months may, on behalf
of itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Indenture Trustee with respect to such
series or class and the appointment of a successor Indenture Trustee with
respect to the series or class, or, in the case of CLAUSE (iv), with respect to
all series and classes.
(e) If the Indenture Trustee resigns, is removed or otherwise
becomes legally incapable of acting with respect to any series or class of
Notes, or if a vacancy shall occur in the office of the Indenture Trustee with
respect to any series or class of Notes for any cause, the Issuer will promptly
appoint a successor Indenture Trustee for that series or class of Notes. If a
successor Indenture Trustee with respect to such series or class does not take
office within 60 days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, Issuer or Majority Holders may petition
any court of competent jurisdiction for the appointment of a successor Indenture
Trustee with respect to such series or class.
(f) The Issuer will give written notice of each resignation and
each removal of the Indenture Trustee with respect to any series or class and
each appointment of a successor Indenture Trustee with respect to any series or
class to each Noteholder as provided in SECTION 1.05 and to each Note Rating
Agency. Each notice will include the name of the successor Indenture Trustee and
the address of its principal Indenture Trustee Corporate Trust Office.
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Indenture Trustee appointed hereunder will execute, acknowledge and deliver to
the Issuer and to the predecessor Indenture Trustee an instrument accepting such
appointment, with a copy to the Note Rating Agencies, and thereupon the
resignation or removal of the predecessor Indenture Trustee will become
effective with respect to any series or class as to which it is resigning or
being removed as Indenture Trustee, and such successor Indenture Trustee,
without any further act, deed or conveyance, will become vested with all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to any such series or class; but, on request of the Issuer or the
successor Indenture Trustee, such predecessor Indenture Trustee will, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the predecessor Indenture Trustee, and will duly assign, transfer and
deliver to such successor Indenture Trustee all property and money held by such
predecessor Indenture Trustee hereunder with respect to all or any such series
or class, subject nevertheless to its lien, if any, provided for in SECTION
8.07. Upon request of any such successor Indenture Trustee, the Issuer will
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Indenture Trustee all such rights, powers and
trusts. In case of the appointment hereunder of a successor Indenture Trustee
with respect to the Notes of one or more (but not all) series or classes, the
Issuer, the predecessor Indenture Trustee and each successor Indenture Trustee
with respect to the Notes of any applicable series or class will execute and
deliver an Indenture Supplement which will contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Indenture Trustee with respect to the Notes of any
series or class as to which the predecessor Indenture Trustee is not being
succeeded will continue to be vested in the predecessor Indenture Trustee, and
will add to or change any of the provisions of this Indenture
54
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Indenture Trustee, it being understood that
nothing herein or in such Indenture Supplement will constitute such Indenture
Trustees co-trustees of the same trust and that each such Indenture Trustee will
be Indenture Trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Indenture Trustee. No
successor Indenture Trustee with respect to any series or class of Notes will
accept its appointment unless at the time of such acceptance such successor
Indenture Trustee will be qualified and eligible with respect to that series or
class under this Article.
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor of
the Indenture Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. The
Issuer will give prompt written notice of such merger, conversion, consolidation
or succession to the Note Rating Agencies . In case any Notes shall have been
authenticated, but not delivered, by the Indenture Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Indenture Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture Trustee had
itself authenticated such Notes.
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. If
and when the Indenture Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Notes), the Indenture Trustee will be subject to the
provisions of Section 3.11 of the Trust Indenture Act. An Indenture Trustee who
has resigned or been removed will be subject to Section 3.11(a) of the Trust
Indenture Act to the extent provided therein.
Section 8.14 APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Notes remain Outstanding, the Indenture Trustee, with the approval of
the Issuer and prior written notice to the Administrator and the Servicer, may
appoint an Authenticating Agent or Agents with respect to one or more series or
classes of Notes which will be authorized to act on behalf of the Indenture
Trustee to authenticate Notes of such series or classes in connection with the
issuance, deliveries, exchange, registration of transfer or partial redemption
thereof or pursuant to SECTION 3.06, and Notes so authenticated will be entitled
to the benefits of this Indenture and will be valid and obligatory for all
purposes as if authenticated by the Indenture Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Indenture Trustee or the Indenture Trustee's certificate of
authentication, such reference will be deemed to include authentication and
delivery on behalf of the Indenture Trustee by an Authenticating Agent,
including any certificate of authentication executed on behalf of the Indenture
Trustee by an Authenticating Agent. Each Authenticating Agent will be acceptable
to the Issuer and will at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Issuer itself, subject to supervision or examination by a
federal or state authority. If such Authenticating Agent publishes reports of
55
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent will 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 an Authenticating Agent will cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent will resign immediately in the manner and with the effect specified in
this Section. The initial Authenticating Agent for the Notes of all series and
classes will be the Indenture Trustee. Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent will be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, will continue to be an Authenticating Agent, provided such
corporation will be otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part of the Indenture Trustee
or the Authenticating Agent. An Authenticating Agent may resign at any time by
giving written notice thereof to the Indenture Trustee and to the Issuer. The
Indenture Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent will cease to be eligible in
accordance with the provisions of this Section, the Indenture Trustee, with the
approval of the Issuer, may appoint a successor Authenticating Agent which will
be acceptable to the Issuer and will give notice to each Noteholder as provided
in SECTION 10.09. Any successor Authenticating Agent upon acceptance of its
appointment hereunder will become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent will be appointed unless
eligible under the provisions of this Section. The Indenture Trustee agrees to
pay to each Authenticating Agent (other than an Authenticating Agent appointed
at the request of the Issuer from time to time) reasonable compensation for its
services under this Section, and the Indenture Trustee will be entitled to be
reimbursed for such payments, subject to the provisions of SECTION 8.07. If an
appointment with respect to one or more series or classes is made pursuant to
this Section, the Notes of such series or classes may have endorsed thereon, in
addition to the Indenture Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Notes of the series or classes designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Indenture Trustee
By:
-------------------------------
As Authenticating Agent
By:
-------------------------------
Indenture Trustee Authorized Officer
Section 8.15 TAX RETURNS. In the event the Issuer shall be required
to file tax returns, the Administrator pursuant to the Administration Agreement
shall prepare or shall cause to be prepared such tax returns and shall provide
such tax returns to the Master Owner Trust Trustee or
56
the Master Owner Trust Beneficiary for signature at least five (5) days before
such tax returns are due to be filed. The Issuer, in accordance with the terms
of each Indenture Supplement, shall also prepare or shall cause to be prepared
all tax information required by law to be distributed to Noteholders and shall
deliver such information to the Indenture Trustee at least five (5) days prior
to the date it is required by law to be distributed to Noteholders. The
Indenture Trustee, upon written request, will furnish the Servicer with all such
information known to the Indenture Trustee as may be reasonably requested and
required in connection with the preparation of all tax returns of the Issuer,
and shall, upon request, execute such returns. In no event shall the Indenture
Trustee or the Master Owner Trust Trustee be personally liable for any
liabilities, costs or expenses of the Issuer or any Noteholder arising under any
tax law, including without limitation, federal, state or local income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect thereto arising from a failure to comply therewith).
Section 8.16 REPRESENTATIONS AND COVENANTS OF THE INDENTURE TRUSTEE.
The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New
York;
(ii) The Indenture Trustee has full power and authority
to deliver and perform this Indenture and has taken all necessary
action to authorize the execution, delivery and performance by it of
this Indenture and the other Issuer Documents to which it is a party;
and
(iii) Each of this Indenture and other Issuer Documents to
which it is a party has been duly executed and delivered by the
Indenture Trustee and constitutes its legal, valid and binding
obligation in accordance with its terms.
Section 8.17 CUSTODY OF THE COLLATERAL. The Collateral Certificate
shall be registered in the name of the Indenture Trustee and shall be delivered
to and held by the Indenture Trustee in the State of New York separate and apart
from all other property held by the Indenture Trustee. The Indenture Trustee
shall hold such of the Collateral as constitutes an Eligible Investment in
accordance with SECTION 4.03(c). All other Collateral that is not described in
the preceding two sentences (i) that constitutes investment property shall be
held by the Indenture Trustee through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (A) such
investment property at all times shall be credited to a securities account of
the Indenture Trustee, (B) all property credited to such securities account
shall be treated as a financial asset, (C) such securities intermediary shall
treat the Indenture Trustee as entitled to exercise the rights that comprise
each financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other than the
Indenture Trustee to comply with entitlement orders originated by any person or
entity other than the Indenture Trustee, (F) such securities account and all
property credited thereto shall not be subject to any lien, security interest,
right of set-off, or encumbrance in favor of such securities intermediary or
anyone claiming through such securities intermediary (other than the Indenture
Trustee), and (G) such agreement between such
57
securities intermediary and the Indenture Trustee shall be governed by the laws
of the State of New York; and (ii) if not described in clause (i) above, shall
be held by the Indenture Trustee in the State of New York separate and apart
from all other property held by the Indenture Trustee. Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not hold any Collateral
through an agent except as expressly permitted by this SECTION 8.17 and SECTION
4.03(c). Each term used in this SECTION 8.17 and defined in the New York UCC
shall have the meaning set forth in the New York UCC.
Section 8.18 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Collateral, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Noteholders and (only to the extent expressly provided herein) the Master Owner
Trust Certificateholders, such title to the Collateral, or any part thereof,
and, subject to the other provisions of this SECTION 8.18, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under SECTION 8.09 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under SECTION 8.10.
(b) Every 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 Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture 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 Indenture 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 Indenture 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 Collateral 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 Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee 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 Indenture
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
58
refer to this Indenture and the conditions of this ARTICLE VIII. 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 Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee, 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 Indenture 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 Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER
AND MASTER OWNER TRUST BENEFICIARY
Section 9.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF NOTEHOLDERS. The Issuer will furnish or cause to be furnished to the
Indenture Trustee:
(a) not more than fifteen (15) days after each Note Record Date,
in each year in such form as the Indenture Trustee may reasonably require, a
list of the names, addresses and taxpayer identification numbers of the
Registered Noteholders of such series or classes as of such date, PROVIDED,
HOWEVER, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished; and
(b) at such other times as the Indenture Trustee may request in
writing, within thirty (30) days after the receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days before the time such list is furnished, PROVIDED, HOWEVER, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 9.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee will preserve, in as current a form as
is reasonably practicable, the names, addresses and taxpayer identification
numbers of Registered Noteholders contained in the most recent list furnished to
the Indenture Trustee as provided in SECTION 9.01 and the names and addresses of
Registered Noteholders received by the Indenture Trustee in its capacity as Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in SECTION 9.01 upon receipt of a new list so furnished.
(b) If three (3) or more Holders of Notes of any series or class
(hereinafter referred to as "APPLICANTS") apply in writing to the Indenture
Trustee, and furnish to the Indenture Trustee reasonable proof that each such
applicant has owned a Note of such series or class for a period of at least six
(6) months preceding the date of such application, and such application
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states that the applicants desire to communicate with other Holders of Notes of
such series or class or with the Holders of all Notes with respect to their
rights under this Indenture or under such Notes and is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Indenture Trustee will, within five (5) Business Days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Indenture Trustee in accordance with
SECTION 9.02(a), or
(ii) inform such applicants as to the approximate number
of Holders of Notes of such series or class or all Notes, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Indenture Trustee in accordance with SECTION
9.02(a), and as to the approximate cost of mailing to such Noteholders
the form of proxy or other communication, if any, specified in such
application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Holder of a Registered Note of such
series or class or to all Registered Noteholders, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Indenture Trustee in accordance with SECTION 9.02(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Indenture Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within five (5) days after such tender, the Indenture Trustee
shall mail to such applicants and file with the Commission, together with a copy
of the material to be mailed, a written statement to the effect that, in the
opinion of the Indenture Trustee, such mailing would be contrary to the best
interests of the Holders of Notes of such series or class or all Noteholders, as
the case may be, or would be in violation of applicable law. Such written
statement will specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Indenture Trustee will mail copies of such material to all Registered
Noteholders of such series or class or all Registered Noteholders, as the case
may be, with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Indenture Trustee will be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Issuer and the Indenture Trustee that neither the Issuer nor the
Indenture Trustee will be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Notes in
accordance with SECTION 9.02(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
SECTION 9.02(b).
Section 9.03 REPORTS BY INDENTURE TRUSTEE.
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(a) The term "REPORTING DATE" as used in this Section means
February 1. Within sixty (60) days after the reporting date in each year,
beginning in 200_, the Indenture Trustee will transmit to Noteholders, in the
manner and to the extent provided in Section 3.13(c) of the Trust Indenture Act,
a brief report dated as of such reporting date if required by Section 3.13(a) of
the Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the
Indenture Trustee will mail each year to all Registered Noteholders, with a copy
to the Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as
trustee under this Indenture;
(ii) any amounts advanced by the Indenture Trustee under
this Indenture;
(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the
Indenture Trustee's individual capacity;
(iv) the property and funds physically held by the
Indenture Trustee as Indenture Trustee;
(v) any release or release and substitution of
Collateral subject to the lien of this Indenture which has not
previously been reported; and
(vi) any action taken by the Indenture Trustee that
materially affects the Notes and that has not previously been
reported.
(c) The Indenture Trustee will comply with Sections 3.13(b) and
3.13(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Indenture Trustee when the Notes are admitted to trading
on any stock exchange or delisted therefrom.
Section 9.04 MEETINGS OF NOTEHOLDERS; AMENDMENTS AND WAIVERS.
(a) Except for any consent that must be given by the Holders of
each Outstanding Note affected or any action to be taken by the Issuer as holder
of the Collateral Certificate, any resolution presented at any meeting at which
a quorum is present may be adopted by the affirmative vote of the Majority
Holders of that series or class, as the case may be. For any vote, request,
demand, authorization, direction, notice, consent, waiver or other action
provided by the Series Supplement to be given or taken by the holder of the
Collateral Certificate, any resolution presented at any meeting at which the
Majority Holders of all Outstanding Notes is present may be adopted by the
affirmative vote of the Majority Holders of all Outstanding Notes. However, any
resolution with respect to any consent, waiver, request, demand, notice,
authorization,
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direction or other action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Principal Amount of Outstanding
Notes of a series or class or all Notes may be adopted at any meeting at which a
quorum is present only by the affirmative vote of the Holders of not less than
the specified percentage in aggregate Outstanding Principal Amount of the
Outstanding Notes of that series or class or all Outstanding Notes, as the case
may be. Any resolution passed or decision taken at any meeting of Noteholders
duly held in accordance with this Indenture will be binding on all Noteholders
of the affected series or class.
(b) The quorum at any meeting will be persons holding or
representing the Majority Holders of a series or class or all Notes, as the case
may be; provided, however, that if any action is to be taken at that meeting
concerning a consent, waiver, request, demand, notice, authorization, direction
or other action that may be given by the Holders of not less than a specified
percentage in aggregate Outstanding Principal Amount of the Outstanding Notes of
a series or class or all Notes, as applicable, the persons holding or
representing such specified percentage in aggregate Outstanding Principal Amount
of the Outstanding Notes of such series or class or all Notes will constitute a
quorum.
(c) The ownership of Registered Notes will be proved by the Note
Register. The Ownership of Bearer Notes will be proved as provided in SECTION
1.04(c)(ii).
(d) The Issuer may make reasonable rules for other matters
relating to action by or a meeting of Noteholders not otherwise covered by this
Section.
Section 9.05 REPORTS BY ISSUER TO THE COMMISSION. The Issuer will:
(a) file with the Indenture Trustee, within fifteen (15) days
after the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Indenture Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(c) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by the
Issuer pursuant to clauses (a) and (b) of this
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SECTION 9.05 as may be required by rules and regulations prescribed from time to
time by the Commission.
Section 9.06 REPORTS BY INDENTURE TRUSTEE. The Indenture Trustee
will report to the Issuer with respect to the amount on deposit in the Accounts,
and the identity of the investments included therein, as the Issuer may from
time to time reasonably request which, absent the occurrence of an Event of
Default hereunder, will not occur more often than monthly.
Section 9.07 MONTHLY NOTEHOLDERS' STATEMENT. On each Transfer Date
the Issuer will, in cooperation with the Servicer of the Master Trust, complete
and deliver to the Indenture Trustee and the Master Trust Trustee (with a copy
to each Note Rating Agency ) a Monthly Noteholders' Statement.
Section 9.08 PAYMENT INSTRUCTION TO MASTER TRUST.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the Series Supplement, the Issuer will, in
cooperation with the Servicer of the Master Trust, complete the Payment
Instruction and deliver a copy thereof to the Indenture Trustee and the Master
Trust Trustee.
(b) From time to time, the Issuer will notify the Servicer under
the Series Supplement of the information necessary to be provided by the Issuer
under the Pooling and Servicing Agreement as supplemented by the Series
Supplement to calculate the various amounts required under the Pooling and
Servicing Agreement with respect to the Collateral Certificate.
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 10.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Without the consent of the Holders of any Notes but with prior notice to each
Note Rating Agency, the Issuer and the Indenture Trustee, at any time and from
time to time, upon delivery of the Tax Opinions and upon delivery by the Issuer
to the Indenture Trustee of an Officer's Certificate to the effect that the
Issuer reasonably believes that such amendment will not have a material adverse
effect on the interests of the Noteholders and is not reasonably expected to
have material adverse effect on the interests of the Noteholders at any time in
the future, may amend this Indenture or any Indenture Supplement or enter into
one or more supplemental Indentures hereto or thereto, in form satisfactory to
the Indenture Trustee, for any of the following purposes:
(a) to add to the covenants of the Issuer, or to surrender any
right or power herein conferred upon the Issuer for the benefit of the Holders
of the Notes of any or all series or classes (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series or classes of Notes, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit of
one or more specified series or classes); or
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(b) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or in any
Indenture Supplement, or to make any other provisions with respect to matters or
questions arising under this Indenture; or
(c) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 3.16(a)(2) of the Trust Indenture Act as in effect at the
date as of which this Indenture was executed or any corresponding provision in
any similar federal statute hereafter enacted; or
(d) to establish any form of Note, as provided in ARTICLE II, and
to provide for the issuance of any series or class of Notes as provided in
ARTICLE III and to set forth the terms thereof, and/or to add to the rights of
the Holders of the Notes of any series or class; or
(e) to evidence and provide for the acceptance of appointment by
another corporation as a successor Indenture Trustee hereunder with respect to
one or more series or classes of Notes and to add to or change any of the
provisions of this Indenture as will be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
pursuant to SECTIONS 8.10 AND 8.18; or
(f) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all series or classes (and if such
additional Events of Default are to be in respect of less than all series or
classes of Notes, stating that such Events of Default are expressly being
included solely for the benefit of one or more specified series or classes); or
(g) to provide for the consolidation of the Master Trust and the
Issuer into a single Entity or the transfer of assets in the Master Trust to the
Issuer after the termination of all series of Investor Certificates (other than
the Collateral Certificate); or
(h) if the Collateral Certificate is the only Outstanding
Investor Certificate issued by the Master Trust, to dissolve the Master Trust
and terminate the Pooling and Servicing Agreement, permit the Issuer to 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 amend all documents to reflect the direct
ownership of the Dealer Notes by the Issuer.
Additionally, notwithstanding any provision of this ARTICLE X to the
contrary, this Indenture or any Indenture Supplement may be amended without the
consent of the Indenture Trustee or any of the Noteholders, upon delivery of the
Tax Opinions, for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or any Indenture
Supplement or of modifying in any manner the rights of the Holders of the Notes
under this Indenture or any Indenture Supplement; provided, however, that (i)
the Issuer shall deliver to the Indenture Trustee and the Master Owner Trust
Trustee an Officer's Certificate to the effect that the Issuer reasonably
believes that such amendment will not have a material adverse effect on the
interests of the Noteholders and is not reasonably expected to have a material
adverse effect on the interests of the Noteholders at any time in the future and
(ii) the Note Rating Agencies have provided written confirmation that such
amendment satisfies any Note Rating Agency Condition.
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Section 10.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
With prior notice to each applicable Note Rating Agency and the consent of not
less than 50% in Outstanding Principal Amount of each series of notes affected
by such amendment of this Indenture or any Indenture Supplement or any
supplemental Indenture hereto or thereto, by Act of said Holders delivered to
the Issuer and the Indenture Trustee, the Issuer and the Indenture Trustee, upon
delivery of the Tax Opinions, may enter into an amendment of this Indenture or
such Indenture Supplement for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or any Indenture Supplement or of modifying in any manner the rights of the
Holders of the Notes of each such series or class under this Indenture or any
Indenture Supplement; PROVIDED, HOWEVER, that no such amendment or supplemental
Indenture will, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the scheduled Transfer Date of any payment of interest
on any Note, or change an Expected Principal Payment Date or Legal Final
Maturity Date of any Note;
(b) reduce the Stated Principal Amount of, or the interest rate
on any Note, or change the method of computing the Outstanding Principal Amount
or the Nominal Liquidation Amount in a manner that is adverse to the Holder of
any Note;
(c) reduce the amount of a Discount Note payable upon the
occurrence of an Early Redemption Event or other optional or mandatory
redemption or upon the acceleration of its maturity;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
(e) reduce the percentage in Outstanding Principal Amount of the
Outstanding Notes of any series or class, the consent of whose Holders is
required for any such Indenture Supplement, or the consent of whose Holders is
required for any waiver of compliance with the provisions of this Indenture or
of defaults hereunder and their consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or SECTION 7.15,
except to increase any percentage of Holders required to consent to any such
amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral that secures any class of Notes that is prior to the lien in favor of
the Holders of the Notes of such class;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the applicable
Indenture Supplement;
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
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(j) make any other amendment not permitted by SECTION 10.01.
An amendment of this Indenture or an Indenture Supplement which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
series or class of Notes, or which modifies the rights of the Holders of Notes
of such series or class with respect to such covenant or other provision, will
be deemed not to affect the rights under this Indenture of the Holders of Notes
of any other series or class.
It will not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed amendment or supplemental
Indenture, but it will be sufficient if such Act will approve the substance
thereof.
Promptly after amendment pursuant to this SECTION 10.02 is complete,
the Indenture Trustee shall provide written notice to the Noteholders of such
amendment.
Section 10.03 EXECUTION OF INDENTURE SUPPLEMENTS. In executing or
accepting the additional trusts created by any amendment of this Indenture or
Indenture Supplement or any supplemental Indenture hereto or thereto permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee will be entitled to receive, and (subject to
SECTION 8.01) will be fully protected in relying upon, a Master Owner Trust Tax
Opinion stating that the execution of such amendment or supplemental Indenture
is authorized or permitted by this Indenture and that all conditions precedent
thereto have been satisfied. The Indenture Trustee may, but will not (except to
the extent required in the case of an amendment or supplemental Indenture
entered into under SECTION 10.01(d) or 10.01(f)) be obligated to, enter into any
such amendment or supplemental Indenture which affects the Indenture Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 10.04 EFFECT OF INDENTURE SUPPLEMENTS. Upon the execution of
any amendment of this Indenture or Indenture Supplement or any supplemental
Indenture under this Article, this Indenture will be modified in accordance
therewith with respect to each series or class of Notes affected thereby, or all
Notes, as the case may be, and such amendment or supplemental Indenture will
form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder will be bound
thereby to the extent provided therein.
Section 10.05 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture or Indenture Supplement or any supplemental Indenture executed
pursuant to this Article will conform to the requirements of the Trust Indenture
Act as then in effect.
Section 10.06 REFERENCE IN NOTES TO INDENTURE SUPPLEMENTS. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental Indenture pursuant to this
Article may, and will, if required by the Indenture Trustee, bear a notation in
form approved by the Indenture Trustee as to any matter provided for in such
amendment or supplemental Indenture. If the Issuer will so determine, new Notes
so modified as to conform, in the opinion of the Indenture Trustee and the
Issuer, to any such
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amendment or supplemental Indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
Section 10.07 AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT. By
their acceptance of a Note, the Noteholders acknowledge that the Pooling and
Servicing Agreement may be amended only pursuant to SECTION 13.01 thereof.
For purposes of any vote or consent under the Pooling and Servicing
Agreement or any supplement thereto:
(i) that requires the consent or vote of each Investor
Certificateholder, each Noteholder will be treated as an Investor
Certificateholder under the Pooling and Servicing Agreement and any
related supplement thereto;
(ii) that requires the consent or vote of any series of
Investor Certificates, each series of Notes will be treated as a
series of Investor Certificates under the Pooling and Servicing
Agreement and any related supplement thereto; and
(iii) that requires the consent or vote of any class of
Investor Certificates, each class of Notes will be treated as a class
of Investor Certificates under the Pooling and Servicing Agreement and
any related supplement thereto.
Section 10.08 AMENDMENTS TO THE MASTER OWNER TRUST AGREEMENT. By
their acceptance of a Note, the Noteholders acknowledge that the Trust Agreement
may be amended only pursuant to SECTIONS 8.1 AND 8.2 thereof.
Section 10.09 NOTICE. If the Indenture Trustee, as holder of the
Collateral Certificate for the benefit of the Noteholders, receives a request
for a consent to any amendment, modification, waiver or supplement under this
Indenture, the Pooling and Servicing Agreement, the Master Owner Trust Agreement
or other document contemplated herein, the Indenture Trustee will forthwith
provide notice of such proposed amendment, modification, waiver or supplement,
as provided in this SECTION 10.09, to each Noteholder as of such date that is
entitled to vote on a consent to such matter and to each Note Rating Agency. The
Indenture Trustee will request from such Noteholders directions as to (i)
whether or not the Indenture Trustee should take or refrain from taking any
action which the holder of the Collateral Certificate has the option to direct,
(ii) whether or not to give or execute any waivers, consents, amendments,
modifications or supplements as a holder of such Collateral Certificate and
(iii) the casting of any vote with respect to the Collateral Certificate or the
Noteholders of a series or class if a vote has been called for with respect
thereto; provided, that, in directing any action or casting any vote or giving
any consent as the holder of the Collateral Certificate, the Indenture Trustee
will vote or consent with respect to such Collateral Certificate the applicable
series or class, as the case may be, in the same proportion as the Notes were
actually voted by Holders thereof as notified by such Noteholders to the
Indenture Trustee at least two (2) Business Days before the Indenture Trustee
takes such action or casts such vote or gives such consent.
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ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER AND THE
PAYING AGENT
Section 11.01 PAYMENT OF PRINCIPAL AND INTEREST. With respect to each
series or class of Notes, the Issuer will duly and punctually pay the principal
of and interest on such Notes in accordance with their terms, this Indenture and
any applicable Indenture Supplement and will duly comply with all the other
terms, agreements and conditions contained in, or made in this Indenture and any
applicable Indenture Supplement for the benefit of, the Notes of such series or
class in all material respects.
Section 11.02 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain an office, agency or Paying Agent in each Place of Payment where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Issuer will
fail to maintain such office or agency or will fail to furnish the Indenture
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Indenture Trustee Corporate Trust Office of
the Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Section 11.03 MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. The Paying
Agent, on behalf of the Indenture Trustee, will make distributions to
Noteholders from the Deposit Accounts or other applicable Account pursuant to
the provisions of ARTICLE V of this Indenture or any Indenture Supplement and
will report the amounts of such distributions to the Indenture Trustee. Any
Paying Agent will have the revocable power to withdraw funds from the Deposit
Accounts or other applicable Account for the purpose of making the distributions
referred to above. The Indenture Trustee may revoke such power and remove the
Paying Agent if the Indenture Trustee determines in its sole discretion that the
Paying Agent has failed to perform its obligations under this Indenture or any
Indenture Supplement in any material respect. The Paying Agent upon removal will
return all funds in its possession to the Indenture Trustee.
The Issuer will cause each Paying Agent (other than the Indenture
Trustee) for any series or class of Notes to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent will agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it so
agrees), subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series or class in trust for the benefit of the
Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor upon
the Notes of such series or class) in the making of any such payment of
principal or interest on the Notes of such series or class;
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(c) if such Paying Agent is not the Indenture Trustee, at any
time during the continuance of any such default, upon the written request of the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying
Agent is not the Indenture Trustee, forthwith pay to the Indenture Trustee all
sums held by it in trust for the payment of Notes if at any time it ceases to
meet the standards described in this Section required to be met by a Paying
Agent at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code
with respect to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series or class
of Notes or for any other purpose, pay, or by an Officer's Certificate direct
any Paying Agent to pay, to the Indenture Trustee all sums held in trust by the
Issuer or such Paying Agent in respect of each and every series or class of
Notes as to which it seeks to discharge this Indenture or, if for any other
purpose, all sums so held in trust by the Issuer in respect of all Notes, such
sums to be held by the Indenture Trustee upon the same trusts as those upon
which such sums were held by the Issuer or such Paying Agent; and, upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent will be
released from all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of or
interest on any Note of any series or class and remaining unclaimed for two
years after such principal or interest has become due and payable will be paid
to the Issuer upon request in an Officer's Certificate, or (if then held by the
Issuer) will be discharged from such trust; and the Holder of such Note will
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money, and all liability of the Issuer as trustee
thereof, will thereupon cease. The Indenture Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer give notice to the Holders of the Notes as to which the money to be
repaid was held in trust, as provided in SECTION 10.09, a notice that such funds
remain unclaimed and that, after a date specified in the notice, which will not
be less than thirty (30) days from the date on which the notice was first mailed
or published to the Holders of the Notes as to which the money to be repaid was
held in trust, any unclaimed balance of such funds then remaining will be paid
to the Issuer free of the trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act as Paying
Agent for the Notes on its behalf. The Issuer may at any time and from time to
time authorize one or more Persons (including the Indenture Trustee) to act as
Paying Agent in addition to or in place of the Indenture Trustee with respect to
any series or class of Notes issued under this Indenture.
Each Paying Agent will at all times be subject to the eligibility
criteria applicable to the Indenture Trustee specified in SECTIONS 8.08 AND
8.09.
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Section 11.04 STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Indenture Trustee and the Note Rating Agencies, on or before April 15th of
each year or within ten Business Days of the Issuer's discovery of an event
discussed in this Section 11.04, beginning in 2004, a written statement signed
by an Issuer Authorized Officer stating that:
(a) in the course of the performance by the signer of his duties
as officer of the Issuer he would normally obtain knowledge of a breach of any
of the Issuer's covenants contained in this Agreement; and
(b) whether he has obtained knowledge of any such breach of
covenant, and, if so, specifying each such breach of covenant of which the
signer has knowledge and the nature thereof.
Section 11.05 LEGAL EXISTENCE. The Issuer will do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence, and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture, the Notes, the Collateral and
each other related instrument or agreement.
Section 11.06 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 11.07 COMPLIANCE WITH LAWS. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes or this Indenture.
Section 11.08 NOTICE OF EVENTS OF DEFAULT. The Issuer agrees to give
the Indenture Trustee and the Note Rating Agencies prompt written notice of each
Event of Default hereunder and each default on the part of the Master Trust or
the Seller of its respective obligations under the Pooling and Servicing
Agreement and any default of a Enhancement Provider.
Section 11.09 CERTAIN NEGATIVE COVENANTS. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts withheld in
good faith from such payments under the Internal Revenue Code or other
applicable tax law) or assert any claim against any present or former Noteholder
by reason of the payment of any taxes levied or assessed on any part of the
Collateral;
(b) sell, transfer, exchange, or otherwise dispose of any part of
the Collateral unless directed to do so by the Indenture Trustee, except as
expressly permitted by this Indenture, any Indenture Supplement, or the Trust
Agreement;
(c) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Indenture Trustee, the Noteholders
and any applicable Enhancement Provider created by this Indenture to be amended,
hypothecated, subordinated, terminated or
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discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby;
(d) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Indenture
Trustee, the Noteholders and any applicable Enhancement Provider created by this
Indenture) to be created on or extend to or otherwise arise upon or burden the
Collateral or any part thereof or any interest therein or the proceeds thereof;
or
(e) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this Indenture
not to constitute a valid first priority security interest (other than with
respect to a tax, mechanics, or similar lien) in the Collateral; or
(f) voluntarily dissolve or liquidate in whole or in part.
Section 11.10 NO OTHER BUSINESS. The Issuer will not engage in any
business other than as permitted under the Master Owner Trust Agreement.
Section 11.11 NO BORROWING. The Issuer will not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for borrowed money except for the Notes.
Section 11.12 RULE 144A INFORMATION. For so long as any of the Notes
of any series or class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Exchange Act, the Issuer agrees to provide to any
Noteholder of such series or class and to any prospective purchaser of Notes
designated by such Noteholder, upon the request of such Noteholder or
prospective purchaser, any information required to be provided to such Holder or
prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4)
under the Securities Exchange Act.
Section 11.13 PERFORMANCE OF OBLIGATIONS.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Master Owner Trust Agreement or such
other instrument or agreement.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Indenture
Supplement, the Master Owner Trust Agreement and in the instruments and
agreements relating to the Collateral, including but not limited to filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by the terms of this Indenture and the Master Owner Trust
Agreement in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided herein or therein, the Issuer
shall not waive, amend, modify, supplement or terminate this Indenture, any
Indenture Supplement or the Master Owner Trust Agreement or any
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provision thereof without the consent of the Holders of a majority of the
Outstanding Amount of the Notes of each adversely affected series or class. The
Issuer may contract with other Persons to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person identified
to the Indenture Trustee in an Officer's Certificate of the Issuer shall be
deemed to be action taken by the Issuer. Initially, the Issuer has contracted
with the Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and a majority in Outstanding
Amount of the Notes of each affected series or class, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in the Issuer Documents), or waive
timely performance or observance by the Servicer of its obligations under the
Pooling and Servicing Agreement; and (ii) that any such amendment, modification,
waiver, supplement, termination or surrender shall not (A) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on the Dealer Notes or distributions that are required to be made for
the benefit of the Noteholders or (B) reduce the aforesaid percentage of the
Notes that is required to consent to any such amendment, modification, waiver,
supplement, termination or surrender without the consent of the Holders of all
the Outstanding Notes. If any such amendment, modification, waiver, supplement,
termination or surrender shall be so consented to by the Indenture Trustee and
such Noteholders, the Issuer agrees to execute and deliver, in its own name and
at its own expense, such agreements, instruments, consents and other documents
as are necessary or appropriate in the circumstances.
Section 11.14 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (i) shall be a Person organized
and existing under the laws of the United States of America or any
state or the District of Columbia, (ii) shall not be subject to
regulation as an "investment company" under the Investment Company Act
and (iii) shall expressly assume, by an Indenture Supplement, executed
and delivered to the Indenture Trustee, in a form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance of every covenant of
this Indenture on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction,
no Event of Default or Early Redemption Event shall have occurred and
be continuing;
(iii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and a Master Owner Trust Opinion of
Counsel each stating
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that (i) such consolidation or merger and such Indenture Supplement
comply with this SECTION 11.14, (ii) all conditions precedent in this
SECTION 11.14 relating to such transaction have been complied with
(including any filing required by the Securities Exchange Act), and
(iii) such Indenture Supplement is duly authorized, executed and
delivered and is valid, binding and enforceable against such person;
(iv) the Issuer shall have received written confirmation
from each Note Rating Agency that any Note Rating Agency Condition is
satisfied with respect to any Outstanding Notes as a result of such
consolidation or merger;
(v) the Issuer shall have received a Master Owner Trust
Tax Opinion (and shall have delivered copies thereof to the Indenture
Trustee);
(vi) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
and
(vii) such action shall not be contrary to the status of
the Issuer as a qualified special purpose entity under existing
accounting literature.
PROVIDED, HOWEVER, that the preceding SUBSECTION (a) shall not apply
to the consolidation or merger of the Issuer and the Master Trust.
(b) The Issuer shall not convey or transfer any of its properties
or assets, including those included in the Collateral, substantially as an
entirety to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted (the "ACQUIRING PERSON") shall (A) be a
United States citizen or a Person organized and existing under the
laws of the United States of America or any state, or the District of
Columbia, (B) expressly assume, by an Indenture Supplement, executed
and delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such Indenture Supplement that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) unless otherwise provided
in such Indenture Supplement, expressly agree to indemnify, defend and
hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes, (E)
expressly agree by means of such Indenture Supplement that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person)
required by the Securities Exchange Act in connection with the Notes
and (F) not be an "INVESTMENT COMPANY" as defined in the Investment
Company Act;
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(ii) immediately after giving effect to such transaction,
no Event of Default or Early Redemption Event shall have occurred and
be continuing;
(iii) the Issuer shall have received written confirmation
from each Note Rating Agency that any Note Rating Agency Condition is
satisfied with respect to any Outstanding Notes as a result of such
conveyance or transfer;
(iv) the Issuer shall have received a Master Owner Trust
Tax Opinion (and shall have delivered copies thereof to the Indenture
Trustee);
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and a Master Owner Trust Opinion of
Counsel each stating that such conveyance or transfer and such
Indenture Supplement comply with this SECTION 11.14, the Indenture
Supplement is duly authorized, executed and delivered and is valid,
binding and enforceable against the Acquiring Person and that all
conditions precedent herein provided for relating to such transaction
have been complied with (including any filing required by the
Securities Exchange Act).
Section 11.15 SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the Issuer
substantially as an entirety in accordance with SECTION 11.14 hereof, the Person
formed by or surviving such consolidation or merger (if other than the Issuer)
or the Person to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein. In the event of any such conveyance or transfer, the Person named
as the Issuer in the first paragraph of this Indenture or any successor which
shall theretofore have become such in the manner prescribed in this SECTION
11.15 shall be released from its obligations under this Indenture as issued
immediately upon the effectiveness of such conveyance or transfer, provided that
the Issuer shall not be released from any obligations or liabilities to the
Indenture Trustee or the Noteholders arising prior to such effectiveness. And
such Indenture Supplement is duly authorized, executed and delivered and is
valid, binding and enforceable against such Acquiring Person.
Section 11.16 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the Master Owner Trust Agreement,
the Issuer shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
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Section 11.17 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 11.18 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Master Owner Trust Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or security
or (iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, (x)
distributions as contemplated by, and to the extent funds are available for such
purpose under, the Issuer Documents and (y) payments to the Indenture Trustee
pursuant to SECTION 8.07 hereof. The Issuer will not, directly or indirectly,
make payments to or distributions from the Deposit Accounts except in accordance
with this Indenture or any Indenture Supplement.
Section 11.19 REPRESENTATIONS AND WARRANTIES AS TO THE SECURITY
INTEREST OF THE INDENTURE TRUSTEE IN THE COLLATERAL CERTIFICATE. The Issuer
makes the following representations and warranties to the Indenture Trustee. The
representations and warranties speak as of the execution and delivery of this
Indenture and as of the issuance date of each series of Notes and shall survive
the pledge of the Collateral Certificate to the Indenture Trustee pursuant to
this Indenture.
(a) This Indenture creates a valid and continuing security
interest (as defined in the UCC) in the Collateral Certificate in favor of the
Indenture Trustee, which security interest is prior to all other liens and
security interests, and is enforceable as such as against creditors of and
purchasers from the Issuer.
(b) The Collateral Certificate constitutes a "certificated
security" within the meaning of Article 8 of the UCC.
(c) The Issuer owns and has good and marketable title to the
Collateral Certificate free and clear of any lien, claim or encumbrance of any
Person (other than the Indenture Trustee).
(d) The Issuer has caused or will have caused, within ten days
after the date of execution of this Indenture, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the Collateral Certificate granted to the Issuer hereunder.
(e) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral
Certificate. The Issuer has not authorized the filing of and is not aware of any
financing statements against the Issuer that include a description of collateral
covering the Collateral Certificate other than any financing statement relating
to the security interest granted to the Indenture Trustee hereunder or that has
been terminated. The Issuer is not aware of any judgment or tax lien filings
against it.
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(f) The Issuer has caused the Collateral Certificate to be
registered in the name of the Indenture Trustee and has delivered the Collateral
Certificate to the Indenture Trustee.
Section 11.20 DERIVATIVE INSTRUMENTS. If the Issuer enters into any
interest rate swap or derivative instrument (each, a "DERIVATIVE INSTRUMENT") in
connection with its issuance of a series of Notes, such derivative instrument
shall be entered into at the time of issuance of such series of Notes, at the
time of issuance shall not have a notional amount in excess of the Stated
Principal Amount of such Notes and is not thereafter expected to exceed such
Stated Principal Amount Outstanding from time to time, shall not require the
Issuer to make discretionary decisions (other than decisions relating to the
servicing of the Dealer Notes) and shall have characteristics that relate to and
are intended to hedge (partly or fully) against some risk or risks related to
such series of Notes or the Dealer Notes or Eligible Investments.
Section 11.21 DERIVATIVE FINANCIAL INSTRUMENTS.
The Issuer shall not hold any derivative financial instrument unless
such derivative financial instrument complies with the requirements of paragraph
40 of Statement of Financial Accounting Standards No. 140 issued by the
Financial Accounting Standards Board, including any interpretations thereof or
any successor regulations issued by the Financial Accounting Standards Board.
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 12.01 APPLICABILITY OF ARTICLE. Unless otherwise specified in
the applicable Indenture Supplement related to a series or class of Notes,
pursuant to the terms of this Article, the Issuer will redeem and pay, provided
that funds are available, each affected series or class of Notes upon the
occurrence of any Early Redemption Event. Unless otherwise specified in the
applicable Indenture Supplement relating to a series or class of Notes, or in
the form of Notes for such series or class, the following are "EARLY REDEMPTION
EVENTS:"
(a) the occurrence of any Early Amortization Event as defined in
the Pooling and Servicing Agreement or as described in the Series Supplement;
(b) the Issuer becomes an investment company within the meaning
of the Investment Company Act;
(c) with respect to any series or class of Notes, any additional
Early Redemption Event specified in the Indenture Supplement for such series or
class as applying to such series or class.
The redemption price of a class of Notes so redeemed will equal the
Outstanding Principal Amount of such class, plus accrued interest and unpaid, or
in the case of Discount Notes principal accreted but unpaid on those Notes, to
but excluding the date of redemption, the payment of which will be subject to
ARTICLE V, ARTICLE VII and the allocations, deposits and payments sections of
the related Indenture Supplement.
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If the Issuer is unable to pay the redemption price in full on the
Payment Date following the end of the Due Period in which the Early Redemption
Event occurs, monthly payments on such class of Notes will thereafter be made on
each following Business Day until the Outstanding Principal Amount of such
class, plus all accrued and unpaid interest, is paid in full or the Legal Final
Maturity Date occurs, whichever is earlier, subject to ARTICLE V, ARTICLE VII
and the allocations, deposits and payments provisions of the related Indenture
Supplement. Any funds in any Supplemental Account for a redeemed class will be
applied to make the principal and interest payments on that class on the
redemption date, subject to ARTICLE V, ARTICLE VII and the allocations, deposits
and payments sections of the related Indenture Supplement. Principal payments on
redeemed classes will be made in accordance with the related Indenture
Supplement.
Section 12.02 NOTICE. Promptly after the occurrence of any Early
Redemption Event, the Issuer will notify the Indenture Trustee and the Note
Rating Agencies in writing of the identity, Stated Principal Amount and
Outstanding Principal Amount of the affected series or class of Notes to be
redeemed. Notice of redemption will promptly be given as provided in SECTION
10.09. All notices of redemption will state (a) the date on which the redemption
of the applicable series or class of Notes pursuant to this Article will begin,
which will be the Payment Date next following the end of the Due Period in which
the applicable Early Redemption Event occurs, (b) the redemption price for such
series or class of Notes, which will be equal to the Outstanding Principal
Amount of such series or class plus interest accrued or principal accreted and
unpaid (if any), the payment of which will be subject to ARTICLE V, ARTICLE VII
and the allocations, deposits and payments provisions of the related Indenture
Supplement and (c) the series or class of Notes to be redeemed pursuant to this
Article.
ARTICLE XIII
COLLATERAL
Section 13.01 RECORDING, ETC.
(a) The Issuer intends the Security Interest granted pursuant to
this Indenture in favor of the Indenture Trustee to be prior to all other liens
in respect of the Collateral. Subject to SECTION 13.03, the Issuer will take all
actions necessary to obtain and maintain a perfected lien on and security
interest in the Collateral in favor of the Indenture Trustee. The Issuer will
from time to time execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, all as prepared by the Issuer, and will
take such other action necessary or advisable to:
(i) grant a Security Interest more effectively in all or
any portion of the Collateral;
(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity
of any grant made or to be made by this Indenture;
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(iv) enforce the Collateral Certificate, the Enhancement
Agreements and each other instrument or agreement included in the
Collateral;
(v) preserve and defend title to the Collateral and the
rights of the Indenture Trustee in such Collateral against the claims
of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon
the Collateral when due.
(b) The Issuer will from time to time promptly pay and discharge
all financing and continuation statement recording and/or filing fees, charges
and taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer hereby designates the Indenture
Trustee its agent and attorney-in-fact to execute upon the Issuer's failure to
do so, any financing statement, continuation statement or other instrument
required by the Indenture Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or
(a)(iii):
(i) The Issuer will cause this Indenture, all amendments
and supplements hereto and/or all financing statements and
continuation statements and any other necessary documents covering the
Indenture Trustee's right, title and interest to the Collateral to be
promptly recorded, registered and filed, and at all times to be kept,
recorded, registered and filed, all in such manner and in such places
as may be required by law fully to preserve and protect the right,
title and interest of the Indenture Trustee to all property comprising
the Collateral. The Issuer will deliver to the Indenture Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following
such recording, registration or filing.
(ii) Within 30 days after the Issuer makes any change in
its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with
paragraph (d)(i) seriously misleading within the meaning of SECTION
9-507 or 9-508 (or any comparable provision) of the UCC, the Issuer
will give the Indenture Trustee notice of any such change and will
file such financing statements or amendments as may be necessary to
continue the perfection of the Indenture Trustee's security interest
in the Collateral.
(d) The Issuer will give the Indenture Trustee prompt notice of
any relocation of its chief executive office, place of business or State of
location, and any change in the jurisdiction of its organization, and whether,
as a result of such relocation or change, the applicable provision of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and will file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of the Indenture Trustee's security interest in the Collateral.
The Issuer will at all times maintain its chief executive office within the
United States.
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(e) The duty of the Indenture Trustee to execute any instrument
required pursuant to this Section will arise only if the Indenture Trustee has
knowledge of the type described in SECTION 7.01(c) of any default of the Issuer
in complying with the provisions of this Section.
Section 13.02 TRUST INDENTURE ACT REQUIREMENTS. The release of any
Collateral from the lien created by this Indenture or the release of, in whole
or in part, such liens, will not be deemed to impair the Security Interests in
contravention of the provisions hereof if and to the extent the Collateral or
liens are released pursuant to the terms hereof. The Indenture Trustee and each
of the Noteholders and any applicable Enhancement Provider acknowledge that a
release of Collateral or liens in accordance with the terms hereof will not be
deemed for any purpose to be an impairment of the Security Interests in
contravention of the terms of this Indenture. To the extent applicable, without
limitation, the Issuer and each other obligor on the Notes will cause Trust
Indenture Act Section 3.14(d) relating to the release of property or securities
from the liens hereof to be complied with. Any certificate or opinion required
by Trust Indenture Act Section 3.14(d) may be made by an officer of the
appropriate obligor, except in cases in which Trust Indenture Act Section
3.14(d) requires that such certificate or opinion be made by an independent
person.
Section 13.03 SUITS TO PROTECT THE COLLATERAL. Subject to the
provisions of this Indenture, the Indenture Trustee will have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of this Indenture, and such suits and proceedings as the Indenture
Trustee may deem expedient to preserve or protect the interests of the
Noteholders and any applicable Enhancement Provider and the interests of the
Indenture Trustee and the Holders of the Notes in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the Security
Interests or be prejudicial to the interests of the Holders of the Notes or the
Indenture Trustee). No counterparties to a Enhancement Agreement may direct the
Indenture Trustee to enforce the Security Interest. Each Enhancement Provider's
rights consist solely of the right to receive collections allocated for its
benefit pursuant to the related Indenture Supplement.
Section 13.04 PURCHASER PROTECTED. In no event will any purchaser in
good faith of any property purported to be released hereunder be bound to
ascertain the authority of the Indenture Trustee to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions
hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor will any
purchaser or other transferee of any property or rights permitted by this
Article to be sold be under any obligation to ascertain or inquire into the
authority of the Issuer or any other obligor, as applicable, to make any such
sale or other transfer.
Section 13.05 POWERS EXERCISABLE BY RECEIVER OR TRUSTEE. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the
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Issuer or any other obligor, as applicable, or of any officer or officers
thereof required by the provisions of this Article.
Section 13.06 DETERMINATIONS RELATING TO COLLATERAL. In the event (i)
the Indenture Trustee shall receive any written request from the Issuer or any
other obligor for consent or approval with respect to any matter or thing
relating to any Collateral or the Issuer's or any other obligor's obligations
with respect thereto or (ii) there shall be due to or from the Indenture Trustee
under the provisions hereof any performance or the delivery of any instrument or
(iii) the Indenture Trustee shall become aware of any nonperformance by the
Issuer or any other obligor of any covenant or any breach of any representation
or warranty of the Issuer or any other obligor set forth in this Indenture,
then, in each such event, the Indenture Trustee shall be entitled to hire
experts, consultants, agents and attorneys to advise the Indenture Trustee on
the manner in which the Indenture Trustee should respond to such request or
render any requested performance or response to such nonperformance or breach
(the expenses of which will be reimbursed to the Agent and the Indenture Trustee
pursuant to SECTION 8.07). The Indenture Trustee will be fully protected in the
taking of any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by the Majority Holders of the Outstanding Notes.
Section 13.07 RELEASE OF COLLATERAL.
(a) Subject to the payment of its fees and expenses pursuant to
SECTION 8.07, the Indenture Trustee will, at the request of the Issuer or when
otherwise required by the provisions of this Indenture, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances which are
not inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article will be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that the
Issuer's obligations under this Indenture have been satisfied and discharged by
complying with the provisions of this Article, the Indenture Trustee will (i)
execute and deliver such releases, termination statements and other instruments
(in recordable form, where appropriate) as the Issuer or any other obligor, as
applicable, may reasonably request evidencing the termination of the Security
Interests created by this Indenture (ii) to the extent applicable, provide a
certificate or opinion required by Trust Indenture Act Section 3.14(d) and (iii)
not to be deemed to hold the Security Interests for the benefit of the Indenture
Trustee, the Noteholders and any applicable Enhancement Provider.
(c) NFSC and the Noteholders will be entitled to receive at least
ten (10) days written notice when the Indenture Trustee proposes to take any
action pursuant to clause (a), accompanied by copies of any instruments
involved, and the Indenture Trustee will also be entitled to require, as a
condition to such action, a Master Owner Trust Opinion of Counsel, stating the
legal effect of any such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the taking of such action
have been complied with, and such action does not materially and adversely
impair security for the Notes or the rights of Noteholders in contravention of
the provisions of the Indenture. Counsel rendering any such
80
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
Section 13.08 CERTAIN ACTIONS BY INDENTURE TRUSTEE. Any action taken
by the Indenture Trustee pursuant to this Article in respect of the release of
Collateral will be taken by the Indenture Trustee as its interest in such
Collateral may appear, and no provision of this Article is intended to, or will,
excuse compliance with any provision hereof.
Section 13.09 OPINIONS AS TO COLLATERAL.
(a) On the Effective Date and each issuance date for a new
series, the Issuer will furnish to the Indenture Trustee a Master Owner Trust
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any Indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and maintain
the perfection of the Security Interest granted by this Indenture in favor of
the Indenture Trustee and reciting the details of such action, or stating that,
in the opinion of such counsel, no such action is necessary to make such lien
and security interest perfected.
(b) On or before April 15th in each calendar year, beginning in
2004, the Issuer will furnish to the Indenture Trustee a Master Owner Trust
Opinion of Counsel with respect to each Uniform Commercial Code financing
statement which has been filed by the Issuer either stating that, (i) in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any Indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements as
is necessary to maintain the first priority lien and Security Interest created
by this Indenture and reciting the details of such action or (ii) in the opinion
of such counsel no such action is necessary to maintain such lien and Security
Interest. Such Master Owner Trust Opinion of Counsel will also describe the
recording, filing, re-recording and refiling of this Indenture, any Indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and Security Interest
of this Indenture until April 15th in the following calendar year.
Section 13.10 DELEGATION OF DUTIES. The Issuer may contract with or
appoint other Persons (including NFSC and its Affiliates) to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate will
be deemed to be action taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
Section 14.01 NO PETITION. The Indenture Trustee, by entering into
this Indenture, each Enhancement Provider, by designating that the obligations
of the Issuer pursuant to the applicable Enhancement Agreement are secured by
the Collateral, and each Noteholder, by
81
accepting a Note, agrees that it will not at any time institute against NFSC,
the Master Trust or the Issuer, or join in any institution against NFSC, the
Master Trust or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any Enhancement Agreement.
The foregoing shall not limit the right of the Indenture Trustee to file in or
otherwise take any action with respect to any insolvency proceeding that was
instituted against the Issuer by any Person other than the Indenture Trustee.
Section 14.02 MASTER OWNER TRUST OBLIGATIONS. No recourse may be
taken, directly or indirectly, with respect to the obligations of the Issuer on
the Notes or under this Indenture or any certificate or other writing delivered
in connection herewith or therewith, against (i) the Master Owner Trust Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Master Owner Trust Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer or the Master Owner Trust
Trustee or of any successor or assign of the Master Owner Trust Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Master Owner Trust Trustee has no such obligations in
its individual capacity).
Section 14.03 LIMITATIONS ON LIABILITY.
(a) It is expressly understood and agreed by the parties hereto
that (i) this Indenture is executed and delivered by the Master Owner Trust
Beneficiary not individually or personally but solely as Master Owner Trust
Beneficiary, in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Issuer is made and intended not as a personal representation,
undertaking or agreement by the Master Owner Trust Beneficiary but is made and
intended for the purpose of binding only the Issuer, (iii) nothing herein
contained will be construed as creating any liability on the Master Owner Trust
Beneficiary individually or personally, to perform any covenant of the Issuer
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any Person claiming by,
through or under them and (iv) under no circumstances will the Master Owner
Trust Beneficiary be personally liable for the payment of any indebtedness or
expenses of the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Indenture or any related documents.
(b) None of the Indenture Trustee, the Master Owner Trust
Trustee, NFSC or any other beneficiary of the Issuer or any of their respective
officers, directors, employers or agents will have any liability with respect to
this Indenture, and recourse may be had solely to the Collateral pledged to
secure the Notes issued by Navistar Financial Dealer Note Master Owner Trust.
Section 14.04 TAX TREATMENT. The Issuer and the Noteholders agree
that the Notes are intended to be debt of NFSC for federal, state and local
income, franchise and single business tax purposes and agree to treat the Notes
accordingly for all such purposes, unless otherwise required by a taxing
authority.
82
Section 14.05 ACTIONS TAKEN BY THE ISSUER. Any and all actions that
are to be taken by the Issuer may be taken by either the Master Owner Trust
Beneficiary or the Master Owner Trust Trustee on behalf of the Issuer.
Section 14.06 ALTERNATE PAYMENT PROVISIONS. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer,
with the written consent of the Indenture Trustee, may enter into any agreement
with any Holder of a Note providing for a method of payment or notice that is
different from the methods provided for in this Indenture for such payments or
notices. The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments or notices, as
applicable, to be made in accordance with such agreements.
Section 14.07 TERMINATION OF ISSUER. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby (other
than the obligation of the Indenture Trustee to make payments to Noteholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in SECTION 14.08(b), as provided in the Master Owner Trust Agreement.
Section 14.08 FINAL DISTRIBUTION.
(a) The Servicer shall give the Indenture Trustee at least thirty
(30) days prior written notice of the Payment Date on which the Noteholders of
any series or class may surrender their Notes for payment of the final
distribution on and cancellation of such Notes. Not later than the fifth day of
the month or such other date specified in an Indenture Supplement in which the
final distribution in respect of such Series or Class is payable to Noteholders,
the Indenture Trustee shall provide notice to Noteholders of such series or
class specifying (i) the date upon which final payment of such series or class
will be made upon presentation and surrender of Notes of such series or class at
the office or offices therein designated, (ii) the amount of any such final
payment and (iii) that the Note Record Date otherwise applicable to such Payment
Date is not applicable, payments being made only upon presentation and surrender
of such Notes at the office or offices therein specified (which, in the case of
Bearer Notes, shall be outside the United States). The Indenture Trustee shall
give such notice to the Note Registrar and the Paying Agent at the time such
notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of
any series or class (or the termination of the Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in any Account allocated
to such Noteholders shall continue to be held in trust for the benefit of such
Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds
to such Noteholders upon surrender of their Notes, if certificated. In the event
that all such Noteholders shall not surrender their Notes for cancellation
within six (6) months after the date specified in the notice from the Indenture
Trustee described in paragraph (a), the Indenture Trustee shall give a second
notice to the remaining such Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect thereto (which
surrender and payment, n the case of Bearer Notes, shall be outside the United
States). If within one year after the second notice all such Notes shall not
have been surrendered for cancellation, the Indenture Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining such Noteholders concerning surrender of their Notes, and the cost
thereof shall be
83
paid out of the funds in the Deposit Account or any Supplemental Account held
for the benefit of such Noteholders. The Indenture Trustee and the Paying Agent
shall pay to the Issuer any monies held by them for the payment of principal or
interest that remains unclaimed for two (2) years. After payment to the Issuer,
Noteholders entitled to the money must look to the Issuer for payment as general
creditors unless an applicable abandoned property law designates another Person.
Section 14.09 TERMINATION DISTRIBUTIONS. Upon the termination of the
Issuer pursuant to the terms of the Master Owner Trust Agreement, the Indenture
Trustee shall release, assign and convey to the Master Owner Trust Beneficiary
or any of its designees, without recourse, representation or warranty, all of
its right, title and interest in the Collateral, whether then existing or
thereafter created, all monies due or to become due and all amounts received or
receivable with respect thereto (including all moneys then held in any Account)
and all proceeds thereof, except for amounts held by the Indenture Trustee
pursuant to SECTION 14.08(b). The Indenture Trustee shall execute and deliver
such instruments of transfer and assignment as shall be provided to it, in each
case without recourse, as shall be reasonably requested by the Master Owner
Trust Beneficiary to vest in the Master Owner Trust Beneficiary or any of its
designees all right, title and interest which the Indenture Trustee had in the
Collateral and such other property.
Section 14.10 ENHANCEMENT PROVIDER AS THIRD-PARTY BENEFICIARY. Each
Enhancement Provider is a third-party beneficiary of this Indenture to the
extent specified in the applicable Enhancement Agreement or Indenture
Supplement.
Section 14.11 LIMITATION OF CONFIDENTIALITY.
Notwithstanding anything in this Agreement or the other Issuer
Documents to the contrary, each of the undersigned parties (and each affiliate
and person acting on behalf of any such party) agree that each party (and each
employee, representative, and other agent of such party) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure
of the transactions consummated pursuant to the Issuer Documents (the
"Transactions") and all materials of any kind (including opinions or other tax
analyses) that are provided to such party or such person relating to such tax
treatment and tax structure, except to the extent necessary to comply with any
applicable federal or state securities laws. This authorization is not intended
to permit disclosure of any other information including (without limitation) (i)
any portion of any materials to the extent not related to the tax treatment or
tax structure of the Transactions, (ii) the identities of participants or
potential participants in the Transactions, (iii) the existence or status of any
negotiations related to the Transactions, (iv) any pricing or financial
information (except to the extent such pricing or financial information is
related to the tax treatment or tax structure of the Transactions), or (v) any
other term or detail not relevant to the tax treatment or the tax structure of
the Transactions.
Section 14.12 SUBORDINATION.
The Issuer and each Noteholder by accepting a Note acknowledge and
agree that such Note represents indebtedness of the Issuer and does not
represent an interest in any assets (other than the Master Owner Trust Estate)
of NFSC (including by virtue of any deficiency claim in
84
respect of obligations not paid or otherwise satisfied from the Master Owner
Trust Estate and proceeds thereof). In furtherance of and not in derogation of
the foregoing, to the extent NFSC enters into other securitization transactions,
the Issuer as well as each Noteholder by accepting a Note acknowledge and agree
that it shall have no right, title or interest in or to any assets (or interests
therein) (other than the Master Owner Trust Estate) conveyed or purported to be
conveyed by NFSC to another Person in connection therewith (whether by way of a
sale, capital contribution or by virtue of the granting of a lien) ("OTHER
ASSETS"). To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentences of this subsection, the Issuer or any
Noteholder either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through NFSC, or any other person owned
thereby, or (ii) is deemed to have any such interest, claim or benefit in or
from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Federal Bankruptcy Code or any successor provision having
similar effect under the Bankruptcy Code), and whether deemed asserted against
or through NFSC, or any other Person owned thereby, then the Issuer and each
Noteholder by accepting a Note further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and shall be expressly
subordinated to the indefeasible payment in full of all obligations and
liabilities of NFSC which under the terms of the relevant documents relating to
the securitization of such Other Assets are entitled to be paid from, entitled
to the benefits of, or otherwise secured by such Other Assets (whether or not
any such entitlement or security interest is legally perfected or otherwise
entitled to a priority of distribution or application under applicable law,
including insolvency laws, and whether asserted against NFSC or any other Person
owned by NFSC), including the payment of post-petition interest on such other
obligations and liabilities. This subordination agreement shall be deemed a
subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. Each Noteholder further acknowledges and agrees that no adequate remedy at
law exists for a breach of this SECTION 14.12 and the terms of this SECTION
14.12 may be enforced by an action for specific performance.
85
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
NAVISTAR FINANCIAL DEALER NOTE
MASTER OWNER TRUST, by NAVISTAR
FINANCIAL SECURITIES CORPORATION, as
Master Owner Trust Beneficiary
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By:
---------------------------------------
Name:
Title:
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION, as Servicer
By:
---------------------------
Name:
Title:
EXHIBIT A
[FORM OF] PAYMENT INSTRUCTION
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
Unless otherwise indicated, capitalized terms used in this Payment
Instruction have their respective meanings set forth in the Indenture; provided,
that the "PRECEDING DUE PERIOD" shall mean the Due Period immediately preceding
the calendar month in which this Payment Instruction is delivered. This Payment
Instruction is delivered pursuant to SECTION 9.08 of the Indenture. The date of
this Payment Instruction is a Transfer Date.
I. Allocations of Noteholder Available Interest Amounts:
A. Series 200_-_ Allocated Interest Amounts [______].... $______
B. Series 200_-_ Allocated Interest Amounts [______].... $______
C. Series 200_-_ Allocated Interest Amounts [______].... $______
II. Allocations of Noteholder Available Principal Amounts:
A. Series 200_-_ Allocated Principal Amounts [______].... $______
B. Series 200_-_ Allocated Principal Amounts [______].... $______
C. Series 200_-_ Allocated Principal Amounts [______].... $______
A-1
SCHEDULE TO PAYMENT INSTRUCTION*
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
A-2
EXHIBIT B
[FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
DUE PERIOD ENDING _________, ____
Reference is made to the supplement to the Pooling and Servicing
Agreement (the "SERIES SUPPLEMENT"), dated as of _____________, 200_, between
Navistar Financial Securities Corporation, as Seller, Navistar Financial
Corporation, as Servicer, and The Bank of New York, as Trustee, and the
Indenture (the "INDENTURE"), dated as of __________ __, 200_, between Navistar
Financial Dealer Note Master Owner Trust, as Issuer, and The Bank of New York,
as Indenture Trustee. Terms used herein and not defined herein have the meanings
ascribed to them in the Series Supplement, the Indenture and the related
Indenture Supplements, as applicable.
The following computations are prepared with respect to the Transfer
Date of _______ __, ____ and with respect to the performance of the Navistar
Financial Dealer Note Master Owner Trust during the related Due Period.
A. Reductions of and Increases to Nominal Liquidation Amount of
Series:
Nomina
l [Increases
Liquidat from Reductions Reductions
ion amounts due to due to
Amount Increases withdrawn reallocations amounts on
of from from the of Series deposits in
Series accretions Principal Reimbursements 200_-_ Reductions the Principal Current
for prior on Principal Funding from Available Available due to Funding Nominal
Due for Discount Sub- Interests Principal Investor Sub- Liquidation
Series Period Notes Account] Amounts Amounts Charge-Offs Account Amount
----------------- --------- ------------ ---------- -------------- ------------- ----------- ------------- -----------
Series 200_-_
Series 200_-_
[Total:]
B-1
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Monthly Noteholders' Statement this __th day of __________,
_____.
NAVISTAR FINANCIAL SECURITIES
CORPORATION, as Master Owner Trust
Beneficiary of the NAVISTAR FINANCIAL
DEALER NOTE MASTER OWNER TRUST
By: NAVISTAR FINANCIAL
CORPORATION, as Administrator on
behalf of the Master Owner Trust
Beneficiary
By:
--------------------------------
Name:
Title:
B-2
SCHEDULE TO PAYMENT INSTRUCTION*
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
B-3
EXHIBIT C
[FORM OF] INVESTMENT LETTER
[Date]
The Bank of New York,
as Indenture Trustee,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust ABS Unit
Navistar Financial Dealer Note Master Owner Trust
c/o Navistar Financial Securities Corporation,
as Master Owner Trust Beneficiary
c/o Navistar Financial Corporation, as Administrator
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Re: Purchase of $___________ principal amount of Navistar Financial
Dealer Note MASTER OWNER TRUST, SERIES , CLASS [__] NOTES
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "NOTES") we confirm
that:
1. We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "SECURITIES Act"), and are being sold to
us in a transaction that is exempt from the registration requirements of the
Securities Act.
2. Any information we desire concerning the Notes or any other matter
relevant to our decision to purchase the Notes is or has been made available to
us.
3. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Notes, and we (and any account for which we are purchasing under paragraph
(iv) below) are able to bear the economic risk of an investment in the Notes. We
(and any account for which we are purchasing under paragraph (iv) below) are an
"ACCREDITED INVESTOR" (as such term is defined in Rule 501(a)(1), (2) or (3) of
Regulation D under the Securities Act).
4. We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that the
disposition of our property shall at all times be and remain within our control;
C-1
5. We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
6. We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not being
currently foreseen or contemplated), we will not transfer or exchange any of the
Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii)
a letter to substantially the same effect as paragraphs (1), (2),
(3), (4), (5) and (6) of this letter is executed promptly by the
purchaser and (3) all offers or solicitations in connection with
the sale, whether directly or through any agent acting on our
behalf, are limited only to Eligible Purchasers and are not made
by means of any form of general solicitation or general
advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three
years; or
(c) the Notes are sold in any other transaction that does
not require registration under the Securities Act and, if the
Issuer, the Servicer, the Trustee or the Note Registrar so
requests, we theretofore have furnished to such party a Master
Owner Trust Opinion of Counsel satisfactory to such party, in
form and substance satisfactory to such party, to such effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule
144A under the Securities Act; and
7. We understand that the Notes will bear a legend to substantially
the following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT
AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE INDENTURE REFERRED TO HEREIN."
8. We hereby represent and warrant that either (a) we are not (i) an
"employee benefit plan" (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is
subject to the provisions of Title I of ERISA, (ii) a
C-2
"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 or (b) the purchase and holding of the Notes will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code.
This legend may be removed if the Issuer, the Trustee and the Note
Registrar have received a Master Owner Trust Opinion of Counsel satisfactory to
them, in form and substance satisfactory to them, to the effect that the legend
may be removed.
"ELIGIBLE PURCHASER" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "ELIGIBLE DEALER" means any
corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Indenture dated as of
_______ __, 200_, between Navistar Financial Dealer Note Master Owner Trust and
The Bank of New York, as Indenture Trustee.
Very truly yours,
--------------------------------
(Name of Purchaser)
By
------------------------------
(Authorized officer)
▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF] CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE
TRUSTEE BY EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR DELIVERY
OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A TEMPORARY
GLOBAL NOTE
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST, SERIES , CLASS
NOTES
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of
the series, Class Notes to be exchanged for Definitive Notes (the "SUBMITTED
PORTION") pursuant to this certificate (the "NOTES") as provided in the
Indenture dated as of [ ], 200_, (as amended and supplemented, the "INDENTURE")
in respect of such issue. This is to certify that (i) we have received a
certificate or certificates, in writing or by tested telex, with respect to each
of the persons appearing in our records as being entitled to a beneficial
interest in the Submitted Portion and with respect to such person's beneficial
interest either (a) from such person, substantially in the form of EXHIBIT D-2
to the Indenture Supplement, or (b) from _____________ ___, ______,
substantially in the form of EXHIBIT D-3 to the Indenture Supplement, and (ii)
the Submitted Portion includes no part of the Temporary Global Note excepted in
such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in such
proceedings.
Dated: _____________ ___, ______,
[as operator of the Euroclear System]
[Clearstream, Luxembourg]
By
--------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG WITH RESPECT TO REGISTERED NOTES SOLD
TO QUALIFIED INSTITUTIONAL BUYERS
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST, SERIES , CLASS
NOTES
In connection with the initial issuance and placement of the Series ,
Class Notes (the "NOTES"), an institutional investor in the United States (an
"INSTITUTIONAL INVESTOR") is purchasing [U.S.$/(pound)/(U)/SF] aggregate
principal amount of the Notes hold in our account at
[________________________________________________, as operator of the Euroclear
System] [Clearstream, Luxembourg] on behalf of such investor. We reasonably
believe that such institutional investor is an eligible institutional buyer as
such term is defined under Rule 144A of the Securities Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered by this certificate.]
The Definitive Notes in respect of this certificate are to be issued
in registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and
such Definitive Notes (and, unless the Indenture or terms document relating to
the Notes otherwise provides, any Notes issued in exchange or substitution for
or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF
MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OR TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. THIS
NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE."
Dated: __________ ___, ______,
[ ]
By
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Authorized officer
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[FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF NOTES, OTHER
THAN A QUALIFIED INSTITUTIONAL BUYER
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST, SERIES , CLASS
NOTES
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the Series , Class Notes held by you for our
account (the "NOTES") (i) are owned by a person that is a United States person,
or (ii) are owned by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
SECTION 1.165- 12(c)(1)(v)) (a "FINANCIAL INSTITUTION") purchasing for its own
account or for resale, or (B) a United States person who acquired the Notes
through the foreign branch of a financial institution and who holds the Notes
through the financial institution on the date hereof (and in either case (A) or
(B), the financial institution hereby agrees to comply with the requirements of
SECTION 165(j)(3)(A), (B) OR (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined in
U.S. Treasury Regulations SECTION 1.163-5(c)(2)(i)(D)(7)). In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Notes for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to [U.S.$/(pound)/(U)/SF]
principal amount of Notes held by you for our account, as to which we are not
yet able to certify beneficial ownership. We understand that delivery of
Definitive Notes in such principal amount cannot be made until we are able to so
certify.
D-3-1
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in such
proceedings. As used herein, "UNITED STATES" means the United States of America,
including the States and the District of Columbia, its territories, its
possessions and other areas subject to its jurisdiction; and "UNITED STATES
PERSON" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, or any political subdivision thereof, or an estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source.
Dated: __________ ___, ______
By
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Name:
As , or as agent for , the beneficial
owner(s) of the interest in the Notes to
which this certificate relates.
D-3-2