EXHIBIT 4.2
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TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHEMICAL BANK DELAWARE
OWNER TRUSTEE
DATED AS OF NOVEMBER 1, 1995
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ...........................................................................1
1.1 Definitions.....................................................................1
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ARTICLE II
ORGANIZATION 1
2.1 Name............................................................................1
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2.2 Office..........................................................................1
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2.3 Purposes and Powers.............................................................1
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2.4 Appointment of Owner Trustee....................................................2
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2.5 Initial Capital Contribution of Owner Trust Estate..............................2
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2.6 Declaration of Trust............................................................2
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2.7 Liability of the Seller and the Certificate Owners..............................3
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2.8 Title to Trust Property.........................................................3
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2.9 Situs of Trust..................................................................3
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2.10 Representations and Warranties of the Seller....................................4
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2.11 Tax Treatment...................................................................5
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ARTICLE III
THE CERTIFICATES.......................................................................5
3.1 Initial Certificate Ownership...................................................5
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3.2 Form of the Certificates........................................................5
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3.3 Execution, Authentication and Delivery..........................................6
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3.4 Registration; Registration of Transfer and Exchange of Certificates.............6
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3.5 Mutilated, Destroyed, Lost or Stolen Certificates...............................7
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3.6 Persons Deemed Certificateholders...............................................8
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3.7 Access to List of Certificateholders' Names and Addresses.......................8
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3.8 Maintenance of Corporate Trust Office...........................................8
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3.9 Appointment of Paying Agent.....................................................8
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3.10 Disposition by Seller...........................................................9
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3.11 Book-Entry Certificates.........................................................9
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3.12 Notices to Clearing Agency.....................................................10
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3.13 Definitive Certificates........................................................10
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3.14 Seller as Certificateholder....................................................11
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE..............................................................11
4.1 Prior Notice to Certificateholders with Respect to Certain Matters.............11
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4.2 Action by Certificateholders with Respect to Certain Matters...................11
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4.3 Action by Certificateholders with Respect to Bankruptcy........................12
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4.4 Restrictions on Certificateholders' Power......................................12
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4.5 Majority Control...............................................................12
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES............................................12
5.1 Establishment of Certificate Distribution Account..............................12
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5.2 Application of Trust Funds.....................................................13
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5.3 Method of Payment..............................................................13
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5.4 Accounting and Reports to the Certificateholders, the Internal Revenue Service
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and Others.....................................................................14
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5.5 Signature on Returns; Tax Matters Partner......................................14
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ARTICLE VI
THE OWNER TRUSTEE.....................................................................14
6.1 Duties of Owner Trustee........................................................14
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6.2 Rights of Owner Trustee........................................................15
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6.3 Acceptance of Trusts and Duties................................................16
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6.4 Action upon Instruction by Certificateholders..................................17
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6.5 Furnishing of Documents........................................................18
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6.6 Representations and Warranties of Owner Trustee................................18
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6.7 Reliance; Advice of Counsel....................................................19
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6.8 Owner Trustee May Own Certificates and Notes...................................19
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6.9 Compensation and Indemnity.....................................................19
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6.10 Replacement of Owner Trustee...................................................20
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6.11 Merger or Consolidation of Owner Trustee.......................................21
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6.12 Appointment of Co-Trustee or Separate Trustee..................................21
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6.13 Eligibility Requirements for Owner Trustee.....................................22
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT........................................................23
7.1 Termination of Trust Agreement.................................................23
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7.2 Dissolution upon Bankruptcy of the Seller......................................24
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ARTICLE VIII
AMENDMENTS............................................................................25
8.1 Amendments Without Consent of Certificateholders or Noteholders................25
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8.2 Amendments With Consent of Certificateholders and Noteholders..................25
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8.3 Form of Amendments.............................................................26
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ARTICLE IX
MISCELLANEOUS.........................................................................26
9.1 No Legal Title to Owner Trust Estate...........................................26
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9.2 Limitations on Rights of Others................................................26
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9.3 Notices........................................................................27
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9.4 Severability...................................................................27
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9.5 Counterparts...................................................................27
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9.6 Successors and Assigns.........................................................27
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9.7 No Petition Covenant...........................................................27
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9.8 No Recourse....................................................................27
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9.9 Headings.......................................................................28
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9.10 Governing Law..................................................................28
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9.11 Certificate Transfer Restrictions..............................................28
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9.12 Administrator..................................................................28
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9.13 Amended and Restated Trust Agreement...........................................28
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Certificate Depository Agreement
Exhibit D Form of Undertaking Letter
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TRUST AGREEMENT, dated as of November 1, 1995 between Navistar
Financial Retail Receivables Corporation, a Delaware corporation, as Seller, and
Chemical Bank Delaware, a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this
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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
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the Seller, the Servicer and the 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
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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
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this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
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"Navistar Financial 1995-B Owner Trust" in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the
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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 Certificate Owners
and the Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is to
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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 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, the Pre-
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Funding Account, the Negative Carry 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 enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering 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 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 2.4 Appointment of Owner Trustee. The Seller hereby
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appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
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Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, 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 2.6 Declaration of Trust. The Owner Trustee hereby declares
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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 Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute, that this Agreement constitute the governing instrument of such
business trust and that the Certificates represent the equity interests therein.
The rights of the Certificateholders shall be determined as set forth herein and
in the Business Trust Statute and the relationship between the parties hereto
created by this Agreement shall not constitute indebtedness for any purpose. It
is the intention of the parties hereto
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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 partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Trust
shall file or cause to be filed annual or other necessary returns, reports and
other forms consis tent with the characterization of the Trust as partnership
for such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth in this Agreement, the Pooling and
Servicing Agreement and the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Seller and the Certificate Owners.
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(a) The Seller shall be liable directly to and shall indemnify the
injured party for all losses, claims, damages, liabilities and expenses of the
Trust (including Expenses, to the extent not paid out of the Owner Trust Estate)
to the extent that the Seller would be liable if the Trust were a partnership
under the Delaware Revised Uniform Limited Partnership Act in which the Seller
were a general partner; provided, however, that the Seller shall not be liable
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for (i) any losses incurred by a Certificateholder or a Certificate Owner in its
capacity as an investor in the Certificates or by a Noteholder or Note Owner in
its capacity as an investor in the Notes or (ii) any losses, claims, damages,
liabilities and expenses arising out of the imposition by any taxing authority
of any federal income taxes, state or local income or franchise taxes, or any
other taxes imposed on or measured by gross or net income, gross or net
receipts, capital, net worth and similar items (including any interest,
penalties or additions with respect thereto) upon the Certificateholders, the
Certificate Owners, the Noteholders, the Note Owners, the Owner Trustee or the
Indenture Trustee (including any liabilities, costs or expenses with respect
thereto) with respect to any Receivables not specifically indemnified or
represented to hereunder. In addition, any third party creditors of the Trust
(other than in connection with the obligations described in the preceding
sentence for which the Seller shall not be liable) shall be deemed third party
beneficiaries of this subsection 2.7(a). The obligations of the Seller under
this subsection 2.7(a) shall be evidenced by the Certificates issued pursuant to
Section 3.10, which for purposes of the Business Trust Statute shall be deemed
to be a separate class of Certificates from all other Certificates issued by the
Trust; provided, however, that the rights and obligations evidenced by all
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Certificates, regardless of class, shall, except as provided in this subsection
2.7(a) and as provided with respect to Voting Interests, be identical.
(b) No Certificateholder or Certificate Owner, other than to the
extent set forth in subsection 2.7(a) with respect to the Seller, shall have any
personal liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner
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Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and
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administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be
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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
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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 Trust only in Delaware or New York, and payments and distributions shall
be made by the Trust only from Delaware or New York. The only office of the
Trust shall be the Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The
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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 Issuer as part of the Trust and the Seller has duly
authorized such sale and assignment to the Issuer 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.
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(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.
SECTION 2.11 Tax Treatment. The Seller and the Owner Trustee, by
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entering into this Agreement, and the Certificateholders and Certificate Owners,
by acquiring any Certificate or interest therein, (i) express their intention
that the Certificates will qualify under applicable tax law as partnership
interests in a partnership which holds the Owner Trust Estate for their benefit,
and (ii) unless otherwise required by appropriate taxing authorities, agree to
treat the Certificates as partnership interests in such a partnership for the
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.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of
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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 3.2 Form of the Certificates.
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(a) The Certificates shall be substantially in the form set forth in
Exhibit A and shall be issued (i) in minimum denominations of $20,000 and (ii)
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in integral multiples of $1,000 in excess thereof, except for one Certificate
which may be issued to the Seller in any denomination. 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 Trust, 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 Definitive 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.
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(c) The Certificates shall be issued in fully-registered form. The
terms of the Certificates set forth in Exhibit A shall form part of this
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Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently
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with the sale of the Initial Receivables to the Trust pursuant to the Pooling
and Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller, in
authorized denominations. No 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 Chemical
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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 3.4 Registration; Registration of Transfer and Exchange of
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Certificates.
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(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; provided, however, that no
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Certificate may be subdivided upon registration of transfer or exchange such
that the denomination of any resulting Certificate would have been less than
$20,000 if such Certificate had been issued in the initial distribution of
Certificates. Chemical 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) 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 on behalf of the Trust, authenticate and deliver (or shall cause
Chemical 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.
Notwithstanding the foregoing, if the Seller shall have advised the Owner
Trustee in writing that an Undertaking Letter shall be required with respect to
any transfer, such registration of transfer shall not be effective unless the
requirements of Section 9.11, with respect to the delivery of an Undertaking
Letter, shall have been complied with.
(c) At the option of a Holder, Certificates may be exchanged for
other Certificates of authorized denominations of a like aggregate principal
amount 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 on behalf of the
Trust, authenticate and deliver (or shall cause Chemical 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.
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(d) 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 and such other
documents and instruments as may be required by Section 9.11. Each Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently destroyed or otherwise disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(e) 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 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
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(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 and the Trust
such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Certificate has been acquired by a bona fide purchaser,
the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee
shall authenticate and deliver (or shall cause Chemical 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,
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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.
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(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 of the Trust, 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 3.6 Persons Deemed Certificateholders. Prior to due
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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 3.7 Access to List of Certificateholders' Names and
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Addresses. The Owner Trustee shall furnish or cause to be furnished to the
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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 3.8 Maintenance of Corporate Trust Office. The Owner
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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 Chemical
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 3.9 Appointment of Paying Agent. The Paying Agent shall
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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 Chemical Bank, and any co-paying agent chosen by Chemical
Bank, and acceptable to the Owner Trustee. Chemical Bank shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner Trustee. If
Chemical Bank shall no longer be the Paying
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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 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 3.10 Disposition by Seller. On and after the Closing Date,
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the Seller shall retain beneficial and record ownership of Certificates
representing at least 1% of the Certificate Balance. Any attempted transfer of
any Certificate that would reduce such interest of the Seller below 1% of the
Certificate Balance shall be void. The Owner Trustee shall cause any
Certificate issued to the Seller to contain a legend stating "THIS CERTIFICATE
IS NOT TRANSFERABLE". Certificates issued to the Seller shall be in definitive
form only.
SECTION 3.11 Book-Entry Certificates. Except for the Certificates
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issued to the Seller, the Certificates, upon original issuance, shall be issued
in the form of a typewritten Certificate or Certificates representing Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Trust. Such Certificate or Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner shall
receive a definitive Certificate representing such Certificate Owner's interest
in such Certificate, except as provided in Section 3.13. Unless and until
definitive fully registered Certificates (the "Definitive Certificates") shall
have been issued to Certificate Owners pursuant to Section 3.13:
(a) the provisions of this Section 3.11 shall be in full force and
effect;
(b) the Certificate Registrar and the Owner Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Agreement
(including the distribution of Certificate Balance and interest on the
Certificates and the giving of instructions or directions hereunder) as the
sole Holder of the Certificate, and shall have no obligation to the
Certificate Owners;
(c) to the extent that the provisions of this Section 3.11 conflict
with any other provisions of this Agreement, the provisions of this Section
3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants.
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Pursuant to the Certificate Depository Agreement in the form attached as
Exhibit C, unless and until Definitive Certificates are issued pursuant to
---------
Section 3.13, the initial Clearing Agency shall make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of Certificate Balance and interest on the Certificates to
such Clearing Agency Participants;
(e) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Holders of Certificates evidencing
a specified percentage of the Voting Interests, the Clearing Agency shall
be deemed to represent such percentage only to the extent that it has
received written instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of Voting Interests and has delivered such instructions
to the Owner Trustee; provided, however, that the provisions of this
-------- -------
Section 3.11 shall not be applicable in respect of Certificates issued to
the Seller. The Seller or the Owner Trustee may set a record date for the
purpose of determining the identity of Holders of Certificates entitled to
vote or to consent to any action by vote as provided in this Agreement.
SECTION 3.12 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency and shall have no further obligation to the Certificate Owners.
SECTION 3.13 Definitive Certificates. If (i) the Administrator
-----------------------
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates, and the Administrator is unable to locate a qualified successor,
(ii) the Administrator at its option advises the Owner Trustee in writing that
it elects to terminate the book-entry system through the Clearing Agency or
(iii) after the occurrence of an Event of Default or a Servicer Default,
Certificate Owners representing beneficial interests aggregating at least a
majority of the Voting Interests advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Certificate Owners, then the Clearing Agency shall
notify all Certificate Owners and the Owner Trustee of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Owner Trustee of the
typewritten Certificate or Certificates representing the Book-Entry Certificates
by the Clearing Agency, accompanied by registration instructions, the Owner
Trustee shall execute and authenticate the Definitive Certificates in accordance
with the instructions of the Clearing Agency. Neither the Certificate Registrar
nor the Owner Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Owner
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders.
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SECTION 3.14 Seller as Certificateholder. The Seller in its
---------------------------
individual or any other capacity may, subject to Section 3.10, 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 4.1 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 by the Trust (other than
an action to collect on a Receivable) and the compromise of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on a Receivable);
(b) the election by the Trust to file an amendment to the Certificate
of Trust, a conformed copy of which is attached hereto as Exhibit B;
---------
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) 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;
(e) 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; or
(f) 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.
SECTION 4.2 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
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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 4.3 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 4.4 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 4.5 Majority Control. Except as expressly provided herein,
----------------
any action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests thereof. 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 Voting Interests at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
-------------------------------------------------
(a) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain at Chemical Bank in the name of the Owner Trustee an
Eligible Deposit Account known as the Navistar Financial 1995-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.
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SECTION 5.2 Application of Trust Funds.
--------------------------
(a) On each Distribution Date, the Owner Trustee shall distribute to
the Certificateholders, on a pro rata basis, amounts deposited in the
Certificate Distribution Account pursuant to Sections 4.06 and 5.02(b) of the
Pooling and Servicing Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send 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 the Trust's distributions
(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 owed by 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 Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
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 on behalf of the
Trust 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 5.3 Method of Payment. Subject to subsection 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, if (x) the
Certificates are Definitive Certificates, 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 Holder on such Distribution Date exceeds $100,000 or (y) the
Certificates are Book-Entry Certificates, or, (ii) if neither clause (i)(x) nor
(i)(y) is applicable, by check mailed to such Certificateholder at the address
of such Holder appearing in the Certificate Register.
SECTION 5.4 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
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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 partnership 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. In preparing and filing tax returns for the Trust, the
Owner Trustee shall allocate taxable income of the Trust for each Monthly Period
in the following manner: (A) to the Certificateholders, in an amount equal to
the sum of (1) the product of the Pass Through Rate multiplied by the
Certificate Balance as of the last day of such month, (2) the amount specified
in clause (iii) of the definition of Certificateholders' Interest Distributable
Amount for such Monthly Period, (3) any Trust income attributable to discount on
the Receivables that corresponds to any excess of the principal amount of the
Certificates over their initial issue price, and (4) any Prepayment Surplus
payable to holders of the Certificates for such month; and (B) to the Seller, if
and to the extent that the taxable income of the Trust for each month exceeds
the amount computed under (A) above. Unless otherwise permitted or required by
any applicable law or regulation, the Owner Trustee shall allocate amounts of
taxable income of the Trust for a particular calendar month among the
Certificateholders in proportion to the principal amount of Certificates owned
by them as of the first Record Date following the end of such month.
SECTION 5.5 Signature on Returns; Tax Matters Partner. 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. The Seller shall be
the "tax matters partner" of the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 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
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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 6.2 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 the Trust is to be a party, 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 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.
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SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
-------------------------------
provided in this Article VI, in accepting the trusts hereby created, Chemical
Bank Delaware 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 the Basic
Documents and 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 Trust 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 the Certificate
Balance of and interest on the Certificates;
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(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 have no 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 be under no 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 6.4 Action upon Instruction by Certificateholders.
---------------------------------------------
(a) Subject to Section 4.4, 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
-17-
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 6.5 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 6.6 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 banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation. 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 corporate 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 Trust 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 Chemical Bank Delaware.
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(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 6.7 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 6.8 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 6.9 Compensation and Indemnity. The Owner Trustee shall
--------------------------
receive as compensation 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 the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee
-19-
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 be deemed not to be a part of the Owner Trust Estate immediately after
such payment.
SECTION 6.10 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.
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(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 6.11 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 6.12 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the 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 Trust, 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 so to do, 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
-21-
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 Trust
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 6.13 Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times: (a) be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (b) be authorized to exercise
corporate trust powers; (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by federal or state
authorities; and (d) have a long-term unsecured debt rating of at least Baa3 by
Xxxxx'x Investors Service, Inc. or be otherwise satisfactory to Xxxxx'x
Investors Service, Inc. If such corporation 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 corporation 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.
-22-
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 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 earlier of: (i) 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(a) of the Pooling
and Servicing Agreement) and Article V or (ii) at the time provided in Section
7.2. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder, other than the Seller as described in Section 7.2, 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) Except as provided in Section 7.1(a), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement.
(c) Notice of any termination of the Trust, except as otherwise
provided in Section 7.2, specifying the Distribution Date upon which the
Certificateholders shall surrender their Certificates to the Paying Agent 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 Paying Agent therein designated; (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 Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Paying Agent 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
-23-
remaining in the Trust 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) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
(f) 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 Trust 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 cancelled or such funds have been so
paid to the Seller.
SECTION 7.2 Dissolution upon Bankruptcy of the Seller. Subject to
-----------------------------------------
the liquidation, winding-up and dissolution procedures described below, upon the
occurrence of an Insolvency Event with respect to the Seller, the Trust shall
terminate, provided that the rights and obligations of the parties to this
Agreement shall not terminate during such liquidation, winding-up and
dissolution. Promptly after the occurrence of any Insolvency Event with respect
to the Seller: (i) the Seller shall give the Indenture Trustee and the Owner
Trustee written notice of such Insolvency Event, (ii) the Owner Trustee shall,
upon the receipt of such written notice from the Seller, give prompt written
notice to the Certificateholders and the Indenture Trustee of the occurrence of
such event and (iii) pursuant to Section 3.23 of the Indenture, the Indenture
Trustee shall, upon receipt of written notice of such Insolvency Event from the
Owner Trustee or the Seller, give prompt written notice to the Noteholders of
the occurrence of such event; provided, however, that any failure to give a
-------- -------
notice required by this sentence shall not prevent or delay in any manner a
termination of the Trust pursuant to the first sentence of this Section 7.2.
Ninety days after the date the Seller gives the notice described in the
preceding sentence, unless the Owner Trustee shall have received written
instructions from (a) Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date and (b) Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date, to the effect that such Persons disapprove of the prospective
liquidation of the assets held by the Trust and the prospective termination of
the Trust and wish to reconstitute the Trust pursuant to terms corresponding to
the terms of this Agreement, the Owner Trustee shall direct the Indenture
Trustee to promptly sell, dispose of or otherwise liquidate or realize upon the
assets of the Trust (other than the Designated Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on commercially
reasonable terms (which may include continuing to hold the Receivables and
receiving collections thereon). The proceeds of any such sale, disposition or
liquidation of the assets of the Trust shall be treated as collections on the
Receivables and deposited in the Collection Account pursuant to Section 9.02(a)
of the Pooling and Servicing Agreement, and thereupon this Agreement and the
respective obligations and responsibilities of the Seller, the Servicer, the
Owner Trustee and the Indenture Trustee shall terminate (except as otherwise
expressly provided herein).
-24-
ARTICLE VIII
AMENDMENTS
SECTION 8.1 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 Noteholders or the Certificateholders (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
Noteholders or the Certificateholders (provided that if any such addition
--------
shall affect any class of Noteholders or Certificateholders differently than any
other class of Noteholders or Certificateholders, 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 Noteholders or the Certificateholders), (iv)
add to the covenants, restrictions or obligations of the Seller or the Owner
Trustee for the benefit of the Noteholders or Certificateholders, (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 Noteholders or the Certificateholders.
SECTION 8.2 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 Notes as of the close of
business on the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests 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
Certificate, the Pass Through Rate or the Specified Reserve Account Balance, (b)
reduce the aforesaid percentage required to consent to any such amendment or (c)
amend Section 4.3 or Section 7.2, without the consent of the Holders of all of
the Notes and all of the Voting Interests with respect to 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 8.3 Form of Amendments.
------------------
-25-
(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) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, 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 9.1 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 9.2 Limitations on Rights of Others. Except for Section 2.7
-------------------------------
and 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.
-26-
SECTION 9.3 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 9.4 Severability. If any one or more of the covenants,
------------
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the
------------
parties hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the 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 9.7 No Petition Covenant. Notwithstanding any prior
--------------------
termination of this Agreement, the Trust (or the Owner Trustee on behalf of the
Trust), and each Certificateholder or Certificate Owner, 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 9.8 No Recourse. Each Certificateholder or Certificate
-----------
Owner 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 Certificate Balance with respect to
or interest on the Certificates, or the Owner Trustee's
-27-
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 or Certificate Owner 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 9.9 Headings. The headings of the various Articles and
--------
Sections herein are for purposes of reference only and shall not affect the
meaning or interpretation of any provision hereof.
SECTION 9.10 GOVERNING LAW. THIS AGREEMENT SHALL BE 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 9.11 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 and the Certificate Owner shall each be deemed
to have represented and warranted that it is not a Benefit Plan and, if
requested to do so by the Seller, the Certificateholder and the Certificate
Owner shall execute and deliver to the Owner Trustee an Undertaking Letter in
the form set forth in Exhibit D. The Certificates are also subject to the
---------
minimum denomination specified in Section 3.2(a).
SECTION 9.12 Administrator. The Administrator is authorized to
-------------
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust 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 9.13 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, 1995 between the Seller and the Owner Trustee.
-28-
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.
CHEMICAL BANK DELAWARE
as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By: /s/ R. Xxxxx Xxxx
---------------------------------
Name: R. Xxxxx Xxxx
Title: Vice President
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By: /s/ R. Xxxxx Xxxx
----------------------------
Name: R. Xxxxx Xxxx
Title: Vice President
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $ __________
R- CUSIP NO. __________
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR DISTRIBUTION,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY DISTRIBUTION IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
[PURSUANT TO THE TRUST AGREEMENT, NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION ("NFRRC") SHALL RETAIN BENEFICIAL AND RECORD
OWNERSHIP OF CERTIFICATES REPRESENTING AT LEAST 1% OF THE CERTIFICATE
BALANCE, AND ANY ATTEMPTED TRANSFER OF THIS CERTIFICATE THAT REDUCES THE
BENEFICIAL AND RECORD INTEREST OF NFRRC TO BELOW 1% OF THE CERTIFICATE
BALANCE SHALL BE VOID.]
Navistar Financial 1995-B Owner Trust
6.22% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail instalment sale contracts
for, and retail loans evidenced by notes secured by, new and used medium
and heavy duty trucks, buses and trailers, which contracts and loans have
been sold to the Trust by Navistar Financial Retail Receivables
Corporation.
(This Certificate does not represent an interest in or obligation of
Navistar Financial Retail Receivables Corporation, Navistar Financial
Corporation, Navistar International Transportation Corp., 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 1995-B Owner Trust (the "Trust") formed by Navistar Financial Retail
Receivables Corporation, a Delaware corporation, (the "Seller").
The Trust was created pursuant to a trust agreement, dated as of
October 18, 1995(as amended and restated as of November 1, 1995 and as further
amended, restated or supplemented from time to time, the "Trust Agreement"),
between the Seller and CHEMICAL BANK DELAWARE, 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 one of the duly authorized Certificates designated
as "6.22%Asset Backed Certificates" (the "Certificates"). 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.
Under the Trust Agreement, there shall be distributed on the 15th day
of each calendar month or, if such 15th day is not a Business Day, the next
succeeding Business Day, commencing on November 15, 1995 (each, a "Distribution
Date"), to the Person in whose name this Certificate is registered on the
related Record Date (as defined below), such Certificateholder's fractional
undivided interest in the amount of interest on and distributions in respect of
Certificate Balance to be distributed to Certificateholders on such Distribution
Date; provided, however, that the Certificateholder's Principal Distributable
-------- -------
Amount will be zero until the Notes have been paid in full. The entire unpaid
Certificate Balance on this Certificate shall be due and payable on the
Distribution Date in April 15, 2002 (the "Final Scheduled Payment Date"). The
"Record Date," with respect to any Distribution Date, means the close of
business on the day immediately preceding such Distribution Date, or if
Definitive Certificates are issued, the last day of the preceding Monthly
Period.
The distributions in respect of Certificate Balance and interest on
this Certificate are payable in such coin or currency of the United States of
America as at the time of distribution is legal tender for payment of public and
private debts. All distributions made by the Trust with
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respect to this Certificate shall be applied first to interest due and payable
on this Certificate as provided above and then to the unpaid distributions in
respect of Certificate Balance of this Certificate.
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.
It is the intention of the Seller, the Servicer and the
Certificateholders and Certificate Owners that, solely for purposes of federal
income, 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 partnership. Except as otherwise required by appropriate taxing
authorities, the Seller and the other Certificateholders and Certificate Owners
by acceptance of a Certificate (or interest therein), agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for such tax
purposes as interests in such partnership.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, 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 or check mailed 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
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
distributions shall be made by wire transfer in immediately available funds to
the account designated by such nominee. 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
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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.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
NAVISTAR FINANCIAL 1995-B OWNER
TRUST
CHEMICAL BANK DELAWARE,
not in its individual capacity but
solely as Owner Trustee
Dated: ___________________________ By: _________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
CHEMICAL BANK DELAWARE CHEMICAL BANK DELAWARE,
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee OR as Owner Trustee
by Chemical Bank,
as Authenticating Agent
By:_________________________ By: _________________________
Authorized Officer Authorized Officer
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, Navistar International Transportation Corp., 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
Notes and (ii) Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests, 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 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, the Certificates will be prepaid,
in part, on the Distribution Date on which the Funding Period ends (or on the
Distribution Date immediately following the last day of the Funding Period, if
the Funding Period does not end on a Distribution Date) in the event that the
Pre-Funded Amount exceeds $100,000 on such date, after giving effect to all
purchases of Subsequent Receivables including any such purchase on such date.
The aggregate principal amount of Certificates to be prepaid will equal the
Certificateholders' Pre-Funded Percentage of the remaining Pre-Funded Amount.
In addition, the Trust will be obligated to pay the Certificateholders'
Prepayment Premium to the Certificateholders in connection with any such
mandatory prepayment of Certificates.
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) if requested by the Seller, the
Undertaking Letter required by Section 9.11(a) of the Trust Agreement, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest
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in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is Chemical Bank, New
York, New York.
The Certificates are issuable only as registered Certificates without
coupons (i) in denominations of $20,000 or (ii) integral multiples of $1,000 in
excess thereof, except for one Certificate which may be issued to the Seller in
any denomination. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same; provided,
--------
however, that no Certificate may be subdivided upon registration of transfer or
-------
exchange in a manner such that the denomination of any resulting Certificate
would have been less than $20,000 if such Certificate had been issued in the
original distribution of Certificates. No service charge shall be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
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. The Servicer of the Receivables may
at its option purchase the assets of the Trust other than the Designated
Accounts and the Certificate Distribution Account at a price specified in the
Pooling and Servicing Agreement, and such purchase of the Receivables and other
property of the Trust shall effect early retirement of the Certificates;
provided, however, that such right of purchase is exercisable only as of the
-------- -------
last day of any Monthly Period as of which the Aggregate Receivables Balance is
10% or less of the Aggregate Starting Receivables Balance.
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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.
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EXHIBIT B
CERTIFICATE OF TRUST OF
Navistar Financial 1995-B Owner Trust
-------------------------------------
THIS Certificate of Trust of Navistar Financial 1995-B Owner Trust
(the "Trust"), dated as of October 18, 1995 is being duly executed and filed by
CHEMICAL BANK DELAWARE, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. C. (S)3801 et
------- --
seq.).
---
1. Name. The name of the business trust formed hereby is Navistar
----
Financial 1995-B Owner Trust.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware is CHEMICAL BANK DELAWARE, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust shall be effective on October 18, 1995.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
CHEMICAL BANK DELAWARE, not in its individual
capacity but solely as trustee of the Trust.
By: _______________________________
Name:
Title:
EXHIBIT C
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
EXHIBIT D
FORM OF UNDERTAKING LETTER
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