TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF NOVEMBER 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS ........................................................1
1.1 Definitions...................................................1
ARTICLE IIORGANIZATION.......................................................1
2.1 Name..........................................................1
2.2 Office........................................................1
2.3 Purposes and Powers...........................................1
2.4 Appointment of Owner Trustee..................................2
2.5 Initial Capital Contribution of Owner Trust Estate............2
2.6 Declaration of Trust..........................................2
2.7 Liability of the Certificateholders...........................3
2.8 Title to Trust Property.......................................3
2.9 Situs of Trust................................................3
2.10 Representations and Warranties of the Seller..................3
ARTICLE IIITHE CERTIFICATES..................................................5
3.1 Initial Certificate Ownership.................................5
3.2 Form of the Certificates......................................5
3.3 Execution, Authentication and Delivery........................5
3.4 Registration; Registration of Transfer and Exchange of
Certificates..................................................5
3.5 Mutilated, Destroyed, Lost or Stolen Certificates.............7
3.6 Persons Deemed Certificateholders.............................8
3.7 Access to List of Certificateholders' Names and Addresses.....8
3.8 Maintenance of Corporate Trust Office.........................8
3.9 Appointment of Paying Agent...................................8
3.10 Seller as Certificateholder...................................9
ARTICLE IVACTIONS BY OWNER TRUSTEE...........................................9
4.1 Prior Notice to Certificateholders with Respect to Certain
Matters.......................................................9
4.2 Action by Certificateholders with Respect to Certain Matters.10
4.3 Action by Certificateholders with Respect to Bankruptcy......10
4.4 Restrictions on Certificateholders' Power....................10
4.5 Majority Control.............................................10
ARTICLE VAPPLICATION OF TRUST FUNDS; CERTAIN DUTIES.........................11
5.1 Establishment of Certificate Distribution Account............11
5.2 Application of Trust Funds.................................11
5.3 Method of Payment............................................12
5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others...................................12
5.5 Signature on Returns.........................................12
ARTICLE VITHE OWNER TRUSTEE.................................................13
6.1 Duties of Owner Trustee......................................13
6.2 Rights of Owner Trustee......................................14
6.3 Acceptance of Trusts and Duties..............................14
6.4 Action upon Instruction by Certificateholders................16
6.5 Furnishing of Documents......................................16
6.6 Representations and Warranties of Owner Trustee..............16
6.7 Reliance; Advice of Counsel..................................17
6.8 Owner Trustee May Own Certificates and Notes.................18
6.9 Compensation and Indemnity...................................18
6.10 Replacement of Owner Trustee.................................18
6.11 Merger or Consolidation of Owner Trustee.....................19
6.12 Appointment of Co-Trustee or Separate Trustee................19
6.13 Eligibility Requirements for Owner Trustee...................21
ARTICLE VIITERMINATION OF TRUST AGREEMENT...................................21
7.1 Termination of Trust Agreement...............................21
ARTICLE VIIIAMENDMENTS......................................................23
8.1 Amendments Without Consent of Certificateholders or Noteholders23
8.2 Amendments With Consent of Certificateholders and Noteholders.23
8.3 Form of Amendments...........................................24
ARTICLE IXMISCELLANEOUS.....................................................24
9.1 No Legal Title to Owner Trust Estate. ......................24
9.2 Limitations on Rights of Others..............................24
9.3 Notices......................................................25
9.4 Severability.................................................25
9.5 Counterparts.................................................25
9.6 Successors and Assigns.......................................25
9.7 No Petition Covenant.........................................25
9.8 No Recourse..................................................25
9.9 Headings.....................................................26
9.10 Governing Law................................................26
9.11 Certificate Transfer Restrictions............................26
9.12 Administrator................................................26
9.13 Amended and Restated Trust Agreement.........................26
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EXHIBITS
Exhibit A Form of Certificate
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TRUST AGREEMENT, dated as of November 1, 2000 between Navistar
Financial Retail Receivables Corporation, a Delaware corporation, as Seller,
and Chase Manhattan Bank USA, National Association, a national banking
association, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Pooling and Servicing Agreement of even date herewith,
among the Seller, the Servicer and Chase Manhattan Bank USA, National
Association, acting as Owner Trustee of the Navistar Financial 2000-B Owner
Trust (as it may be amended and supplemented from time to time, the "Pooling
and Servicing Agreement"). All references herein to "the Agreement" or "this
Agreement" are to this Trust Agreement as it may be amended and supplemented
from time to time, the Exhibits hereto and the capitalized terms used herein
which are defined in such Appendix A, and all references herein to Articles,
Sections and subsections are to Articles, Sections and subsections of this
Agreement unless otherwise specified. The rules of construction set forth in
Part II of such Appendix A shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION II.1 Name. The Trust created hereby shall be known
as "Navistar Financial 2000-B Owner Trust."
SECTION II.2 Office. The office of the Trust shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to
the Certificateholders and the Seller.
SECTION II.3 Purposes and Powers. (a) The purpose of the
Trust is to engage in the following activities:
(i) to acquire, manage and hold the Receivables;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and to transfer and exchange the Certificates;
(iii) to acquire property and assets from the Seller pursuant to
the Pooling and Servicing Agreement, to make payments or distributions
on the Securities to the Securityholders, to make deposits into and
withdrawals from the Reserve Account and other accounts established
pursuant to the Basic Documents and to pay the organizational, start-up
and transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the terms of the Indenture and to hold, manage
and distribute to the Certificateholders pursuant to the terms of this
Agreement and the Pooling and Servicing Agreement any portion of the
Trust Estate released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(v) to have the Owner Trustee enter into and perform
obligations and exercise rights on behalf of the Trust under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including having the Owner
Trustee enter into agreements, that are necessary, suitable, desirable
or convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of payments or
distributions to the Securityholders.
The Owner Trustee, on behalf of the Trust, shall not engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION II.4 Appointment of Owner Trustee. The Seller
hereby appoints Chase Manhattan Bank USA, National Association as trustee of
the Trust (the "Owner Trustee") effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
SECTION II.5 Initial Capital Contribution of Owner Trust
Estate. The Seller hereby sells, assigns, transfers, conveys and sets over
to the Owner Trustee, on behalf of the Trust, as of the date hereof, the sum
of $1. The Owner Trustee hereby acknowledges receipt in trust from the
Seller, as of the date hereof, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the
Certificate Distribution Account. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Owner Trustee, promptly reimburse the Owner Trustee for any such expenses
paid by the Owner Trustee.
SECTION II.6 Declaration of Trust. The Owner Trustee hereby
declares that it shall hold the Owner Trust Estate in trust upon and subject
to the conditions and obligations set forth herein and in the Pooling and
Servicing Agreement for the use and benefit of the Certificateholders,
subject to the obligations of the Owner Trustee, on behalf of the Trust,
under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a common law trust duly organized under the laws of the
State of Delaware, that this Agreement constitute the governing instrument of
such trust and that the Certificates represent the equity interests therein.
The rights of the Certificateholders shall be determined as set forth herein
and the relationship between the parties hereto created by this Agreement
shall not constitute indebtedness for any purpose. It is the intention of
the parties hereto that, solely for purposes of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon,
measured by, or based upon gross or net income, the Trust shall be treated as
a division or branch of the Seller. The parties agree that, unless otherwise
required by appropriate tax authorities, the Owner Trustee shall file or
cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a division or branch of
the Seller for such tax purposes; provided, however, that until the Seller
receives a ruling from the Illinois Department of Revenue or an opinion of
counsel reasonably acceptable to the Owner Trustee that the Trust will be
treated as a branch or division of the Seller for purposes of the Illinois
Income Tax Act and the Illinois Personal Property Tax Replacement Tax Act,
for purposes of the Illinois Income Tax Act and the Illinois Personal
Property Tax Replacement Tax Act, the Seller will (i) include the taxable
income of the Trust in the combined tax return filed by the combined group
that includes the Seller, (ii) take all steps necessary to treat the Trust as
a member of the same combined group of which the Seller is a member and (iii)
provide information to the Owner Trustee to confirm that the actions required
by clauses (i) and (ii) have been effected. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth in this
Agreement and the Pooling and Servicing Agreement with respect to
accomplishing the purposes of the Trust.
SECTION II.7 Liability of the Certificateholders. No
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION II.8 Title to Trust Property. Legal title to all
the Owner Trust Estate shall be vested at all times in the Owner Trustee, on
behalf of the Trust, except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a co-trustee or a
separate trustee, in which case title shall be deemed to be vested in a
co-trustee and/or a separate trustee, as the case may be.
SECTION II.9 Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of New York. The Trust shall not have any employees in
any state other than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or
without the State of Delaware. Payments shall be received by the Owner
Trustee only in Delaware or New York, and payments and distributions shall be
made by the Owner Trustee only from Delaware or New York. The only office of
the Trust shall be the Corporate Trust Office of the Owner Trustee in
Delaware.
SECTION II.10 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its business as
such properties are presently owned and such business is presently conducted
and had at all relevant times, and now has, power, authority and legal right
to acquire and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms, the Seller has full power
and authority to sell and assign the property to be sold and assigned to and
deposited with the Owner Trustee on behalf of the Trust, and the Seller has
duly authorized such sale and assignment to the Owner Trustee, on behalf of
the Trust, by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the Seller by
all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents), or violate any law
or, to the Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any Certificates
issued pursuant hereto or, (ii) seeking to prevent the issuance of such
Certificates or the consummation of any of the transactions contemplated by
this Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, such Certificates or
this Agreement.
ARTICLE III
THE CERTIFICATES
SECTION III.1 Initial Certificate Ownership. Upon the
formation of the Trust by the contribution by the Seller pursuant to Section
2.5 and until the issuance of the Certificates, the Seller shall be the sole
beneficiary of the Trust.
SECTION III.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set
forth in Exhibit A. The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of a Responsible Officer of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Owner Trustee, shall be, when
authenticated pursuant to Section 3.3, validly issued and entitled to the
benefits of the Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders) all as determined by the officers
executing such Certificates, as evidenced by their execution of such
Certificates.
(c) The Certificates shall be issued in fully-registered form
and shall be in definitive form only. The terms of the Certificates set
forth in Exhibit A shall form part of this Agreement.
SECTION III.3 Execution, Authentication and Delivery.
Concurrently with the sale of the Receivables to the Owner Trustee, on behalf
of the Trust, pursuant to the Pooling and Servicing Agreement, the Owner
Trustee shall execute, authenticate and deliver the Certificates to or upon
the written order of the Seller, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Seller, in authorized denominations. No Certificate shall entitle its
holder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Owner Trustee or The Chase Manhattan Bank, as the Owner Trustee's
authenticating agent, by manual signature. Such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION III.4 Registration; Registration of Transfer and
Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as provided
herein. The Chase Manhattan Bank shall be the initial Certificate Registrar.
Upon any resignation of a Certificate Registrar, the Owner Trustee shall
promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Certificate Registrar.
(b) The initial Certificateholders may at any time, without
consent of the Noteholders, sell, transfer, convey or assign in any manner
its rights to and interests in the Certificates (including its right to
distributions from the Reserve Account), provided that: (i) such action will
not result in a reduction or withdrawal of the rating of any class of Notes,
(ii) the Certificateholders provide to the Owner Trustee and the Indenture
Trustee an opinion of independent counsel that such action will not cause the
Trust to be treated as an association (or publicly traded partnership)
taxable as a corporation for Federal income tax purposes, (iii) such
transferee or assignee agrees to take positions for tax purposes consistent
with the tax positions agreed to be taken by the Certificateholders and (iv)
the conditions set forth in Section 9.11 have been satisfied. In addition,
no transfer of a Certificate shall be registered unless the transferee shall
have provided to the Owner Trustee and the Certificate Registrar an opinion
of counsel that in connection with such transfer no registration of the
Certificates is required under the Securities Act or applicable state law or
that such transfer is otherwise being made in accordance with all applicable
federal and state securities laws.
(c) Subject to Section 3.4(b), upon surrender for registration
of transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute, authenticate and deliver (or
shall cause The Chase Manhattan Bank as its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a
like aggregate amount dated the date of authentication by the Owner Trustee
or any authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged
for other Certificates of a like aggregate percentage interest upon surrender
of the Certificates to be exchanged at the Corporate Trust Office maintained
pursuant to Section 3.8. Whenever any Certificates are so surrendered for
exchange, the Owner Trustee shall execute, authenticate and deliver (or shall
cause The Chase Manhattan Bank as its authenticating agent to authenticate
and deliver) one or more Certificates dated the date of authentication by the
Owner Trustee or any authenticating agent. Such Certificates shall be
delivered to the Holder making the exchange.
(e) Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed or otherwise disposed
of by the Owner Trustee or Certificate Registrar in accordance with its
customary practice.
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
SECTION III.5 Mutilated, Destroyed, Lost or Stolen
Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Owner Trustee such
security or indemnity as may be required by it to hold it harmless, then, in
the absence of notice to the Certificate Registrar or the Owner Trustee that
such Certificate has been acquired by a protected purchaser, the Owner
Trustee shall execute and the Owner Trustee shall authenticate and deliver
(or shall cause The Chase Manhattan Bank as its authenticating agent to
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a replacement Certificate in
authorized denominations of a like amount; provided, however, that if any
such destroyed, lost or stolen Certificate, but not a mutilated Certificate,
shall have become or within seven days shall be due and payable, then instead
of issuing a replacement Certificate the Owner Trustee may pay such
destroyed, lost or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or
distribution in respect of a destroyed, lost or stolen Certificate pursuant
to subsection 3.5(a), a bona fide purchaser of the original Certificate in
lieu of which such replacement Certificate was issued presents for payment
such original Certificate, the Owner Trustee shall be entitled to recover
such replacement Certificate (or such distribution) from the Person to whom
it was delivered or any Person taking such replacement Certificate from such
Person to whom such replacement Certificate was delivered or any assignee of
such Person, except a bona fide purchaser, and shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require the payment
by the Holder of such Certificate of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Owner
Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen Certificate
shall constitute an original additional contractual obligation under this
Agreement , whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time or be enforced by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately
with any and all other Certificates duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION III.6 Persons Deemed Certificateholders. Prior to
due presentation of a Certificate for registration of transfer, the Owner
Trustee or the Certificate Registrar may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the
Certificateholder of such Certificate for the purpose of receiving
distributions pursuant to Article V and for all other purposes whatsoever,
and neither the Owner Trustee nor the Certificate Registrar shall be bound by
any notice to the contrary.
SECTION III.7 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Seller, within 15 days after receipt by the Owner Trustee of
a request therefor from the Servicer or the Seller in writing, a list, in
such form as the Servicer or the Seller may reasonably require, of the names
and addresses of the Certificateholders as of the most recent Record Date.
Each Holder, by receiving and holding a Certificate, shall be deemed to have
agreed not to hold any of the Servicer, the Seller or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
SECTION III.8 Maintenance of Corporate Trust Office. The
Owner Trustee shall maintain in the Borough of Manhattan, the City of New
York, an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Owner Trustee in respect of the Certificates and the
Basic Documents may be served. The Owner Trustee initially designates the
offices of The Chase Manhattan Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as
its principal office for such purposes. The Owner Trustee shall give prompt
written notice to the Seller and to the Certificateholders of any change in
the location of the Certificate Register or any such office or agency.
SECTION III.9 Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.2 and shall report the amounts of
such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be The Chase Manhattan Bank, and
any co-paying agent chosen by The Chase Manhattan Bank, and acceptable to the
Owner Trustee. The Chase Manhattan Bank shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Owner Trustee. If The Chase
Manhattan Bank shall no longer be the Paying Agent, the Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to execute and deliver
to the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for distribution to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 6.3, 6.6, 6.7, 6.8 and 6.9 shall apply,
mutatis mutandis, to the Owner Trustee also in its role as Paying Agent, for
so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION III.10 Seller as Certificateholder. The Seller in its
individual or any other capacity may become the owner or pledgee of
Certificates and may otherwise deal with the Owner Trustee or its Affiliates
as if it were not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION IV.1 Prior Notice to Certificateholders with Respect
to Certain Matters. The Owner Trustee shall not take action with respect to
the following matters, unless (i) the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action at least 30 days before
the taking of such action, and (ii) the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit on behalf of the
Trust (other than an action to collect on a Receivable or an action by the
Indenture Trustee pursuant to the Indenture) and the compromise of any
action, claim or lawsuit brought on behalf of or against the Trust or the
Owner Trustee (other than an action to collect on a Receivable or an action
by the Indenture Trustee pursuant to the Indenture);
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable; or
(f) the amendment of the Pooling and Servicing Agreement in
circumstances where the consent of any Noteholder is required.
SECTION IV.2 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
written direction of the Certificateholders, to (a) remove the Administrator
under the Administration Agreement pursuant to Section 10 thereof, (b)
appoint a successor Administrator pursuant to Section 10 of the
Administration Agreement, (c) remove the Servicer under the Pooling and
Servicing Agreement pursuant to Section 8.02 thereof or (d) except as
expressly provided in the Basic Documents, sell the Receivables or any
interest therein after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders.
SECTION IV.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust without the
unanimous prior approval of all Holders of Certificates (including the
unanimous approval of the board of directors of the Seller) unless the Owner
Trustee reasonably believes that the Trust is insolvent.
SECTION IV.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the Basic Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION IV.5 Majority Control. Except as expressly provided
herein, any action that may be taken or consent that may be given or withheld
by the Certificateholders under this Agreement shall be effective if such
action is taken or such consent is given or withheld by the Holders of a
majority of the ownership interest in the Trust outstanding as of the close
of the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
ownership interest in the Trust at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION V.1 Establishment of Certificate Distribution Account.
(a) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain at The Chase Manhattan Bank in the name of the
Owner Trustee an Eligible Deposit Account known as the Navistar Financial
2000-B Owner Trust Certificate Distribution Account (the "Certificate
Distribution Account"), bearing an additional designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(b) The Owner Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. Except as otherwise
provided herein or in the Pooling and Servicing Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of the
Owner Trustee for the benefit of the Certificateholders. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Servicer shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall cause the Owner Trustee to transfer any cash and/or any
investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
SECTION V.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall (based
on the information contained in the Servicer's Certificate delivered on the
related Determination Date) distribute to the Certificateholders, on a pro
rata basis, amounts deposited in the Certificate Distribution Account
pursuant to Sections 4.07(b), 5.01(b)(i), 5.05, 9.02(a) and 9.02(d) of the
Pooling and Servicing Agreement.
(b) On each Distribution Date, the Owner Trustee shall send (or
shall cause to be sent) to each Certificateholder the statement described in
Section 4.09(a) of the Pooling and Servicing Agreement.
(c) If any withholding tax is imposed on distributions of the
Owner Trust Estate (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the Certificateholder
in accordance with this Section 5.2. The Owner Trustee is hereby authorized
and directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally required to be paid by the Owner Trustee, on behalf of the Trust (but
such authorization shall not prevent the Owner Trustee from contesting any
such tax in appropriate proceedings and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of
any withholding tax imposed with respect to a Certificateholder shall be
treated as cash distributed to such Certificateholder at the time it is
withheld by the Owner Trustee and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this subsection 5.2(c). If a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee
shall, upon notice from the Indenture Trustee that such funds exist, submit
an Issuer Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the
order of the Seller.
SECTION V.3 Method of Payment. Subject to Section 7.1(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the related Record
Date (i) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor
or, where possible, by intra-bank book entry credit, if such
Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Record Date and the distribution required to be made to such
Certificateholders exceeds $100,000 or (ii) by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
SECTION V.4 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on the basis of a fiscal
year ending October 31 on the accrual method of accounting, (b) deliver to
each Certificateholder, as may be required by the Code and applicable
Treasury Regulations or otherwise, such information as may be required to
enable each Certificateholder to prepare its federal income tax returns, (c)
file such tax returns relating to the Trust and make such elections as may
from time to time be required or appropriate under any applicable state or
federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as a division or branch of the Seller for federal
income tax purposes, (d) cause such tax returns to be signed in the manner
required by law and (e) collect or cause to be collected any withholding tax
as described in and in accordance with subsection 5.2(c) with respect to
income or distributions to Certificateholders.
SECTION V.5 Signature on Returns. The Owner Trustee shall sign
on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller.
ARTICLE VI
THE OWNER TRUSTEE
SECTION VI.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement, the
Pooling and Servicing Agreement and the other Basic Documents, including the
administration of the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Agreement and the Pooling and Servicing Agreement. No implied covenants or
obligations shall be read into this Agreement, the Pooling and Servicing
Agreement or any other Basic Document against the Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Administrator to carry
out its obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in determining
the truth of the statements and the correctness of the opinions contained
therein; provided, however, that the Owner Trustee shall have examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of
subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the
Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Pooling and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income
tax purposes.
(g) The Certificateholders shall not direct the Owner Trustee
to take action that would violate the provisions of this Section 6.1.
SECTION VI.2 Rights of Owner Trustee. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents and each
certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which it is to be a party, on behalf of the Trust, in
such form as the Seller shall approve as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of
it, on behalf of the Trust, pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
SECTION VI.3 Acceptance of Trusts and Duties. Except as
otherwise provided in this Article VI, in accepting the trusts hereby
created, Chase Manhattan Bank USA, National Association acts solely as Owner
Trustee hereunder and not in its individual capacity and all Persons having
any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this
Agreement. The Owner Trustee shall not be liable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own
negligent action, its own negligent failure to act or its own willful
misconduct or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.6 and expressly made by the Owner Trustee.
In particular, but not by way of limitation (and subject to the exceptions
set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any Receivable or the perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of
the Owner Trust Estate or its ability to generate the distributions and
payments to be made to Certificateholders under this Agreement or to
Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Owner Trustee or of any intervening
assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Seller or the Servicer
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation or
any action of the Administrator, the Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions
of the Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or any amounts payable
with respect to the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of, and makes no representation as to, the validity or sufficiency of
any provision of this Agreement or for the due execution hereof by the Seller
or for the form, character, genuineness, sufficiency, value or validity of
any of the Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates (other than
the certificate of authentication on the Certificates) or of any Receivables
or any related documents, and the Owner Trustee shall in no event assume or
incur any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the
Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall not have any obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture, the Servicer under the Pooling and
Servicing Agreement or NFC under the Purchase Agreement; and
(g) the Owner Trustee shall not be under any obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise
or in relation to this Agreement or any Basic Document, at the request, order
or direction of any of the Certificateholders, unless such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Basic Document shall
not be construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any
such act.
SECTION VI.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4 and Section 6.1(g), the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or
is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and, to the
extent the Owner Trustee acts in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable on account of
such action to any Person. If the Owner Trustee shall not have received
appropriate instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action which is consistent, in its view,
with this Agreement or the Basic Documents, and as it shall deem to be in the
best interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for any such action or inaction.
SECTION VI.5 Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholders, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION VI.6 Representations and Warranties of Owner
Trustee. The Owner Trustee hereby represents and warrants to the Seller, for
the benefit of the Certificateholders, that:
(a) It is a national bank duly organized, validly existing and
in good standing under the federal laws of the United States of America. The
eligibility requirements set forth in Section 6.13 (a) - (c) are satisfied
with respect to it.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Owner Trustee or any order,
writ, judgment or decree of any court, arbitrator or governmental authority
applicable to the Owner Trustee or any of its assets, (ii) shall not violate
any provision of the charter or by-laws of the Owner Trustee, or (iii) shall
not violate any provision of, or constitute, with or without notice or lapse
of time, a default under, or result in the creation or imposition of any lien
on any properties included in the Owner Trust Estate pursuant to the
provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as Owner Trustee under
this Agreement or on the transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or
agency regulating the corporate trust activities of Chase Manhattan Bank USA,
National Association.
(e) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of the
Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
SECTION VI.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such document.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or
the Basic Documents, the Owner Trustee: (i) may act directly or through its
agents, attorneys, custodians or nominees pursuant to agreements entered into
with any of them, and the Owner Trustee shall not be liable for the conduct
or misconduct of such agents, attorneys, custodians or nominees if such
agents, attorneys, custodians or nominees shall have been selected by the
Owner Trustee with reasonable care; and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the opinion
or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any Basic Document.
SECTION VI.8 Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in transactions in the
same manner as it would have if it were not the Owner Trustee.
SECTION VI.9 Compensation and Indemnity. The Owner Trustee
shall receive as compensation from the Seller for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Seller and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed by the Servicer for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, custodians, nominees, representatives, experts and counsel as it may
employ in connection with the exercise and performance of its rights and its
duties hereunder. The Servicer shall indemnify the Owner Trustee and its
successors, assigns, agents and servants in accordance with the provisions of
Section 7.01 of the Pooling and Servicing Agreement. The compensation and
indemnities described in this Section 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. Any
amounts paid to the Owner Trustee pursuant to this Article VI shall not be
deemed to be a part of the Owner Trust Estate immediately after such payment.
SECTION VI.10 Replacement of Owner Trustee.
(a) The Owner Trustee may give notice of its intent to resign
and be discharged from the trusts hereby created by written notice thereof to
the Administrator; provided that no such resignation shall become effective,
and the Owner Trustee shall not resign, prior to the time set forth in
Section 6.10(c). The Administrator may appoint a successor Owner Trustee by
delivering a written instrument, in duplicate, to the resigning Owner Trustee
and the successor Owner Trustee. If no successor Owner Trustee shall have
been appointed and have accepted appointment within 30 days after the giving
of such notice, the resigning Owner Trustee giving such notice may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee. The Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 6.13 and shall fail to resign after
written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign
or is removed or if a vacancy exists in the office of Owner Trustee for any
reason, the Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate (one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee) and shall pay all fees owed to the outgoing Owner
Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section 6.10 shall not become effective and no such resignation shall be
deemed to have occurred until a written acceptance of appointment is
delivered by the successor Owner Trustee to the outgoing Owner Trustee and
the Administrator and all fees and expenses due to the outgoing Owner Trustee
are paid. Any successor Owner Trustee appointed pursuant to this Section
6.10 shall be eligible to act in such capacity in accordance with Section
6.13 and, following compliance with the preceding sentence, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The Administrator shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement. The Administrator and
the predecessor Owner Trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
SECTION VI.11 Merger or Consolidation of Owner Trustee. Any
Person into which the Owner Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder,
provided such Person shall be eligible pursuant to Section 6.13, and without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto; provided, however, that the Owner Trustee shall
mail notice of such merger or consolidation to the Rating Agencies.
SECTION VI.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any Financed
Vehicle may at the time be located, the Administrator and the Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust Estate, or any part
thereof, and, subject to the other provisions of this Section 6.12, such
powers, duties, obligations, rights and trusts as the Administrator and the
Owner Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after the receipt by
it of a request to do so, the Owner Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner 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 Owner 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 Owner 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 Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement (unless such other trustee acts or fails to act at the
direction of such first trustee); and
(iii) the Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee and a copy thereof given to
the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
SECTION VI.13 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times: (a) be a corporation, a national banking
association or a bank; (b) be authorized to exercise corporate trust powers;
(c) have a combined capital and surplus of at least $50,000,000 and be
subject to supervision or examination by federal or state authorities; and
(d) have a long-term unsecured debt rating of at least Baa3 by Xxxxx'x
Investors Service, Inc. or be otherwise satisfactory to Xxxxx'x Investors
Service, Inc. If such Person or bank shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section
6.13, the combined capital and surplus of such Person or bank shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Owner Trustee shall cease to
be eligible in accordance with the provisions of this Section 6.13, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION VII.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate and be of no further force or effect on the final distribution by
the Owner Trustee of all monies or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture, the Pooling and
Servicing Agreement (including the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 9.01 of the Pooling and
Servicing Agreement) and Article V; provided, however, that in no event shall
the Trust created by this Agreement continue beyond the expiration of 21
years from the date hereof. The bankruptcy, liquidation, dissolution, death
or incapacity of any Certificateholder shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Trust or the Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) This Agreement shall be irrevocable. Except as provided in
Section 7.1(a) and in this Section 7.1(b), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement. Each of the Seller and the Owner Trustee acknowledges that the
Indenture Trustee, on behalf of the Noteholders, is a third-party beneficiary
of this Agreement. For so long as the Notes are outstanding, neither the
Trust nor this Agreement shall be revoked without the consent of the
Indenture Trustee. Each of the Seller and the Owner Trustee acknowledges
that the Indenture Trustee, as an agent of the Noteholders, maintains a
legitimate interest in ensuring that the Trust is not revoked prior to the
fulfillment of the Trust objectives. In no event may this Agreement be
amended without the consent of the Indenture Trustee if the effect of such
amendment is the revocation or termination of this Trust other than in
accordance with this Section 7.1.
(c) Notice of any termination of the Trust specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to subsection 9.02(b) of
the Pooling and Servicing Agreement, stating: (i) the Distribution Date upon
or with respect to which the final distribution on the Certificates shall be
made upon presentation and surrender of the Certificates at the office of the
Owner Trustee; (ii) the amount of any such final distribution; and (iii) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
the Certificates at the office of the Owner Trustee therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar (if other
than the Owner Trustee) and the Owner Trustee at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Owner Trustee shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant
to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the written notice specified in Section 7.1(c), the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this Agreement.
Subject to applicable laws with respect to escheat of funds, any funds
remaining in the Owner Trust Estate after exhaustion of such remedies in the
preceding sentence shall be deemed property of the Seller and distributed by
the Owner Trustee to the Seller.
(e) Within sixty days of the later of (i) the cancellation of
all of the Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii)
payment to the Seller of funds remaining in the Owner Trust Estate pursuant
to Section 7.1(d), the Owner Trustee shall provide each of the Rating
Agencies with written notice stating that all Certificates have been so
canceled or such funds have been so paid to the Seller.
ARTICLE VIII
AMENDMENTS
SECTION VIII.1 Amendments Without Consent of
Certificateholders or Noteholders. This Agreement may be amended by the
Seller and the Owner Trustee without the consent of any of the
Securityholders (but with prior notice to each of the Rating Agencies) to
(i) cure any ambiguity, (ii) correct or supplement any provision in this
Agreement that may be defective or inconsistent with any other provision in
this Agreement or any other Basic Document, (iii) add or supplement any
credit enhancement for the benefit of the Securityholders (provided that if
any such addition shall affect any class of Securityholders differently than
any other class of Securityholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any class of the Securityholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee for
the benefit of the Securityholders, (v) evidence and provide for the
acceptance of the appointment of a successor trustee with respect to the
Owner Trust Estate and add to or change any provisions as shall be necessary
to facilitate the administration of the trusts hereunder by more than one
trustee pursuant to Article VI, or (vi) add, change or eliminate any other
provision of this Agreement in any manner that shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Securityholders.
SECTION VIII.2 Amendments With Consent of Certificateholders
and Noteholders. This Agreement may be amended from time to time by the
Seller and the Owner Trustee with the consent of Noteholders whose Notes
evidence not less than a majority of the Outstanding Amount of the Voting
Notes as of the close of business on the preceding Distribution Date and the
consent of the Holders of Certificates evidencing not less than a majority of
the ownership interests in the Owner Trust Estate as of the close of business
on the preceding Distribution Date (which consent, whether given pursuant to
this Section 8.2 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such
Notes or Certificates and of any Notes or Certificates issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Notes or Certificates) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement, or of modifying in any manner the
rights of the Noteholders or the Certificateholders; provided, however, that
no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables
or distributions that shall be required to be made on any Note or the
Specified Reserve Account Balance, (b) reduce the aforesaid percentage
required to consent to any such amendment or (c) amend Section 4.3, without
the consent of the Holders of all of the Notes and the Holders of all of the
Certificates then outstanding. The Administrator shall furnish notice of the
substance of any proposed amendment, supplement or consent under this Section
8.2 to each of the Rating Agencies prior to obtaining consent thereto.
SECTION VIII.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement
or consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee pursuant to
Section 8.2 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof
by Certificateholders and Noteholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to such
execution have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in accordance
with Articles V and VII. No transfer, by operation of law or otherwise, of
any right, title, and interest of the Certificateholders to and in their
ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting
or to the transfer to it of legal title to any part of the Owner Trust Estate.
SECTION IX.2 Limitations on Rights of Others. Except for
Section 9.12, the provisions of this Agreement are solely for the benefit of
the Owner Trustee, the Seller, the Certificateholders, the Administrator and,
to the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy
or claim in the Owner Trust Estate or under or in respect of this Agreement
or any covenants, conditions or provisions contained herein. The
Administrator shall be a third party beneficiary with respect to the rights
granted to it under Section 6.10(a).
SECTION IX.3 Notices. All demands, notices and
communications upon or to the Seller, the Servicer, the Administrator, the
Indenture Trustee, the Owner Trustee, the Rating Agencies or any
Certificateholder under this Agreement shall be delivered as specified in
Appendix B to the Pooling and Servicing Agreement.
SECTION IX.4 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if
not so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Certificates or the rights of the holders thereof.
SECTION IX.5 Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts (and by different parties on
separate counterparts), each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument.
SECTION IX.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Seller, the Owner Trustee and each Certificateholder and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by
a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION IX.7 No Petition Covenant. Notwithstanding any
prior termination of this Agreement, the Owner Trustee, on behalf of the
Trust, and each Certificateholder, by accepting a Certificate (or interest
therein), hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Agreement
acquiesce, petition or otherwise invoke or cause the Seller to invoke the
process of any court or governmental authority for the purpose of commencing
or sustaining a case against the Seller under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller.
SECTION IX.8 No Recourse. Each Certificateholder by
accepting a Certificate (or interest therein) acknowledges that such Person's
Certificate (or interest therein) represents beneficial interests in the
Trust only and does not represent interests in or obligations of the Seller,
the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or
any Affiliate thereof and no recourse, either directly or indirectly, may be
had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents, neither the
Seller, the Servicer nor the Owner Trustee in their respective individual
capacities, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, nor shall recourse be had to any of them for, the distribution of
any amount with respect to the Certificates, or the Owner Trustee's
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Certificates or this Agreement, it being
expressly understood that said covenants and obligations have been made by
the Owner Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or beneficial interest
therein) shall agree that, except as expressly provided in the Basic
Documents, in the case of nonpayment of any amounts with respect to the
Certificates, it shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
SECTION IX.9 Headings. The headings of the various Articles
and Sections herein are for purposes of reference only and shall not affect
the meaning or interpretation of any provision hereof.
SECTION IX.10 Governing Law. This Agreement shall be construed
in accordance with the internal laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
SECTION IX.11 Certificate Transfer Restrictions. The
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code or (iii) any entity whose underlying assets include plan assets
by reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan.
SECTION IX.12 Administrator. The Administrator is authorized to
execute on behalf of the Owner Trustee all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Owner
Trustee to prepare, file or deliver pursuant to the Basic Documents. Upon
request, the Owner Trustee shall execute and deliver to the Administrator a
power of attorney appointing the Administrator its agent and attorney-in-fact
to execute all such documents, reports, filings, instruments, certificates
and opinions.
SECTION IX.13 Amended and Restated Trust Agreement. This Trust
Agreement is the amended and restated trust agreement contemplated by the
Trust Agreement dated as of October 18, 2000 between the Seller and the Owner
Trustee.
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
as Owner Trustee
By:/s/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By:/s/R. Xxxxx Xxxx
R. Xxxxx Xxxx
Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By:
Name: R. Xxxxx Xxxx
Title: Vice President and Treasurer
--------------------------------------------------------------------------------
EXHIBIT A
FORM OF CERTIFICATE
NUMBER
R-__
OWNERSHIP INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT
OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA,
(ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (iii) ANY
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL
EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON NOVEMBER 1, 2000, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER.
Navistar Financial 2000-B Owner Trust
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of retail
loans evidenced by notes secured by new and used medium and heavy
duty trucks, buses and trailers.
(This Certificate does not represent an interest in or obligation
of Navistar Financial Retail Receivables Corporation, Navistar
Financial Corporation, International Truck and Engine
Corporation, Navistar International Corporation, the Owner
Trustee or any of their respective affiliates, except to the
extent described below.)
--------------------------------------------------------------------------------
THIS CERTIFIES THAT _________________________ is the registered
owner of a nonassessable, fully-paid, fractional undivided interest in
Navistar Financial 2000-B Owner Trust (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of
October 18, 2000 (as amended and restated as of November 1, 2000 and as
further amended, restated or supplemented from time to time, the "Trust
Agreement"), between the Seller and Chase Manhattan Bank USA, National
Association, as owner trustee (the "Owner Trustee"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as and to the extent described
in the Pooling and Servicing Agreement and the Indenture.
Each Certificateholder with respect to a Certificate, by its
acceptance of a Certificate, covenants and agrees that such Certificateholder
with respect to a Certificate, shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller.
Distributions on this Certificate shall be made as provided in
the Trust Agreement by the Owner Trustee by wire transfer, check mailed or,
where possible, intra-bank book entry to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate shall be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office maintained for such purpose by
the Owner Trustee in the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Pooling and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Owner Trustee, not in its individual
capacity, but solely as Owner Trustee, has caused this Certificate to be duly
executed.
Dated: ______________, ____
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:/s/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Vice President
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
--------------------------------------------------------------------------------
CHASE MANHATTAN BANK USA, NATIONAL CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION ASSOCIATION,
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee OR as Owner Trustee
by The Chase Manhattan Bank,
as Authenticating Agent
By:_________________________
Authorized Officer By: _________________________
Authorized Officer
--------------------------------------------------------------------------------
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, International Truck and Engine
Corporation, Navistar International Corporation, the Indenture Trustee, the
Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Receivables (and certain other amounts), all
as more specifically set forth herein and in the Trust Agreement and the
Pooling and Servicing Agreement. A copy of each of the Pooling and Servicing
Agreement and the Trust Agreement may be examined during normal business
hours at the principal office of the Seller, and at such other places, if
any, designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the
consent of (i) the Holders of the Notes evidencing not less than a majority
of the Outstanding Amount of the Voting Notes, and (ii) Certificateholders
whose Certificates evidence not less than a majority of the ownership
interest in the Trust, each as of the close of the preceding Distribution
Date. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and on all future Holders of this Certificate and
of any Certificate issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the Holders of any
of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in the City of New York,
accompanied by (i) a written instrument of transfer in form satisfactory to
the Owner Trustee and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing and (ii) certain
opinions required by Section 3.4(b) of the Trust Agreement, and thereupon one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is The
Chase Manhattan Bank, New York, New York.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
--------------------------------------------------------------------------------
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the distribution
to Certificateholders of all amounts required to be distributed to them
pursuant to the Trust Agreement and the Pooling and Servicing Agreement and
the disposition of all property held as part of the Trust.
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________________________
(Please print or type name and address, including postal zip code, of
assignee)
______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to
transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated: _____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
