Exhibit 4.3
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TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF OCTOBER 31, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ........................................................................ 1
SECTION 1.1 Definitions .................................................................. 1
ARTICLE II ORGANIZATION ...................................................................... 1
SECTION 2.1 Name ......................................................................... 1
SECTION 2.2 Office ....................................................................... 1
SECTION 2.3 Purposes and Powers .......................................................... 1
SECTION 2.4 Appointment of Owner Trustee ................................................. 2
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate ........................... 2
SECTION 2.6 Declaration of Trust ......................................................... 3
SECTION 2.7 Liability of the Certificateholders .......................................... 3
SECTION 2.8 Title to Trust Property ...................................................... 3
SECTION 2.9 Situs of Trust ............................................................... 3
SECTION 2.10 Representations and Warranties of the Seller ................................ 4
ARTICLE III THE CERTIFICATES ................................................................. 5
SECTION 3.1 Initial Certificate Ownership ................................................ 5
SECTION 3.2 Form of the Certificates ..................................................... 5
SECTION 3.3 Execution, Authentication and Delivery ....................................... 5
SECTION 3.4 Registration; Registration of Transfer and Exchange of Certificates .......... 6
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates ............................ 7
SECTION 3.6 Persons Deemed Certificateholders ............................................ 8
SECTION 3.7 Access to List of Certificateholders' Names and Addresses .................... 8
SECTION 3.8 Maintenance of Corporate Trust Office ........................................ 8
SECTION 3.9 Appointment of Paying Agent .................................................. 8
SECTION 3.10 Seller as Certificateholder ................................................. 9
ARTICLE IV ACTIONS BY OWNER TRUSTEE .......................................................... 9
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain Matters ........... 9
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters ................. 10
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy ...................... 10
SECTION 4.4 Restrictions on Certificateholders' Power .................................... 10
SECTION 4.5 Majority Control ............................................................. 10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES ......................................... 11
SECTION 5.1 Establishment of Certificate Distribution Account ............................ 11
SECTION 5.2 Application of Trust Funds ................................................... 11
SECTION 5.3 Method of Payment ............................................................ 12
SECTION 5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others ................................................... 12
SECTION 5.5 Signature on Returns ......................................................... 12
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ARTICLE VI THE OWNER TRUSTEE ................................................................. 12
SECTION 6.1 Duties of Owner Trustee ...................................................... 12
SECTION 6.2 Authority of Owner Trustee ................................................... 14
SECTION 6.3 Acceptance of Trusts and Duties .............................................. 14
SECTION 6.4 Action upon Instruction by Certificateholders ................................ 15
SECTION 6.5 Furnishing of Documents ...................................................... 16
SECTION 6.6 Representations and Warranties of Owner Trustee .............................. 16
SECTION 6.7 Reliance; Advice of Counsel .................................................. 17
SECTION 6.8 Owner Trustee May Own Certificates and Notes ................................. 17
SECTION 6.9 Compensation and Indemnity ................................................... 17
SECTION 6.10 Replacement of Owner Trustee ................................................ 18
SECTION 6.11 Merger or Consolidation of Owner Trustee .................................... 19
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee ............................... 19
SECTION 6.13 Eligibility Requirements for Owner Trustee .................................. 20
ARTICLE VII TERMINATION OF TRUST AGREEMENT ................................................... 21
SECTION 7.1 Termination of Trust Agreement ............................................... 21
ARTICLE VIII AMENDMENTS ...................................................................... 22
SECTION 8.1 Amendments Without Consent of Certificateholders or Noteholders .............. 22
SECTION 8.2 Amendments With Consent of Certificateholders and Noteholders ................ 22
SECTION 8.3 Form of Amendments ........................................................... 23
ARTICLE IX MISCELLANEOUS ..................................................................... 24
SECTION 9.1 No Legal Title to Owner Trust Estate ......................................... 24
SECTION 9.2 Limitations on Rights of Others .............................................. 24
SECTION 9.3 Notices ...................................................................... 24
SECTION 9.4 Severability ................................................................. 24
SECTION 9.5 Counterparts ................................................................. 24
SECTION 9.6 Successors and Assigns ....................................................... 24
SECTION 9.7 No Petition Covenant ......................................................... 24
SECTION 9.8 No Recourse .................................................................. 25
SECTION 9.9 Headings ..................................................................... 25
SECTION 9.10 Governing Law ............................................................... 25
SECTION 9.11 Administrator ............................................................... 25
SECTION 9.12 Amended and Restated Trust Agreement ........................................ 25
EXHIBITS
Exhibit A orm of Certificate
Exhibit B orm of Certificate of Trust
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TRUST AGREEMENT, dated as of October 31, 2003 between Navistar
Financial Retail Receivables Corporation, a Delaware corporation, as Seller, and
Chase Manhattan Bank USA, National Association, a national banking association,
as Owner Trustee.
WHEREAS, the Seller and the Owner Trustee desire to amend and restate
the original Trust Agreement, dated as of October 3, 2003, in its entirety.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Pooling Agreement of even date herewith, between the Seller and the Trust
(as it may be amended and supplemented from time to time, the "Pooling
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
this Trust Agreement as it may be amended and supplemented from time to time,
the Exhibits hereto and the capitalized terms used herein which are defined in
such Appendix A, and all references herein to Articles, Sections and subsections
are to Articles, Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust continued hereby shall be known as "Navistar
Financial 2003-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 the Trust may xxx and be sued.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office of the Owner Trustee or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Seller.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is, and the Trust
shall have the power and authority, and is authorized, to engage in the
following activities:
(i) to acquire, manage and hold the Receivables and the
Related Security;
(ii) to acquire, manage and hold the Series 2003-B
Portfolio Certificate and the Series 2003-B Portfolio Interest
represented thereby;
(iii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and to transfer and exchange the Certificates;
(iv) to acquire property and assets from the Seller
pursuant to the Pooling Agreement, to make payments or
distributions on the Securities to the Securityholders, to make
deposits into and withdrawals from the Reserve Account, the
Pre-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;
(v) to assign, grant, transfer, pledge, mortgage and
convey the Owner 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, the
Pooling Agreement and the Servicing Agreement any portion of the
Owner Trust Estate released from the lien of, and remitted to the
Trust pursuant to, the Indenture;
(vi) to enter into and perform its obligations and
exercise its rights under the Basic Documents to which it is to
be a party;
(vii) 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, including entering into interest rate
swaps and caps and other derivative instruments; and
(viii) 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;
provided, however, that the Trust may enter into derivatives only if such
derivatives are passive and entered into concurrently with the execution of this
Agreement or, if entered into after the execution of this Agreement, are entered
into to replace a terminated derivative.
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 appoints
Chase Manhattan Bank USA, National Association as trustee of the Trust (the
"Owner Trustee") effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
Seller hereby sells, assigns and transfers to the Trust, and conveys and sets
over to the Owner Trustee, on behalf of the Trust, as of the date hereof, the
sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the
Seller, as of the date hereof, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the
Certificate Distribution Account. The Seller shall pay organizational expenses
of the Trust as they may
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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
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions and obligations set forth herein, in the Pooling Agreement and in the
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 statutory trust under the
Statutory Trust Statute, that this Agreement constitute the governing instrument
of such statutory trust and that the Certificates represent the beneficial
interests therein. The rights of the Certificateholders shall be determined as
set forth herein and in the Statutory Trust Statute and the relationship between
the parties hereto created by this Agreement shall not constitute indebtedness
for any purpose. It is the intention of the parties hereto that, solely for
purposes of federal income taxes, state and local income and franchise taxes,
and any other taxes imposed upon, measured by, or based upon gross or net
income, the Trust shall be treated as a division or branch of the Seller. 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 consistent with the characterization of the Trust as a
division or branch of the Seller for such tax purposes; provided, however, that
until the Seller receives a ruling from the Illinois Department of Revenue or an
opinion of counsel reasonably acceptable to the Owner Trustee that the Trust
will be treated as a branch or division of the Seller for purposes of the
Illinois Income Tax Act and the Illinois Personal Property Tax Replacement Tax
Act, for purposes of the Illinois Income Tax Act and the Illinois Personal
Property Tax Replacement Tax Act, the Seller will (i) include the taxable income
of the Trust in the combined tax return filed by the combined group that
includes the Seller, (ii) take all steps necessary to treat the Trust as a
member of the same combined group of which the Seller is a member and (iii)
provide information to the Owner Trustee to confirm that the actions required by
clauses (i) and (ii) have been effected. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth in this
Agreement, the Pooling Agreement, the Servicing Agreement and the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust subject to
the terms and conditions of the Basic Documents.
SECTION 2.7 Liability of the Certificateholders. No Certificateholder
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
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 other trustees, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the Trust
or the Owner Trustee on behalf of the Trust or for the benefit of the
Certificateholders shall be located in the State of Delaware or the State of New
York. The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
shall be received by the Trust
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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 of the Owner Trustee in Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted and had
at all relevant times, and now has, power, authority and legal right to acquire
and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver
this Agreement and to carry out its terms, the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust, and the Seller has duly authorized such sale and
assignment to the Trust by all necessary corporate action, and the execution,
delivery and performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents), or violate any law or, to the Seller's
knowledge, any order, rule or regulation applicable to the Seller of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any Certificates issued pursuant
hereto or, (ii) seeking to prevent the issuance of such Certificates or the
consummation of any of the transactions contemplated by this Agreement or (iii)
seeking any determination or
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ruling that might materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, such
Certificates or this Agreement.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the
Trust by the contribution by the Seller pursuant to Section 2.5 and until the
issuance of the Certificates, the Seller shall be the sole beneficiary of the
Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set forth
in Exhibit A. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Responsible Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authenticated pursuant to Section 3.3,
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders) all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form and
shall be in definitive form only. The terms of the Certificates set forth in
Exhibit A shall form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with
the sale of the Initial Receivables to the Trust pursuant to the Pooling
Agreement, the Owner Trustee shall cause the Certificates to be executed on
behalf of the Trust, and to be authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller, in
authorized denominations. No 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 by the Person
appointed from time to time as the Owner Trustee's authenticating agent
hereunder (the "Authenticating Agent") by manual signature. The Owner Trustee
hereby appoints JPMorgan Chase Bank as the initial Authenticating Agent. 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.
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SECTION 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. The Certificate Registrar shall be
appointed by and may be removed by the Owner Trustee. The Owner Trustee hereby
appoints JPMorgan Chase Bank as the initial Certificate Registrar. Upon any
resignation of a Certificate Registrar, the Owner Trustee shall promptly appoint
a successor or, if it elects not to make such an appointment, assume the duties
of Certificate Registrar.
(b) The initial Certificateholders may at any time, without
consent of the Noteholders, sell, transfer, convey or assign in any manner its
rights to and interests in the Certificates (including its right to
distributions from the Reserve Account), provided that: (i) such action will not
result in a reduction or withdrawal of the rating of any class of Notes, (ii)
the Certificateholders provide to the Owner Trustee and the Indenture Trustee an
opinion of independent counsel that such action will not cause the Trust to be
treated as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes, (iii) such transferee or assignee
agrees to take positions for tax purposes consistent with the tax positions
agreed to be taken by the Certificateholders and (iv) the conditions set forth
in Section 3.4(g) have been satisfied. In addition, no transfer of a Certificate
shall be registered unless the transferee shall have provided to the Owner
Trustee and the Certificate Registrar an opinion of counsel that in connection
with such transfer no registration of the Certificates is required under the
Securities Act or applicable state law or that such transfer is otherwise being
made in accordance with all applicable federal and state securities laws.
(c) Subject to Section 3.4(b), upon surrender for registration of
transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause its Authenticating Agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged for
other Certificates of a like aggregate percentage interest upon surrender of the
Certificates to be exchanged at the Corporate Trust Office or the office or
agency 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 its Authenticating Agent to
authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any Authenticating Agent. Such
Certificates shall be delivered to the Holder making the exchange.
(e) Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall
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be canceled and subsequently destroyed or otherwise disposed of by the Owner
Trustee or Certificate Registrar in accordance with its customary practice.
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(g) The Certificates may not be acquired by or for the account of
(i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (each, a "Benefit Plan").
By accepting and holding a Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Owner Trustee 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, the
Owner Trustee or the Trust that such Certificate has been acquired by a
protected purchaser, the Owner Trustee shall execute on behalf of the Trust and
the Owner Trustee shall authenticate and deliver (or shall cause its
Authenticating Agent to authenticate and deliver), in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a replacement
Certificate in authorized denominations of a like amount; provided, however,
that if any such destroyed, lost or stolen Certificate, but not a mutilated
Certificate, shall have become or within seven days shall be due and payable,
then instead of issuing a replacement Certificate the Owner Trustee on behalf of
the Trust 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 protected purchaser of the original Certificate in lieu of
which such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee on behalf of the Trust 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 protected purchaser, and shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Trust or the Owner Trustee in connection
therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee on behalf of the Trust 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 Trust, 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
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 Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list, in such form as the Servicer
or the Seller may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Servicer, the Seller, the Trust 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 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 Trust in respect of the Certificates and the Basic Documents may be served.
The Owner Trustee initially designates the offices of JPMorgan Chase Bank, 0 Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 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 appoint and 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 Owner Trustee
hereby appoints JPMorgan Chase Bank as the initial Paying Agent and appoints as
co-paying agent any co-paying agent chosen by the Paying Agent and acceptable to
the Owner Trustee. The Paying Agent shall be permitted to resign as Paying
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Agent upon 30 days' written notice to the Owner Trustee. If the Paying Agent
shall resign or be removed, 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 Trust and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Trust. The provisions of Sections 6.3, 6.6, 6.7, 6.8 and 6.9 shall apply,
mutatis mutandis, to the Owner Trustee also in its role as Paying Agent, for so
long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.10 Seller as Certificateholder. The Seller in its individual
or any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 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 or an action by the Indenture Trustee
pursuant to the Indenture) and the compromise of any action, claim or lawsuit
brought by or against the Trust (other than an action to collect on a Receivable
or an action by the Indenture Trustee pursuant to the Indenture);
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Certificateholders;
(d) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Certificateholders;
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(e) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable;
(f) the amendment of the Pooling Agreement or the Servicing
Agreement in circumstances where the consent of any Noteholder is required; or
(g) 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,
except as permitted or required by the terms of any Basic Document.
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 Servicing Agreement pursuant to Section 7.02 thereof or
(d) except as expressly provided in the Basic Documents, sell the Receivables or
any interest therein after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
Neither the Trust nor the Owner Trustee shall 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 a majority of the
ownership interest in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the ownership interest in
the Trust at the time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
(a) The Seller shall cause the Servicer, for the benefit of the
Certificateholders, to establish and maintain at JPMorgan Chase Bank in the name
of the Trust an Eligible Deposit Account known as the Navistar Financial 2003-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 Trust, for the benefit of the Certificateholders, 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 Agreement or the 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 Seller shall cause the Servicer within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) to establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall cause the Owner Trustee to transfer any cash
and/or any investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall (based
on the information contained in the Servicer's Certificate delivered on the
related Determination Date) distribute to the Certificateholders, on a pro rata
basis, amounts on deposit in the Certificate Distribution Account.
(b) On each Distribution Date, the Owner Trustee shall send (or
shall cause to be sent) to each Certificateholder the statement described in
Section 2.17(a) of the Servicing Agreement.
(c) If any withholding tax is imposed on distributions of the
Owner Trust Estate (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.2. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any withholding tax that
is legally owed by the Trust in respect of any distribution (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
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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
Trust and 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 pro
rata to or at the order of the Certificateholders.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor or, where possible,
by intra-bank book entry credit, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Record Date and the distribution required to be made
to such Certificateholders exceeds $100,000 or (ii) by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
SECTION 5.4 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others. The Trust shall maintain (or cause to be
maintained) the books of the Trust on the basis of a fiscal year ending October
31 on the accrual method of accounting, 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, file such tax returns relating to the Trust and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a division or branch of the Seller
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with subsection 5.2(c) with respect to income
or distributions to Certificateholders.
SECTION 5.5 Signature on Returns. The Owner Trustee shall sign on
behalf of the Trust any and all tax returns of the Trust, unless applicable law
requires a Certificateholder to sign such documents, in which case such
documents shall be signed by the Seller.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 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
Agreement, the 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
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provisions of this Agreement, the Pooling Agreement and the Servicing Agreement.
No implied covenants or obligations shall be read into this Agreement, the
Pooling Agreement, the Servicing Agreement or any other Basic Document against
the Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee shall
not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in determining the
truth of the statements and the correctness of the opinions contained therein;
provided, however, that the Owner Trustee shall have examined such certificates
or opinions so as to determine compliance of the same with the requirements of
this Agreement.
(d) The Owner Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect
of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to
Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law, the Pooling Agreement or the 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 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.
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SECTION 6.2 Authority 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.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created, the Person
executing this Agreement as Owner Trustee acts solely as Owner Trustee hereunder
and not in its individual capacity and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by this Agreement or
any Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof. The Owner Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to such trusts but only upon
the terms of this Agreement. The Owner Trustee also agrees to disburse all
monies actually received by it constituting part of the Owner Trust Estate upon
the terms of this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in Section 6.6 and expressly made by the 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 Owner 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
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Trustee shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or any amounts payable with
respect to the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of, and makes no representation as to, the validity or sufficiency of
any provision of this Agreement or for the due execution hereof by the Seller or
for the form, character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Basic Documents, the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivables or any related
documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall not have any obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture, the Servicer under the Servicing Agreement or NFC
under the Purchase Agreement; and
(g) the Owner Trustee shall not be under any obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4 and Section 6.1(g), the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
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(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instructions
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement or the
Basic Documents, and as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for any such action or inaction.
SECTION 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 Trust or 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 national bank duly organized, validly existing and
in good standing under the laws of the United States of America. The eligibility
requirements set forth in Section 6.13 (a) - (c) are satisfied with respect to
it.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation governing
the banking and trust powers of the Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or governmental authority applicable to the
Owner Trustee or any of its assets, (ii) shall not violate any provision of the
charter or by-laws of the Owner Trustee, or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Owner Trust Estate pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or ability to
perform its duties as Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
regulating the corporate trust activities of the Owner Trustee.
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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: 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 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 from the Seller for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Seller and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents, custodians,
nominees, representatives, experts and counsel as it may employ in connection
with the exercise and performance of its rights and its duties hereunder. The
Servicer shall indemnify the Owner Trustee and its successors, assigns, agents
and servants in accordance with the provisions of
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Section 6.05 of the Servicing Agreement. The compensation and indemnities
described in this Section 6.9 shall survive the resignation or termination of
the Owner Trustee or the termination of this Agreement. Any amounts paid to the
Owner Trustee pursuant to this Article VI shall not be deemed to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 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. The successor Owner Trustee
shall file an appropriate amendment to the Certificate of Trust.
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 Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this Section 6.12, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request to do so, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.13 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which
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any particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
(including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement (unless such other trustee acts or fails to
act at the direction of such first trustee); and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be a corporation, a national banking association or a
bank satisfying the provisions of Section 3807(a) of the Statutory Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have a
combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or state authorities; and (d) have a
long-term unsecured debt rating of at least Baa3 by Xxxxx'x or be otherwise
satisfactory to Xxxxx'x. If such Person or bank shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 6.13, the combined capital and surplus of such Person or bank shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.13,
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the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) The Trust shall dissolve and wind up in accordance with Section
3808 of the Statutory Trust Statute on or immediately preceding the final
distribution by the 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 Agreement (including the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 4.01 of the Pooling Agreement), the
Servicing Agreement and Article V. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the Owner Trust Estate nor (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) This Agreement shall be irrevocable. Except as provided in
Section 7.1(a) and in this Section 7.1(b), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement. Each of the Seller, the Trust and the Owner Trustee acknowledges that
the Indenture Trustee, on behalf of the Noteholders, is a third-party
beneficiary of this Agreement. For so long as the Notes are outstanding, neither
the Trust nor this Agreement shall be revoked without the consent of the
Indenture Trustee. Each of the Seller, the Trust and the Owner Trustee
acknowledges that the Indenture Trustee, as an agent of the Noteholders,
maintains a legitimate interest in ensuring that the Trust is not revoked prior
to the fulfillment of the Trust objectives. In no event may this Agreement be
amended without the consent of the Indenture Trustee if the effect of such
amendment is the revocation or termination of this Trust other than in
accordance with this Section 7.1.
(c) Notice of any dissolution of the Trust specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
dissolution from the Servicer given pursuant to subsection 8.13(b) of the
Indenture, stating: (i) the Distribution Date upon or with respect to which the
final distribution on the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Owner Trustee; (ii) the
amount of any such final distribution; and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office of the
Owner Trustee therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Owner Trustee at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Owner Trustee shall cause to be distributed
to Certificateholders amounts distributable on such Distribution Date pursuant
to Section 5.2.
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(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice specified in Section 7.1(c), the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Owner Trust Estate after exhaustion
of such remedies in the preceding sentence shall be deemed property of the
Seller and distributed by the Owner Trustee to the Seller.
(e) Within sixty days of the later of (i) the cancellation of all of
the Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii) payment
to the Seller of funds remaining in the Owner Trust Estate pursuant to Section
7.1(d), the Owner Trustee shall provide each of the Rating Agencies with written
notice stating that all Certificates have been so canceled or such funds have
been so paid to the Seller.
(f) Upon completion of the winding up of the trust, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Statute and, upon such filing,
the Trust shall terminate.
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 Securityholders (but with prior notice to each
of the Rating Agencies) to (i) cure any ambiguity, (ii) correct or supplement
any provision in this Agreement that may be defective or inconsistent with any
other provision in this Agreement or any other Basic Document, (iii) add or
supplement any credit enhancement for the benefit of the Securityholders
(provided that if any such addition shall affect any class of Securityholders
differently than any other class of Securityholders, then such addition shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any class of the Securityholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee for
the benefit of the Securityholders, (v) evidence and provide for the acceptance
of the appointment of a successor trustee with respect to the Owner Trust Estate
and add to or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VI, or (vi) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the Securityholders.
SECTION 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
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Amount of the Controlling Class as of the close of business on the preceding
Distribution Date and the consent of the Holders of Certificates evidencing not
less than a majority of the ownership interests in the Owner Trust Estate as of
the close of business on the preceding Distribution Date (which consent, whether
given pursuant to this Section 8.2 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on all future
holders of such Notes or Certificates and of any Notes or Certificates issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether or
not notation of such consent is made upon the Notes or Certificates) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Note or the Specified
Reserve Account Balance, (b) reduce the aforesaid percentage required to consent
to any such amendment or (c) amend Section 4.3, without the consent of the
Holders of all of the Notes and the Holders of all of the Certificates then
outstanding. The Administrator shall furnish notice of the substance of any
proposed amendment, supplement or consent under this Section 8.2 to each of the
Rating Agencies prior to obtaining consent thereto.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders and Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(c) Prior to the execution of any amendment to this Agreement 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.
(d) 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.
(e) Notwithstanding any other provision of this Agreement, if the
consent of the Swap Counterparty is required pursuant to the Swap Counterparty
Rights Agreement to amend this Agreement, any such purported amendment shall be
null and void ab initio unless the Swap Counterparty consents in writing to such
amendment.
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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 beneficial interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the 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. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein. The Administrator shall be a third party
beneficiary with respect to the rights granted to it under Section 6.10(a).
SECTION 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 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, 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,
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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 by accepting a
Certificate (or interest therein) acknowledges that such Person's Certificate
(or interest therein) represents beneficial interests in the Trust only and does
not represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents. Except as expressly provided
in the Basic Documents, neither the Seller, the Servicer nor the Owner Trustee
in their respective individual capacities, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the distribution of any amount with respect to the Certificates, or the Owner
Trustee's performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Certificates or this Agreement,
it being expressly understood that said covenants and obligations have been made
by the Owner Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or beneficial interest
therein) shall agree that, except as expressly provided in the Basic Documents,
in the case of nonpayment of any amounts with respect to the Certificates, it
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom.
SECTION 9.9 Headings. The headings of the various Articles and Sections
herein are for purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
SECTION 9.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
SECTION 9.11 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 as the Trust's agent and attorney-in-fact to execute all such
documents, reports, filings, instruments, certificates and opinions.
SECTION 9.12 Amended and Restated Trust Agreement. This Trust Agreement is
the amended and restated trust agreement contemplated by the Trust Agreement
dated as of October 3, 2003 between the Seller and the Owner Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION as Owner Trustee
By:__________________________________
Name: Xxxx Xxxxxx
Title: Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By:__________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By:__________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
EXHIBIT A
FORM OF CERTIFICATE
NUMBER R-__
OWNERSHIP INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA"))
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON OCTOBER 31, 2003 HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
Navistar Financial 2003-B Owner Trust
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail loans evidenced
by notes secured by new and used medium and heavy duty trucks, truck
chassis, buses and trailers and a beneficial interest in a pool of
retail leases and the underlying medium and heavy duty trucks, truck
chassis, buses and trailers.
(This Certificate does not represent an interest in or obligation of
Navistar Financial Retail Receivables Corporation, Navistar Financial
Corporation, Navistar Leasing Company, Harco Leasing Company, Inc.,
International Truck and Engine Corporation, Navistar International
Corporation, the Owner Trustee or any of their respective affiliates,
except to the extent described below.)
THIS CERTIFIES THAT _________________________ is the
registered owner of a nonassessable, fully-paid, fractional undivided interest
in Navistar Financial 2003-B Owner Trust (the "Trust").
A-1
The Trust was created pursuant to a trust agreement, dated as of
October 3, 2003 (as amended and restated as of October 31, 2003 and as further
amended, restated or supplemented from time to time, the "Trust Agreement"),
between the Seller and Chase Manhattan Bank USA, National Association, as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Pooling
Agreement, the Servicing Agreement and the Indenture.
Each Certificateholder with respect to a Certificate, by its
acceptance of a Certificate, covenants and agrees that such Certificateholder
with respect to a Certificate, shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
Distributions on this Certificate shall be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer, check mailed or, where
possible, intra-bank book entry to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement, the Pooling Agreement or the Servicing Agreement or be valid for any
purpose.
A-2
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.
A-3
IN WITNESS WHEREOF, the Owner Trustee, not in its individual capacity,
but solely as Owner Trustee, has caused this Certificate to be duly executed.
Dated: October 31, 2003 NAVISTAR FINANCIAL 2003-B OWNER TRUST
By: Chase Manhattan Bank USA, National
Association, not in its individual
capacity but solely as Owner Trustee
By: _____________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK USA, NATIONAL CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION OR ASSOCIATION
_____________________________________ __________________________________
not in its individual capacity but not in its individual capacity but
solely as Owner Trustee solely as Owner Trustee
By: PMorgan Chase Bank, as
Authenticating Agent
By: _________________________________ By: ______________________________
Authorized Officer Authorized Officer
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, Harco Leasing Company, Inc., Navistar Leasing Company,
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, the Pooling Agreement and the Servicing Agreement. A copy of each of
the Pooling Agreement, the 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
Controlling Class, and (ii) Certificateholders whose Certificates evidence not
less than a majority of the ownership interest in the Trust, each as of the
close of the preceding Distribution Date. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing and (ii) certain opinions required by
Section 3.4(b) of the Trust Agreement, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is JPMorgan Chase
Bank, New York, New York.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Trust Agreement, the Pooling Agreement and the Servicing Agreement and the
disposition of all property held as part of the Trust.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: _____________________________________ *
Signature Guaranteed:
*
_____________________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
Navistar Financial 2003-B Owner Trust
This Certificate of Trust of Navistar Financial 2003-B Owner Trust
(the "Trust"), is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware Statutory
Trust Act [(12 Del. C. (S).3801 et seq.) (the "Act")].
1. Name. The name of the business trust formed by this Certificate of
Trust is Navistar Financial 2003-B Owner Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is _________________, _______________,
__________, Delaware _________, Attention: ______________.
3. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
By: _______________________________
not in its individual capacity but
solely as Owner Trustee
By: _______________________________
Name:
Title:
B-1
