Exhibit 99.1
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ADMINISTRATION AGREEMENT
AMONG
NAVISTAR FINANCIAL DEALER NOTE MASTER OWNER TRUST
ISSUER
AND
NAVISTAR FINANCIAL CORPORATION
ADMINISTRATOR
AND
THE BANK OF NEW YORK
INDENTURE TRUSTEE
DATED AS OF ______ __, 200_
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This ADMINISTRATION AGREEMENT, among NAVISTAR FINANCIAL DEALER NOTE MASTER
OWNER TRUST, a Delaware business trust (the "ISSUER"), NAVISTAR FINANCIAL
CORPORATION, a Delaware corporation, as administrator (the "ADMINISTRATOR"), and
THE BANK OF NEW YORK, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "INDENTURE TRUSTEE"), is made and
entered into as of [____________], 200_.
W I T N E S S E T H :
WHEREAS, the Issuer has entered into the Indenture, dated as of [________],
200_ (as amended and supplemented from time to time, the "INDENTURE"), between
the Issuer and the Indenture Trustee, pursuant to which the Issuer may from time
to time issue its Dealer Note Asset Backed Notes (the "NOTES") in one or more
Series, the terms of which will be set forth in the related Indenture Supplement
(capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture);
WHEREAS, the Issuer will enter into indenture supplements from time to time
(as amended and supplemented from time to time, each an "INDENTURE SUPPLEMENT"),
between the Issuer and the Indenture Trustee for the issuance of a Series of
Notes;
WHEREAS, the Issuer will enter into from time to time a Letter of
Representations (as amended and supplemented from time to time, each a "NOTE
DEPOSITORY AGREEMENT"), among the Issuer, the Indenture Trustee and The
Depository Trust Company relating to a Series of Notes (each Note Depository
Agreement, the Indenture and the Series 200_-_ Indenture Supplement being
referred to hereinafter collectively as the "RELATED ISSUER DOCUMENTS");
WHEREAS, pursuant to the Related Issuer Documents, the Issuer and the
Master Owner Trust Trustee are required to perform certain duties in connection
with (a) the Notes and the collateral therefor pledged pursuant to the Indenture
(the "COLLATERAL") and (b) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the "OWNERS");
WHEREAS, the Issuer and the Master Owner Trust Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Master Owner
Trust Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related Issuer
Documents as the Issuer and the Master Owner Trust Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Master Owner Trust Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO EACH NOTE DEPOSITORY AGREEMENT, THE INDENTURE
AND EACH INDENTURE SUPPLEMENT.
(i) The Administrator agrees to perform all the duties of the
Issuer and the Master Owner Trust Trustee under each Note Depository Agreement.
In addition, the Administrator shall consult with the Master Owner Trust Trustee
regarding the duties of the Issuer or the Master Owner Trust Trustee under the
Indenture, each Indenture Supplement and each Note Depository Agreement as
reasonably practicable. The Administrator shall monitor the performance of the
Issuer and shall advise the Master Owner Trust Trustee when action is necessary
to comply with the Issuer's or the Master Owner Trust Trustee's duties under the
Indenture, each Indenture Supplement and each Note Depository Agreement. The
Administrator shall prepare for execution by the Issuer, or shall cause the
preparation by other appropriate persons of, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Issuer or the Master Owner Trust Trustee to prepare, file or deliver pursuant to
the Indenture, each Indenture Supplement or each Note Depository Agreement. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Master Owner Trust Trustee to take
pursuant to the Indenture including, without limitation, such of the foregoing
as are required with respect to the following matters under the Indenture or an
Indenture Supplement:
(A) the delivery of an Officer's Certificate and a Master
Owner Trust Opinion of Counsel as to compliance with the Indenture (INDENTURE
SECTION 1.02);
(B) the delivery to the Indenture Trustee of the Issuer
Certificate (INDENTURE SECTION 2.02);
(C) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of the same to
the Indenture Trustee (INDENTURE SECTIONS 2.04 AND 2.05);
(D) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (INDENTURE SECTION
3.05);
(E) the delivery to the Indenture Trustee and the Note
Rating Agencies of a Tax Opinion, and certain other documents related to a new
issuance of Notes (INDENTURE SECTION 3.10);
(F) the receipt of a confirmation from the Note Rating
Agencies and the delivery to the Trustee and the Note Rating Agencies of a Tax
Opinion in regard to a change in the subordination or Overcollateralization
Amount for any class of Notes (INDENTURE SECTION 3.11);
(G) the duty to cause to be established and maintained the
Deposit Account (INDENTURE SECTION 4.02);
(H) the giving of written directions to the Indenture
Trustee regarding investment of funds on deposit in the Accounts (INDENTURE
SECTION 4.03);
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(I) the giving of demand to the Indenture Trustee to
execute proper instruments acknowledging satisfaction and discharge of the
Indenture, and delivery to the Indenture Trustee of an Officer's Certificate and
a Master Owner Trust Opinion of Counsel regarding the satisfaction and discharge
of the Indenture (INDENTURE SECTION 6.01);
(J) the reduction of the Investor Interest of the
Collateral Certificate in connection with the cancellation of a Note (INDENTURE
SECTION 6.03);
(K) the approval of the appointment of an Authenticating
Agent (INDENTURE SECTION 8.14);
(L) the preparation of required tax information and
delivery thereof to the Indenture Trustee (INDENTURE SECTION 8.15);
(M) the furnishing to the Indenture Trustee of the names
and addresses of Noteholders during any period when the Indenture Trustee is not
the Note Registrar (INDENTURE SECTION 9.01);
(N) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the Indenture
Trustee of documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the transmission of such
summaries, as necessary, to the Noteholders (INDENTURE SECTION 9.05);
(O) the completion and delivery to the Indenture Trustee,
Master Trust Trustee and the Note Rating Agencies of the Monthly Noteholder's
Statement (INDENTURE SECTION 9.07);
(P) the completion of the Payment Instruction and delivery
of a copy thereof to the Indenture Trustee and the Master Trust Trustee, and
notification of the Servicer under the Series 200_-__ Supplement of the
information necessary to be provided by the Issuer to calculate the Investor
Interest of the Collateral Certificate (INDENTURE SECTION 9.08);
(Q) the delivery of a Tax Opinion and an Officer's
Certificate, in connection with the amendment of the Indenture or any Indenture
Supplement or entering into a supplemental Indenture (INDENTURE SECTIONS 10.01
AND 10.02);
(R) the delivery to the Indenture Trustee of a Tax Opinion
in connection with the execution of any Indenture Supplement (INDENTURE SECTION
10.03);
(S) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (INDENTURE SECTION 11.03);
(T) the delivery to the Indenture Trustee and the Note
Rating Agencies of an annual compliance statement as specified in the Indenture
(INDENTURE SECTION 11.04);
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(U) the doing or causing to be done of all things necessary
to preserve and keep in full force and effect the Issuer's legal existence
(INDENTURE SECTION 11.05);
(V) at the request of the Indenture Trustee, to 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 the Indenture
(INDENTURE SECTION 11.06);
(W) the provision of any information to satisfy the
conditions set forth in Rule 144A(d)(4) under the Securities Exchange Act as
applicable (INDENTURE SECTION 11.12);
(X) the delivery to the Indenture Trustee of an Officer's
Certificate and a Master Owner Trust Tax Opinion in connection with the
consolidation or merger of the Issuer, or conveyance or transfer of any of its
properties substantially as an entirety to any Person (INDENTURE SECTION 11.14);
(Y) the taking of all actions necessary to obtain and
maintain a perfected lien on and security interest in the Collateral in favor of
the Indenture Trustee, and all related actions listed in SECTION 13.01 OF THE
INDENTURE (INDENTURE SECTION 13.01);
(Z) the recording of the Indenture, if applicable
(INDENTURE SECTION 13.01);
(AA) delivery of an Officer's Certificate in connection with
the release of the Collateral (INDENTURE SECTION 13.07);
(BB) delivery of each Master Owner Trust Opinion of Counsel
regarding the Collateral (INDENTURE SECTION 13.09);
(CC) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (INDENTURE SECTION 13.10);
(DD) the delivery to the Indenture Trustee of a copy of each
agreement with a Noteholder to provide for a method of payment or notices
different from that provided for in the Indenture (INDENTURE SECTION 14.06);
(EE) the calculation of the Nominal Liquidation Amount of
each Series of Notes and the Overcollateralization Amount (INDENTURE
SUPPLEMENT);
(FF) the appointment and removal of the Calculation Agent
(INDENTURE SUPPLEMENT);
(GG) the delivery of notice to the Indenture Trustee and
Note Rating Agencies of each Event of Default under the Indenture (INDENTURE
SECTIONS 7.01 AND 8.02);
(HH) the direction to the Paying Agents to pay to the
Indenture Trustee all sums held in trust by such Paying Agent (INDENTURE SECTION
11.03);
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(II) the duty to cause the Issuer to maintain an office,
agency or Paying Agent as set forth in the Indenture and to give the Indenture
Trustee notice of the location or change in location of such office or agency
(INDENTURE SECTION 11.02);
(JJ) the preparation of temporary Notes of any class
(INDENTURE SECTION 3.04);
(KK) the execution of a new Note in exchange for or in lieu
of any mutilated, destroyed, lost or stolen Note (INDENTURE SECTION 3.06);
(LL) the appointment of a successor Indenture Trustee in
event of vacancy in the office of the Indenture Trustee and the provision of
notice to each Note Rating Agency of such vacancy and appointment (INDENTURE
SECTION 8.10);
(MM) the provision of written notice to the Note Rating
Agencies of any merger, conversion, consolidation or succession with respect to
the Indenture Trustee (INDENTURE SECTION 8.12);
(NN) the notification of the Indenture Trustee when the
Notes are admitted to trading on any stock exchange (INDENTURE SECTION 9.03);
(OO) the execution and delivery of the Series 200_-_ Notes
to the Indenture Trustee for authentication (INDENTURE SUPPLEMENT SECTION 2.03);
(PP) the reallocation and redistribution of certain Excess
Available Interest Amounts to cover shortfalls in Series Available Interest
Amounts (INDENTURE SECTION 5.03);
(QQ) the reallocation and redistribution of certain Excess
Available Principal Amounts to cover shortfalls in Series Available Principal
Amounts (INDENTURE SECTION 5.02);
(RR) the duty to cause the Issuer to comply with the
requirements of applicable laws (INDENTURE SECTION 11.07); and
(SS) the provision of written notice to the Indenture
Trustee and the Note Rating Agencies of each Event of Default (INDENTURE SECTION
11.08).
(ii) The Administrator will indemnify the Master Owner Trust
Trustee and its agents for, and hold them harmless against, any losses,
liability or expense incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of the
transactions contemplated by the Master Owner Trust Agreement, including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties under the Master Owner Trust Agreement.
(b) ADDITIONAL DUTIES.
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(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Master Owner Trust Trustee or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates, notices and opinions as it shall be the duty
of the Issuer or the Master Owner Trust Trustee to prepare, file or deliver
pursuant to the Related Issuer Documents, and at the request of the Master Owner
Trust Trustee shall take all appropriate action that it is the duty of the
Issuer or the Master Owner Trust Trustee to take pursuant to the Related Issuer
Documents. Subject to SECTION 5 of this Agreement, and in accordance with the
directions of the Master Owner Trust Trustee, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Issuer Documents) as are
not covered by any of the foregoing provisions and as are expressly requested by
the Master Owner Trust Trustee and are reasonably within the capability of the
Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Issuer Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Master Owner Trust Trustee and the Paying Agent in the
event that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to an Owner. Any such notice shall specify the amount of
any withholding tax required to be withheld by the Paying Agent pursuant to such
provision.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
or otherwise deal with any of its affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated parties.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Master Owner Trust Trustee of the proposed
action and the Master Owner Trust Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"NON-MINISTERIAL MATTERS" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the Dealer Notes);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of
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successor Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders under the Related Issuer Documents, (y) sell the
Collateral pursuant to the Indenture or (z) take any other action that the
Issuer directs the Administrator not to take on its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account
and records shall be accessible for inspection by the Issuer, the Master
Owner Trust Trustee and the Seller at any time during normal business hours
and with 48 hours prior notice.
3. COMPENSATION. As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses
related thereto, the Administrator shall be entitled to $1,500 per month
which shall be solely an obligation of the Seller.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER. The Administrator shall
furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF ADMINISTRATOR. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject
to the supervision of the Issuer or the Master Owner Trust Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Master Owner Trust Trustee in any way and shall not otherwise be deemed
an agent of the Issuer or the Master Owner Trust Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall constitute
the Administrator and either of the Issuer or the Master Owner Trust
Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on the Administrator, the Issuer
or the Master Owner Trust Trustee or (iii) shall be deemed to confer on the
Administrator, the Issuer or the Master Owner Trust Trustee any express,
implied or apparent authority to incur any obligation or liability on
behalf of the others.
7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator
for any other person or entity even though such person or entity may engage
in business activities similar to those of the Issuer, the Master Owner
Trust Trustee or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
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(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to SECTIONS 8(e) AND (f), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days' prior written
notice.
(c) Subject to SECTIONS 8(e) AND (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to SECTIONS 8(e) AND (f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall not
cure such default within ten days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within 120 days, in respect of the Administrator in any involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any substantial part
of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in CLAUSES
(ii) OR (iii) of this Section shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after each Note Rating Agency confirms in writing that such proposed
appointment will not cause a Note Rating Agency Condition.
(g) The undersigned parties acknowledge that upon the appointment of a
successor Servicer pursuant to the Pooling and Servicing Agreement, the
Administrator may immediately
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resign and such successor Servicer shall automatically become the Administrator
under this Agreement.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the
effective date of termination of this Agreement pursuant to SECTION 8(a) or
the resignation or removal of the Administrator pursuant to SECTION 8(b),
(c) OR (d), respectively, the Administrator shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon
such termination pursuant to SECTION 8(a) deliver to the Issuer all
property and documents of or relating to the Collateral then in the custody
of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to SECTION 8(b), (c) OR (d), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of the Administrator.
10. NOTICES. Any notice, report or other communication given hereunder shall be
in writing and addressed as follows:
(a) if to the Issuer or the Master Owner Trust Trustee, to the Master
Owner Trust Trustee Corporate Trust Office, with copies to:
Navistar Financial Securities Corporation
c/o Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(b) if to the Administrator, to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(c) if to the Indenture Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx,
Xxxxx 0X,
00
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust ABS Unit
Telecopy: (__) ___ - ____
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. AMENDMENTS. This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Issuer, the Administrator and
the Indenture Trustee, with the written consent of the Master Owner Trust
Trustee, without the consent of the Noteholders to cure any ambiguity, to
correct or supplement any provisions of this Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or Master Owner Trust Certificateholders; PROVIDED THAT
such amendment will not, in a Master Owner Trust Opinion of Counsel
satisfactory to the Indenture Trustee, materially and adversely affect the
interest of any Noteholder or Master Owner Trust Certificateholder. This
Agreement may also be amended by the Issuer, the Administrator and the
Indenture Trustee with the written consent of the Master Owner Trust
Trustee and the holders of Notes evidencing at least a majority of the
Outstanding Principal Amount of the Notes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or the Master Owner Trust Certificateholders; provided,
however, that no such amendment may (i) increase or reduce in any manner
the amount of, or accelerate or delay the timing of distributions that are
required to be made for the benefit of the Noteholders or (ii) reduce the
aforesaid percentage of the holders of Notes which are required to consent
to any such amendment, without the consent of the holders of all the
outstanding Notes. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the permission of the Seller and the Issuer,
which permission shall not be unreasonably withheld. Promptly after the
execution of such amendment or consent, the Administrator shall furnish
written notification of the substance of such amendment or consent to the
Indenture Trustee.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by the Issuer and the Master Owner Trust Trustee and subject to receipt of
a confirmation from each Note Rating Agency that such assignment will not
cause a Note Rating Agency Condition. An assignment with such consent and
confirmation, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Master Owner Trust
Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided
that such successor organization executes and delivers to the Issuer, the
Master Owner Trust Trustee and the Indenture Trustee an agreement in which
such corporation or other organization agrees to be bound hereunder by the
terms of said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
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13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. HEADINGS. The section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
17. NOT APPLICABLE TO NAVISTAR FINANCIAL CORPORATION IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any obligation Navistar Financial
may have in any other capacity.
18. LIMITATION OF LIABILITY OF MASTER OWNER TRUST TRUSTEE AND INDENTURE
TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank USA, National
Association not in its individual capacity but solely in its capacity as Master
Owner Trust Trustee of the Issuer and in no event shall Chase Manhattan Bank
USA, National Association in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Master Owner Trust Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of ARTICLES V AND VI of the Master
Owner Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by the Indenture Trustee not in its individual
capacity but solely as Indenture Trustee and in no event shall the Indenture
Trustee have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
19. THIRD-PARTY BENEFICIARY. The Master Owner Trust Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party
hereto.
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20. NO PETITION COVENANT. Notwithstanding any prior termination of this
Agreement, the Master Owner Trust Trustee (as such and in its individual
capacity) and the Administrator hereby covenant and agree that they shall
not, prior to the date which is one year and one day after the termination
of this Agreement, acquiesce, petition or otherwise invoke or cause the
Issuer or the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the
Issuer or the Seller under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or the
Seller or any substantial part of either of their properties, or ordering
the winding up or liquidation of the affairs of the Issuer or the Seller.
21. LIMITATION ON CONFIDENTIALITY. Each of the undersigned parties agrees to
comply with SECTION 14.11 of the Indenture.
* * * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
NAVISTAR FINANCIAL DEALER NOTE
MASTER OWNER TRUST
By: Chase Manhattan Bank USA, National
Association,not in its individual
capacity but solely as Master Owner
Trust Trustee
By:
-----------------------------
Name:
Title:
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By:
-------------------------------
Name:
Title:
NAVISTAR FINANCIAL
CORPORATION, as Administrator
By:
-------------------------------
Name:
Title:
