EXHIBIT 4.2
TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHEMICAL BANK DELAWARE
OWNER TRUSTEE
DATED AS OF AUGUST 3, 1994
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 1
1.1 Definitions 1
ARTICLE II
ORGANIZATION 1
2.1 Name 1
2.2 Office 1
2.3 Purposes and Powers 1
2.4 Appointment of Owner Trustee 2
2.5 Initial Capital Contribution of Owner Trust Estate 2
2.6 Declaration of Trust 2
2.7 Liability of the Seller and the Certificate Owners 3
2.8 Title to Trust Property 4
2.9 Situs of Trust 4
2.10 Representations and Warranties of the Seller 4
2.11 Tax Treatment 5
ARTICLE III
THE CERTIFICATES 6
3.1 Initial Certificate Ownership 6
3.2 Form of the Certificates 6
3.3 Execution, Authentication and Delivery 6
3.4 Registration; Registration of Transfer and
Exchange of Certificates 7
3.5 Mutilated, Destroyed, Lost or Stolen Certificates 8
3.6 Persons Deemed Certificateholders 9
3.7 Access to List of Certificateholders' Names and
Addresses 9
3.8 Maintenance of Corporate Trust Office 9
3.9 Appointment of Paying Agent 10
3.10 Disposition by Seller 10
3.11 Book-Entry Certificates 11
3.12 Notices to Clearing Agency 12
3.13 Definitive Certificates 12
3.14 Seller as Certificateholder 12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE 13
4.1 Prior Notice to Certificateholders with Respect to
Certain Matters 13
4.2 Action by Certificateholders with Respect to
Certain Matters 13
4.3 Action by Certificateholders with Respect to
Bankruptcy 14
4.4 Restrictions on Certificateholders' Power 14
4.5 Majority Control 14
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 14
5.1 Establishment of Certificate Distribution Account 14
5.2 Application of Trust Funds 15
5.3 Method of Payment 16
5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others 16
5.5 Signature on Returns; Tax Matters Partner 17
ARTICLE VI
THE OWNER TRUSTEE 17
6.1 Duties of Owner Trustee 17
6.2 Rights of Owner Trustee 18
6.3 Acceptance of Trusts and Duties 18
6.4 Action upon Instruction by Certificateholders 20
6.5 Furnishing of Documents 21
6.6 Representations and Warranties of Owner Trustee 21
6.7 Reliance; Advice of Counsel 22
6.8 Owner Trustee May Own Certificates and Notes 23
6.9 Compensation and Indemnity 23
6.10 Replacement of Owner Trustee 23
6.11 Merger or Consolidation of Owner Trustee 25
6.12 Appointment of Co-Trustee or Separate Trustee 25
6.13 Eligibility Requirements for Owner Trustee 26
ARTICLE VII
TERMINATION OF TRUST AGREEMENT 27
7.1 Termination of Trust Agreement 27
7.2 Dissolution upon Bankruptcy of the Seller 28
ARTICLE VIII
AMENDMENTS 29
8.1 Amendments Without Consent of Certificateholders
or Noteholders 29
8.2 Amendments With Consent of Certificateholders and
Noteholders. 30
8.3 Form of Amendments 30
ARTICLE IX
MISCELLANEOUS 31
9.1 No Legal Title to Owner Trust Estate. 31
9.2 Limitations on Rights of Others 31
9.3 Notices 32
9.4 Severability 32
9.5 Counterparts 32
9.6 Successors and Assigns 32
9.7 No Petition Covenant 32
9.8 No Recourse 32
9.9 Headings 33
9.10 Governing Law 33
9.11 Certificate Transfer Restrictions 33
9.12 [Reserved] 33
9.13 Administrator 33
9.14 Amended and Restated Trust Agreement 34
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Certificate Depository Agreement
Exhibit D Form of Undertaking Letter
TRUST AGREEMENT, dated as of August 3, 1994 between
Navistar Financial Retail Receivables Corporation, a Delaware
corporation, as Seller, and Chemical Bank Delaware, a Delaware
banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms
used in this Agreement shall have the respective meanings
assigned to them in Part I of Appendix A to the Pooling and
Servicing Agreement of even date herewith, among the Seller, the
Servicer and the Trust (as it may be amended and supplemented
from time to time, the "Pooling and Servicing Agreement"). All
references herein to "the Agreement" or "this Agreement" are to
this Trust Agreement as it may be amended and supplemented from
time to time, the Exhibits hereto and the capitalized terms used
herein which are defined in such Appendix A, and all 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 created hereby shall be
known as "Navistar Financial 1994-B Owner Trust" in which name
the Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust
and xxx and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or
at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of
the Trust is to engage in the following activities:
(i) to acquire, manage and hold the Receivables;
(ii) to issue the Notes pursuant to the Indenture and
the Certificates pursuant to this Agreement, and to sell,
transfer or exchange the Notes and the Certificates;
(iii) to acquire property and assets from the
Seller pursuant to the Pooling and Servicing Agreement, to
make payments or distributions on the Securities to the
Securityholders, to make deposits into and withdrawals from the
Reserve Account and other accounts established pursuant to the
Basic Documents and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the terms of the
Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of this Agreement
and the Pooling and Servicing Agreement any portion of the
Trust Estate released from the lien of, and remitted to the
Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations and
exercise its rights under the Basic Documents to which it is
to be a party;
(vi) to engage in those activities, including entering
into agreements, that are necessary, suitable, desirable or
convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vii) subject to compliance with the Basic
Documents, to engage in such other activities as may be
required in connection with conservation of the Owner Trust
Estate and the making of payments or distributions to the
Securityholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The
Seller hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner
Trust Estate. The Seller hereby sells, assigns, transfers,
conveys and sets over to the Owner Trustee, as of the date
hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate
Distribution Account. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee
hereby declares that it shall hold the Owner Trust Estate in
trust upon and subject to the conditions and obligations set
forth herein and in the Pooling and Servicing Agreement for the
use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the
intention of the parties
hereto that the Trust constitute a business trust under the
Business Trust Statute, that this Agreement constitute the
governing instrument of such business trust and that the
Certificates represent the equity interests therein. The rights
of the Certificateholders shall be determined as set forth herein
and in the Business Trust Statute and the relationship between
the parties hereto created by this Agreement shall not constitute
indebtedness for any purpose. It is the intention of the parties
hereto that, solely for purposes of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed
upon, measured by, or based upon gross or net income, the Trust
shall be treated as a partnership. The parties agree that,
unless otherwise required by appropriate tax authorities, the
Trust shall file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the
characterization of the Trust as partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth in this
Agreement, the Pooling and Servicing Agreement and the Business
Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.7 Liability of the Seller and the
Certificate Owners.
(a) The Seller shall be liable directly to and shall
indemnify the injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including Expenses, to the
extent not paid out of the Owner Trust Estate) to the extent that
the Seller would be liable if the Trust were a partnership under
the Delaware Revised Uniform Limited Partnership Act in which the
Seller were a general partner; provided, however, that the Seller
shall not be liable for (i) any losses incurred by a
Certificateholder or a Certificate Owner in its capacity as an
investor in the Certificates or by a Noteholder or Note Owner in
its capacity as an investor in the Notes or (ii) any losses,
claims, damages, liabilities and expenses arising out of the
imposition by any taxing authority of any federal income taxes,
state or local income or franchise taxes, or any other taxes
imposed on or measured by gross or net income, gross or net
receipts, capital, net worth and similar items (including any
interest, penalties or additions with respect thereto) upon the
Certificateholders, the Certificate Owners, the Noteholders, the
Note Owners, the Owner Trustee or the Indenture Trustee
(including any liabilities, costs or expenses with respect
thereto) with respect to any Receivables not specifically
indemnified or represented to hereunder. In addition, any third
party creditors of the Trust (other than in connection with the
obligations described in the preceding sentence for which the
Seller shall not be liable) shall be deemed third party
beneficiaries of this subsection 2.7(a). The obligations of the
Seller under this subsection 2.7(a) shall be evidenced by the
Certificates issued pursuant to Section 3.10, which for purposes
of the Business Trust Statute shall be deemed to be a separate
class of Certificates from all other Certificates issued by the
Trust;
provided, however, that the rights and obligations evidenced by
all Certificates, regardless of class, shall, except as provided
in this subsection 2.7(a) and as provided with respect to Voting
Interests, be identical.
(b) No Certificateholder or Certificate Owner, other
than to the extent set forth in subsection 2.7(a) with respect to
the Seller, shall have any personal liability for any liability
or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to
all the Owner Trust Estate shall be vested at all times in the
Trust as a separate legal entity except where applicable law in
any jurisdiction requires title to any part of the Owner Trust
Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be
located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware or the State of New
York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments shall be
received by the Trust only in Delaware or New York, and payments
and distributions shall be made by the Trust only from Delaware
or New York. The only office of the Trust shall be the Corporate
Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the Owner
Trustee that:
(a) The Seller has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties
are presently owned and such business is presently conducted
and had at all relevant times, and now has, power, authority
and legal right to acquire and own the Receivables.
(b) The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of
its business requires such qualifications.
(c) The Seller has the power and authority to execute
and deliver this Agreement and to carry out its terms, the
Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the
Issuer as part of the Trust and the Seller has duly authorized
such sale and assignment to the Issuer by all necessary corporate
action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms of this
Agreement do not conflict with, result in any breach of any
of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or
any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the
Basic Documents), or violate any law or, to the Seller's
knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any
of its properties.
(e) This Agreement, when duly executed and delivered,
shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(f) There are no proceedings or, to the Seller's
knowledge, investigations pending or, to the Seller's
knowledge, threatened before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or
any Certificates issued pursuant hereto or, (ii) seeking to
prevent the issuance of such Certificates or the
consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or
enforceability of, such Certificates or this Agreement.
SECTION 2.11 Tax Treatment. The Seller and the Owner
Trustee, by entering into this Agreement, and the
Certificateholders and Certificate Owners, by acquiring any
Certificate or interest therein, (i) express their intention that
the Certificates will qualify under applicable tax law as
partnership interests in a partnership which holds the Owner
Trust Estate for their benefit, and (ii) unless otherwise
required by appropriate taxing
authorities, agree to treat the Certificates as partnership
interests in such a partnership for the purposes of federal
income taxes, state and local income and franchise taxes, and any
other taxes imposed upon, measured by or based upon gross or net
income.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the
formation of 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 and shall be issued (i) in minimum
denominations of $20,000 and (ii) in integral multiples of $1,000
in excess thereof, except for one Certificate which may be issued
to the Seller. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of a Responsible
Officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authenticated pursuant to
Section 3.3, validly issued and entitled to the benefits of the
Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at
the date of authentication and delivery of such Certificates.
(b) The Definitive Certificates shall be typewritten,
printed, lithographed or engraved or produced by any combination
of these methods (with or without steel engraved borders) all as
determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in
fully-registered form. The terms of the Certificates
set forth in
Exhibit A shall form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery.
Concurrently with the sale of the Receivables to the Trust
pursuant to the Pooling and Servicing Agreement, the Owner
Trustee shall cause the Certificates in an aggregate principal
amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board,
its president or any vice president, without further corporate
action by the Seller, in authorized denominations. No
Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a
certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or Chemical Bank, as
the Owner Trustee's authenticating agent, by manual signature.
Such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 3.4 Registration; Registration of Transfer
and Exchange of 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; provided, however,
that no Certificate may be subdivided upon registration of
transfer or exchange such that the denomination of any resulting
Certificate would have been less than $20,000 if such Certificate
had been issued in the initial distribution of Certificates.
Chemical Bank shall be the initial Certificate Registrar. Upon
any resignation of a Certificate Registrar, the Owner Trustee
shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of Certificate Registrar.
(b) Upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute on behalf of the
Trust, authenticate and deliver (or shall cause Chemical Bank as
its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate
amount dated the date of authentication by the Owner Trustee or
any authenticating agent. Notwithstanding the foregoing, if the
Seller shall have advised the Owner Trustee in writing that an
Undertaking Letter shall be required with respect to any
transfer, such registration of transfer shall not be effective
unless the requirements of Section 9.11, with respect to the
delivery of an Undertaking Letter, shall have been complied with.
(c) At the option of a Holder, Certificates may be
exchanged for other Certificates of authorized denominations of a
like aggregate principal amount upon surrender of the
Certificates to be exchanged at the Corporate Trust Office
maintained pursuant to Section 3.8. Whenever any Certificates
are so surrendered for exchange, the Owner Trustee shall execute
on behalf of the Trust, authenticate and deliver (or shall cause
Chemical Bank as its authenticating agent to authenticate and
deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent.
Such Certificates shall be delivered to the Holder making the
exchange.
(d) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Owner
Trustee and the Certificate Registrar duly executed by the Holder
or his attorney duly authorized in writing and such other
documents and instruments as may be required by Section 9.11.
Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed or
otherwise disposed of by the Owner Trustee or Certificate
Registrar in accordance with its customary practice.
(e) No service charge shall be made for any
registration of transfer or exchange of Certificates, but the
Owner Trustee or the Certificate Registrar may require payment of
a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of
Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates.
(a) If (i) any mutilated Certificate is surrendered to
the Certificate Registrar, or the Certificate Registrar receives
evidence to its satisfaction of the destruction, loss or theft of
any Certificate, and (ii) there is delivered to the Certificate
Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Certificate
Registrar or the Owner Trustee that such Certificate has been
acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause Chemical Bank as its
authenticating agent to authenticate and deliver), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate in authorized
denominations of a like amount; provided, however, that if any
such destroyed, lost or stolen Certificate, but not a mutilated
Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement Certificate
the Owner Trustee may pay such destroyed, lost or stolen
Certificate when so due or payable.
(b) If, after the delivery of a replacement
Certificate or distribution in respect of a destroyed, lost or
stolen Certificate pursuant to subsection 3.5(a), a bona fide
purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such
original Certificate, the Owner Trustee shall be entitled to
recover such replacement Certificate (or such distribution) from
the Person to whom it was delivered or any Person taking such
replacement Certificate from such Person to whom such replacement
Certificate was delivered or any assignee of such Person, except
a bona fide purchaser, and shall be entitled to recover upon the
security or
indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Owner Trustee in connection
therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require
the payment by the Holder of such Certificate of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this
Section 3.5 in replacement of any mutilated, destroyed, lost or
stolen Certificate shall constitute an original additional
contractual obligation 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 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
Owner Trustee
in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates the offices of
Chemical Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as its
principal office for such purposes. The Owner Trustee shall give
prompt written notice to the Seller and to the Certificateholders
of any change in the location of the Certificate Register or any
such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying
Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and
shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the
Owner Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall
initially be Chemical Bank, and any co-paying agent chosen by
Chemical Bank, and acceptable to the Owner Trustee. Chemical
Bank shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Owner Trustee. If Chemical Bank shall no
longer be the Paying Agent, the Owner Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 6.3,
6.6, 6.7, 6.8 and 6.9 shall apply to the Owner Trustee also in
its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 3.10 Disposition by Seller. On and after the
Closing Date, the Seller shall retain beneficial and record
ownership of Certificates representing at least 1% of the
Certificate Balance. Any attempted transfer of any Certificate
that would reduce such interest of the Seller below 1% of the
Certificate Balance shall be void. The Owner Trustee shall cause
any Certificate issued to the Seller to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Certificates issued to
the Seller shall be in definitive form only.
SECTION 3.11 Book-Entry Certificates. Except for the
Certificates issued to the Seller, the Certificates, upon
original issuance, shall be issued in the form of a typewritten
Certificate or Certificates representing Book-Entry Certificates,
to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Trust. Such Certificate
or Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Certificate Owner shall receive a
definitive Certificate representing such Certificate Owner's
interest in such Certificate, except as provided in Section 3.13.
Unless and until definitive fully registered Certificates (the
"Definitive Certificates") shall have been issued to Certificate
Owners pursuant to Section 3.13:
(a) the provisions of this Section 3.11 shall be in
full force and effect;
(b) the Certificate Registrar and the Owner Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Agreement (including the distribution of
Certificate Balance and interest on the Certificates and the
giving of instructions or directions hereunder) as the sole
Holder of the Certificate, and shall have no obligation to
the Certificate Owners;
(c) to the extent that the provisions of this Section
3.11 conflict with any other provisions of this Agreement,
the provisions of this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate
Depository Agreement in the form attached as Exhibit C,
unless and until Definitive Certificates are issued pursuant
to Section 3.13, the initial Clearing Agency shall make
book-entry transfers among the Clearing Agency Participants
and receive and transmit distributions of Certificate
Balance and interest on the Certificates to such Clearing
Agency Participants;
(e) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Holders of Certificates evidencing a specified percentage of
the Voting Interests, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received written instructions to such effect from
Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required
percentage of Voting
Interests and has delivered such instructions to the Owner
Trustee;
provided, however, that the provisions of this Section 3.11 shall
not be applicable in respect of Certificates issued to the
Seller. The Seller or the Owner Trustee may set a record date
for the purpose of determining the identity of Holders of
Certificates entitled to vote or to consent to any action by vote
as provided in this Agreement.
SECTION 3.12 Notices to Clearing Agency. Whenever a
notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive
Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such
notices and communications specified herein to be given to
Certificateholders to the Clearing Agency and shall have no
further obligation to the Certificate Owners.
SECTION 3.13 Definitive Certificates. If (i) the
Administrator advises the Owner Trustee in writing that the
Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Certificates,
and the Administrator is unable to locate a qualified successor,
(ii) the Administrator at its option advises the Owner Trustee in
writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing
beneficial interests aggregating at least a majority of the
Voting Interests advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Certificate Owners, then
the Clearing Agency shall notify all Certificate Owners and the
Owner Trustee of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Owner Trustee of the
typewritten Certificate or Certificates representing the
Book-Entry Certificates by the Clearing
Agency, accompanied by
registration instructions, the Owner Trustee shall execute and
authenticate the Definitive Certificates in accordance with the
instructions of the Clearing Agency. Neither the Certificate
Registrar nor the Owner Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, the Owner Trustee shall
recognize the Holders of the Definitive Certificates as
Certificateholders.
SECTION 3.14 Seller as Certificateholder. The Seller
in its individual or any other capacity may, subject to Section
3.10, become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it
were not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters. The Owner Trustee shall not take
action with respect to the following matters, unless (i) the
Owner Trustee shall have notified the Certificateholders in
writing of the proposed action at least 30 days before the taking
of such action, and (ii) the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after
such notice is given that such Certificateholders have withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the
Trust (other than an action to collect on a Receivable) and
the compromise of any action, claim or lawsuit brought by or
against the Trust (other than an action to collect on a
Receivable);
(b) the election by the Trust to file an amendment to
the Certificate of Trust, a conformed copy of which is
attached hereto as Exhibit B;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any
Noteholder is not required and such amendment materially
adversely affects the interests of the Certificateholders;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee
or pursuant to this Agreement of a successor Certificate
Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with
Respect to Certain Matters. The Owner Trustee shall not have the
power, except upon the written direction of the
Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, (b)
appoint a successor Administrator pursuant to Section 10 of the
Administration
Agreement, (c) remove the Servicer under the Pooling and
Servicing Agreement pursuant to Section 8.02 thereof or (d)
except as expressly provided in the Basic Documents, sell the
Receivables or any interest therein after the termination of the
Indenture. The Owner Trustee shall take the actions referred to
in the preceding sentence only upon written instructions signed
by the Certificateholders.
SECTION 4.3 Action by Certificateholders with
Respect to Bankruptcy. The Owner Trustee shall not have the
power to commence a voluntary proceeding in bankruptcy relating
to the Trust without the unanimous prior approval of all Holders
of Certificates (including the unanimous approval of the board of
directors of the Seller) unless the Owner Trustee reasonably
believes that the Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders'
Power. The Certificateholders shall not direct the Owner Trustee
to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents
or would be contrary to Section 2.3, nor shall the Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly
provided herein, any action that may be taken or consent that may
be given or withheld by the Certificateholders under this
Agreement shall be effective if such action is taken or such
consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests
thereof. Except as expressly provided herein, any written
notice, instruction, direction or other document of the
Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Holders of Certificates evidencing not
less than a majority of the Voting Interests at the time of the
delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate
Distribution Account.
(a) The Servicer, for the benefit of the
Certificateholders, shall establish and maintain at Chemical Bank
in the name of the Owner Trustee an Eligible Deposit Account
known as the Navistar Financial 1994-B Owner Trust Certificate
Distribution Account (the "Certificate Distribution Account"),
bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the
Certificateholders.
(b) The Owner Trustee shall possess all right, title
and interest in and to all funds on deposit from time to time in
the
Certificate Distribution Account and in all proceeds thereof.
Except as otherwise provided herein or in the Pooling and
Servicing Agreement, the Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholders. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Servicer shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Certificate
Distribution Account as an Eligible Deposit Account and shall
cause the Owner Trustee to transfer any cash and/or any
investments in the old Certificate Distribution Account to such
new Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall
distribute to the Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account
pursuant to Section 4.06 of the Pooling and Servicing Agreement
with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall
send to each Certificateholder the statement described in Section
4.09(a) of the Pooling and Servicing Agreement.
(c) If any withholding tax is imposed on the Trust's
distributions (or allocations of income) to a Certificateholder,
such tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2. The Owner
Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to
a non-U.S. Certificateholder), the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this
subsection 5.2(c). If a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such
claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for
payment to the Trust pursuant to Section 3.3(e) of the Indenture,
the Owner Trustee shall, upon notice from the Indenture Trustee
that such funds exist, submit on behalf of the Trust an Issuer
Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to
or at the order of the Seller.
SECTION 5.3 Method of Payment. Subject to
subsection 7.1(c), distributions required to be made to
Certificateholders on any Distribution Date shall be made to each
Certificateholder of record on the related Record Date (i) by
wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate
facilities therefor, if (x) the Certificates are Definitive
Certificates, such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least
five Business Days prior to such Record Date and the distribution
required to be made to such Holder on such Distribution Date
exceeds $100,000 or (y) the Certificates are Book-Entry
Certificates, or, (ii) if neither clause (i)(x) nor (i)(y) is
applicable, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
SECTION 5.4 Accounting and Reports to the
Certificateholders, the Internal Revenue Service and Others. The
Owner Trustee shall (a) maintain (or cause to be maintained) the
books of the Trust on the basis of a fiscal year ending October
31 on the accrual method of accounting, (b) deliver to each
Certificateholder, as may be required by the Code and applicable
Treasury Regulations or otherwise, such information as may be
required to enable each Certificateholder to prepare its federal
income tax returns, (c) file such tax returns relating to the
Trust and make such elections as may from time to time be
required or appropriate under any applicable state or federal
statute or rule or regulation thereunder so as to maintain the
Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner
required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with subsection
5.2(c) with respect to income or distributions to
Certificateholders. In preparing and filing tax returns for the
Trust, the Owner Trustee shall allocate taxable income of the
Trust for each Monthly Period in the following manner: (A) to
the Certificateholders, in an amount equal to the sum of (1) the
product of the Pass Through Rate multiplied by the Certificate
Balance as of the last day of such month, (2) the amount
specified in clause (iii) of the definition of
Certificateholders' Interest Distributable Amount for such
Monthly Period, (3) any Trust income attributable to discount on
the Receivables that corresponds to any excess of the principal
amount of the Certificates over their initial issue price, and
(4) any Prepayment Surplus payable to holders of the Certificates
for such month; and (B) to the Seller, if and to the extent that
the taxable income of the Trust for each month exceeds the amount
computed under (A) above. Unless otherwise permitted or required
by any applicable law or regulation, the Owner Trustee shall
allocate amounts of taxable income of the Trust for a particular
calendar month among the Certificateholders in proportion to the
principal amount of Certificates owned by them as of the first
Record Date following the end of such month.
SECTION 5.5 Signature on Returns; Tax Matters
Partner. The Owner Trustee shall sign on behalf of the Trust any
and all tax returns of the Trust, unless applicable law requires
a Certificateholder to sign such documents, in which case such
documents shall be signed by the Seller. The Seller shall be the
"tax matters partner" of the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in
this Agreement, the Pooling and Servicing Agreement and the other
Basic Documents, including the administration of the Trust in the
interest of the Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Agreement
and the Pooling and Servicing Agreement. No implied covenants or
obligations shall be read into this Agreement, the Pooling and
Servicing Agreement or any other Basic Document against the Owner
Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the
extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be liable for the default or failure of
the Administrator to carry out its obligations under the
Administration Agreement.
(c) In the absence of bad faith on its part, the Owner
Trustee may conclusively rely upon certificates or opinions
furnished to the Owner Trustee and conforming to the requirements
of this Agreement in determining the truth of the statements and
the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such
certificates or opinions so as to determine compliance of the
same with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect
of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer unless it is proved that the Owner Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant
to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received
by the Owner Trustee hereunder need not be segregated in any
manner except to the extent required by law or the Pooling and
Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that
(i) is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (ii) would, to the actual knowledge of a
Responsible Officer of the Owner Trustee, result in the Trust's
becoming taxable as a corporation for federal income tax
purposes.
(g) The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this
Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner
Trustee is authorized and directed to execute and deliver the
Basic Documents and each certificate or other document attached
as an exhibit to or contemplated by the Basic Documents to which
the Trust is to be a party, in such form as the Seller shall
approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to the Basic Documents.
The Owner Trustee is further authorized from time to time to take
such action as the Administrator recommends with respect to the
Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except
as otherwise provided in this Article VI, in accepting the trusts
hereby created, Chemical Bank Delaware acts solely as Owner
Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Agreement. The Owner
Trustee shall not be liable or account
able hereunder or under any Basic Document under any
circumstances, except (i) for its own negligent action, its own
negligent failure to act or its own willful misconduct or (ii) in
the case of the inaccuracy of any representation or warranty
contained in Section 6.6 and expressly made by the Owner Trustee.
In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any
responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable or
the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance
of any such perfection and priority, or for or with respect
to the sufficiency of the Owner Trust Estate or its ability
to generate the distributions and payments to be made to
Certificateholders under this Agreement or to Noteholders
under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Vehicle;
the existence and enforceability of any insurance thereon;
the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of
any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance
by the Seller or the Servicer with any warranty or
representation made under any Basic Document or in any
related document or the accuracy of any such warranty or
representation or any action of the Administrator, the
Trustee or the Servicer or any subservicer taken in the name
of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
accordance with the instructions of the Administrator or any
Certificateholder;
(c) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of
the Basic Documents, including the principal of and interest
on the Notes or the Certificate Balance of and interest on
the Certificates;
(e) the Owner Trustee shall not be responsible for or
in respect of and makes no representation as to the validity
or
sufficiency of any provision of this Agreement or for the due
execution hereof by the Seller or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner
Trust Estate or for or in respect of the validity or sufficiency
of the Basic Documents, the Notes, the Certificates (other than
the certificate of authentication on the Certificates) or of any
Receivables or any related documents, and the Owner Trustee shall
in no event assume or incur any liability, duty or obligation to
any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Indenture
Trustee, the Seller or the Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the
Indenture, the Servicer under the Pooling and Servicing
Agreement or NFC under the Purchase Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as
a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the
performance of any such act.
SECTION 6.4 Action upon Instruction by
Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may
by written instruction direct the Owner Trustee in the management
of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Section
4.5.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
the terms of this Agreement or any Basic Document, or is unsure
as to the application, intent, interpretation or meaning of any
provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted,
and, to the extent the Owner Trustee acts in good faith in
accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate
instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but
shall be under no duty to, take or refrain from taking such
action which is consistent, in its view, with this Agreement or
the Basic Documents, and as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner
Trustee shall furnish to the Certificateholders, promptly upon
receipt of a written request therefor, duplicates or copies of
all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner
Trustee under the Basic Documents.
SECTION 6.6 Representations and Warranties of Owner
Trustee. The Owner Trustee hereby represents and warrants to the
Seller, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized,
validly existing and in good standing under the laws of the
state of its incorporation. The eligibility requirements
set forth in Section 6.13 (a) - (c) are satisfied with
respect to it.
(b) It has full power, authority and legal right to
execute, deliver and perform this Agreement, and has taken
all necessary action to authorize the execution, delivery
and performance by it of this Agreement.
(c) The execution, delivery and performance by it of
this Agreement (i) shall not violate any provision of any
law or regulation governing the banking and trust powers of
the Owner Trustee or any order, writ, judgment or decree of
any court, arbitrator or governmental authority applicable
to the Owner Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or by-laws of
the Owner Trustee, or (iii) shall not violate any provision
of, or constitute, with or without notice or lapse of time,
a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the
Owner Trustee's performance or ability to perform its duties as
Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement shall not require the
authorization, consent or approval of, the giving of notice
to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or
agency regulating the corporate trust activities of Chemical
Bank Delaware.
(e) This Agreement has been duly executed and
delivered by the Owner Trustee and constitutes the legal,
valid and binding agreement of the Owner Trustee,
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of
any corporate party as conclusive evidence that such resolution
has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations
under this Agreement or the Basic Documents, the Owner Trustee:
(i) may act directly or through its agents, attorneys, custodians
or nominees pursuant to agreements entered into with any of them,
and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents, attorneys, custodians or nominees if
such agents, attorneys, custodians or nominees shall have been
selected by the Owner Trustee with reasonable care; and (ii) may
consult with counsel, accountants and other skilled professionals
to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the opinion or
advice of any such counsel, accountants or other such Persons and
not contrary to this Agreement or any Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and
Notes. The Owner Trustee in its individual or any other capacity
may become the owner or pledgee of Certificates or Notes and may
deal with the Seller, the Administrator, the Indenture Trustee
and the Servicer in transactions in the same manner as it would
have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner
Trustee shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date
hereof between the Seller and the Owner Trustee, and the Owner
Trustee shall be entitled to be reimbursed by the Servicer for
its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents,
custodians, nominees, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer
shall indemnify the Owner Trustee and its successors, assigns,
agents and servants in accordance with the provisions of Section
7.01 of the Pooling and Servicing Agreement. The compensation
and indemnities described in this Section 6.9 shall survive the
resignation or termination of the Owner Trustee or the
termination of this Agreement. Any amounts paid to the Owner
Trustee pursuant to this Article VI shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may give notice of its intent to
resign and be discharged from the trusts hereby created by
written notice thereof to the Administrator; provided that no
such resignation shall become effective, and the Owner Trustee
shall not resign, prior to the time set forth in Section 6.10(c).
The Administrator may appoint a successor Owner Trustee by
delivering a written instrument, in duplicate, to the resigning
Owner Trustee and the successor Owner Trustee. If no successor
Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court
of competent jurisdiction for the appointment of a successor
Owner Trustee. The Administrator shall remove the Owner Trustee
if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall
fail to resign after written request therefor by the
Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the Owner Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of
Owner Trustee for any reason, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in
duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor
Owner Trustee) and shall pay all fees owed to the outgoing Owner
Trustee.
(c) Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section 6.10 shall not become effective
and no such resignation shall be deemed to have occurred until a
written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator
and all fees and expenses due to the outgoing Owner Trustee are
paid. Any successor Owner Trustee appointed pursuant to this
Section 6.10 shall be eligible to act in such capacity in
accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner
Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(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
Certificate
holders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
SECTION 6.11 Merger or Consolidation of Owner
Trustee. Any Person into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Owner Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such Person shall be eligible pursuant to
Section 6.13, and without the execution or filing of any
instrument or any further act on the part of any of the parties
hereto; provided, however, that the Owner Trustee shall mail
notice of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the Owner
Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or as separate
trustee or trustees, of all or any part of the Owner Trust
Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the other
provisions of this Section 6.12, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee
pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to
Section 6.10.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be
conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee
joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts
are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement (unless such other
trustee acts or fails to act at the direction of such first
trustee); and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts
conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
SECTION 6.13 Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the
Business Trust Statute; (b) be authorized to exercise corporate
trust powers; (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by
federal or state authorities; and (d) have a long-term unsecured
debt rating of at least Baa3 by Xxxxx'x Investors Service, Inc.
or be otherwise satisfactory to Xxxxx'x Investors Service, Inc.
If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising
or examining authority, then for the purpose of this Section
6.13, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time
the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in
Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the
Trust shall terminate and be of no further force or effect on the
earlier of: (i) the final distribution by the Owner Trustee of
all monies or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture, the Pooling
and Servicing Agreement (including the exercise by the Servicer
of its option to purchase the Receivables pursuant to Section
9.01(a) of the Pooling and Servicing Agreement) and Article V or
(ii) at the time provided in Section 7.2. The bankruptcy,
liquidation, dissolution, death or incapacity of any
Certificateholder, other than the Seller as described in Section
7.2, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up
of all or any part of the Trust or the Owner Trust Estate nor
(z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in Section 7.1(a), neither the
Seller nor any Certificateholder shall be entitled to revoke or
terminate the Trust or this Agreement.
(c) Notice of any termination of the Trust, except as
otherwise provided in Section 7.2, specifying the Distribution
Date upon which the Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner
Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the
Servicer given pursuant to subsection 9.02(b) of the Pooling and
Servicing Agreement, stating: (i) the Distribution Date upon or
with respect to which the final distribution on the Certificates
shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated; (ii) the
amount of any such final distribution; and (iii) that the Record
Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and
surrender of
the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not
surrender their Certificates for cancellation within six months
after the date specified in the written notice specified in
Section 7.1(c), the Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice
all the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds
and other assets that shall remain subject to this Agreement.
Subject to applicable laws with respect to escheat of funds, any
funds remaining in the Trust after exhaustion of such remedies in
the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller.
(e) Upon the winding up of the Trust and its
termination, the Owner Trustee shall cause the Certificate of
Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
(f) Within sixty days of the later of (i) the
cancellation of all of the Certificates pursuant to Section
7.1(c) or Section 7.1(d), or (ii) payment to the Seller of funds
remaining in the Trust pursuant to Section 7.1(d), the Owner
Trustee shall provide each of the Rating Agencies with written
notice stating that all Certificates have been so cancelled or
such funds have been so paid to the Seller.
SECTION 7.2 Dissolution upon Bankruptcy of the
Seller. Subject to the liquidation, winding-up and dissolution
procedures and time periods described below, upon the occurrence
of an Insolvency Event with respect to the Seller, the Trust
shall terminate, subject to the liquidation, winding-up and
dissolution procedures described below, and provided that the
rights and obligations of the parties to this Agreement shall not
terminate during such liquidation, winding-up and dissolution.
Promptly after the occurrence of any Insolvency Event with
respect to the Seller: (i) the Seller shall give the Indenture
Trustee and the Owner Trustee written notice of such Insolvency
Event, (ii) the Owner Trustee shall, upon the receipt of such
written notice from
the Seller, give prompt written notice to the Certificateholders
and the Indenture Trustee of the occurrence of such event and
(iii) pursuant to Section 3.23 of the Indenture, the Indenture
Trustee shall, upon receipt of written notice of such Insolvency
Event from the Owner Trustee or the Seller, give prompt written
notice to the Noteholders of the occurrence of such event;
provided, however, that any failure to give a notice required by
this sentence shall not prevent or delay in any manner a
termination of the Trust pursuant to the first sentence of this
Section 7.2. Ninety days after the date the Seller gives the
notice described in the preceding sentence, unless the Owner
Trustee shall have received written instructions from (a)
Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests as of the close of the preceding
Distribution Date and (b) Noteholders whose Notes evidence not
less than a majority of the Outstanding Amount of the Notes as of
the close of the preceding Distribution Date, to the effect that
such Persons disapprove of the prospective liquidation of the
assets held by the Trust and the prospective termination of the
Trust and wish to reconstitute the Trust pursuant to terms
corresponding to the terms of this Agreement, the Owner Trustee
shall direct the Indenture Trustee to promptly sell, dispose of
or otherwise liquidate or realize upon the assets of the Trust
(other than the Designated Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on
commercially reasonable terms (which may include continuing to
hold the Receivables and receiving collections thereon). The
proceeds of any such sale, disposition or liquidation of the
assets of the Trust shall be treated as collections on the
Receivables and deposited in the Collection Account pursuant to
Section 9.02(a) of the Pooling and Servicing Agreement, and
thereupon this Agreement and the respective obligations and
responsibilities of the Seller, the Servicer, the Owner Trustee
and the Indenture Trustee shall terminate (except as otherwise
expressly provided herein).
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of
Certificateholders or Noteholders. This Agreement may be amended
by the Seller and the Owner Trustee without the consent of any of
the Noteholders or the Certificateholders (but with prior notice
to each of the Rating Agencies) to (i) cure any ambiguity,
(ii) correct or supplement any provision in this Agreement that
may be defective or inconsistent with any other provision in this
Agreement or any other Basic Document, (iii) add or supplement
any credit enhancement for the benefit of the Noteholders or the
Certificateholders (provided that if any such addition shall
affect any class of Noteholders or Certificateholders differently
than any other class of Noteholders or Certificateholders, then
such addition shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
class
of the Noteholders or the Certificateholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner
Trustee for the benefit of the Noteholders or Certificateholders,
(v) evidence and provide for the acceptance of the appointment of
a successor trustee with respect to the Owner Trust Estate and
add to or change any provisions as shall be necessary to
facilitate the administration of the trusts hereunder by more
than one trustee pursuant to Article VI, or (vi) add, change or
eliminate any other provision of this Agreement in any manner
that shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of the Noteholders
or the Certificateholders.
SECTION 8.2 Amendments With Consent of
Certificateholders and Noteholders. This Agreement may be
amended from time to time by the Seller and the Owner Trustee
with the consent of Noteholders whose Notes evidence not less
than a majority of the Outstanding Amount of the Notes as of the
close of business on the preceding Distribution Date and the
consent of Certificateholders whose Certificates evidence not
less than a majority of the Voting Interests as of the close of
business on the preceding Distribution Date (which consent,
whether given pursuant to this Section 8.2 or pursuant to any
other provision of this Agreement, shall be conclusive and
binding on such Person and on all future holders of such Notes or
Certificates and of any Notes or Certificates issued upon the
transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Notes or
Certificates) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no
such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required
to be made on any Note or Certificate, the Pass Through Rate or
the Specified Reserve Account Balance, (b) reduce the aforesaid
percentage required to consent to any such amendment or (c) amend
Section 4.3 or Section 7.2, without the consent of the Holders of
all of the Notes and all of the Voting Interests with respect to
Certificates then outstanding. The Administrator shall furnish
notice of the substance of any proposed amendment, supplement or
consent under this Section 8.2 to each of the Rating Agencies
prior to obtaining consent thereto.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment,
supplement or consent pursuant to Section 8.1 or 8.2, the Owner
Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder and the
Indenture Trustee.
(b) It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee
pursuant to Section 8.2 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders and Noteholders shall be
subject to such reasonable requirements as the Owner Trustee may
prescribe.
(c) Promptly after the execution of any amendment to
the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State.
(d) Prior to the execution of any amendment to this
Agreement or the Certificate of Trust, the Owner Trustee shall be
entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to such
execution have been satisfied. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects
the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate.
The Certificateholders shall not have legal title to any part of
the Owner Trust Estate. The Certificateholders shall be entitled
to receive distributions with respect to their undivided
ownership interest therein only in accordance with Articles V and
VII. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate
to terminate this Agreement or the trusts hereunder or entitle
any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except
for Section 2.7 and Section 9.12, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the
Seller, the Certificateholders, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal
or equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 9.3 Notices. All demands, notices and
communications upon or to the Seller, the Servicer, the
Administrator, the Indenture Trustee, the Owner Trustee, the
Rating Agencies or any Certificateholder under this Agreement
shall be delivered as specified in Appendix B to the Pooling and
Servicing Agreement.
SECTION 9.4 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed
enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the
rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts (and by
different parties on separate counterparts), each of which when
so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument.
SECTION 9.6 Successors and Assigns. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, the Seller, the Owner Trustee and each
Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding
any prior termination of this Agreement, the Trust (or the Owner
Trustee on behalf of the Trust), and each Certificateholder or
Certificate Owner, by accepting a Certificate (or interest
therein), hereby covenant and agree that they shall not, prior to
the date which is one year and one day after the termination of
this Agreement acquiesce, petition or otherwise invoke or cause
the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar
official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the
Seller.
SECTION 9.8 No Recourse. Each Certificateholder or
Certificate Owner by accepting a Certificate (or interest
therein) acknowledges that such Person's Certificate (or interest
therein) represents beneficial interests in the Trust only and
does not represent interests in or obligations of the Seller, the
Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any
Affiliate thereof and no recourse, either directly or indirectly,
may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the
Certificates or the Basic Documents. Except as expressly
provided in the Basic Documents, neither the Seller, the Servicer
nor the Owner Trustee in their respective individual capacities,
nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be
personally liable for, nor shall recourse be had to any of them
for, the distribution of Certificate Balance with respect to or
interest on the Certificates, or the Owner Trustee's performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Certificates or this Agreement,
it being expressly understood that said covenants and obligations
have been made by the Owner Trustee solely in its capacity as the
Owner Trustee. Each Certificateholder or Certificate Owner by
the acceptance of a Certificate (or beneficial interest therein)
shall agree that, except as expressly provided in the Basic
Documents, in the case of nonpayment of any amounts with respect
to the Certificates, it shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom.
SECTION 9.9 Headings. The headings of the various
Articles and Sections herein are for purposes of reference only
and shall not affect the meaning or interpretation of any
provision hereof.
SECTION 9.10 Governing Law. This Agreement shall be
construed in accordance with the internal laws of the State of
Delaware, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 9.11 Certificate Transfer Restrictions. The
Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that
is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting
and holding a Certificate, the Holder thereof and the Certificate
Owner shall each be deemed to have represented and warranted that
it is not a Benefit Plan and, if requested to do so by the
Seller, the Certificateholder and the Certificate Owner shall
execute and deliver to the Owner Trustee an Undertaking Letter in
the form set forth in Exhibit D. The Certificates are also
subject to the minimum denomination specified in Section 3.2(a).
SECTION 9.12 [Reserved].
SECTION 9.13 Administrator. The Administrator is
authorized to execute on behalf of the Trust all such documents,
reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust to prepare, file or deliver
pursuant to the Basic Documents. Upon request, the Owner Trustee
shall execute and deliver to the Administrator a power of
attorney appointing the Administrator its agent and
attorney-in-fact to execute all such
documents, reports, filings,
instruments, certificates and opinions.
SECTION 9.14 Amended and Restated Trust Agreement.
This Trust Agreement is the amended and restated trust agreement
contemplated by the Trust Agreement dated as of July 11, 1994
between the Seller and the Owner Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above
written.
CHEMICAL BANK DELAWARE
as Owner Trustee
By: _____________________
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By: ______________________
Name: Xxxxxx X. Xxxx
Title: Vice President
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION, as
Servicer
By: _________________________
Name: R. Xxxxx Xxxx
Title: Vice President
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $ __________
R- CUSIP NO. __________
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
DISTRIBUTION, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY DISTRIBUTION IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED
IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A
PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (iii)
ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER
HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
[PURSUANT TO THE TRUST AGREEMENT, NAVISTAR
FINANCIAL RETAIL RECEIVABLES CORPORATION ("NFRRC")
SHALL RETAIN BENEFICIAL AND RECORD OWNERSHIP OF
CERTIFICATES REPRESENTING AT LEAST 1% OF THE
CERTIFICATE BALANCE, AND ANY ATTEMPTED TRANSFER OF THIS
CERTIFICATE THAT REDUCES THE BENEFICIAL AND RECORD
INTEREST OF NFRRC TO BELOW 1% OF THE CERTIFICATE
BALANCE SHALL BE VOID.]
Navistar Financial 1994-B Owner Trust
6.400% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the
Trust, as defined below, the property of which includes
a pool of retail instalment sale contracts for, and
retail loans evidenced by notes secured by, new and
used medium and heavy duty trucks, buses and trailers,
which contracts
and loans have been sold to the Trust by Navistar Financial
Retail Receivables Corporation.
(This Certificate does not represent an interest in or
obligation of Navistar Financial Retail Receivables
Corporation, Navistar Financial Corporation, Navistar
International Transportation Corp., Navistar
International Corporation, the Owner Trustee or any of
their respective affiliates, except to the extent
described below.)
THIS CERTIFIES THAT _________________________ is the
registered owner of a nonassessable, fully-paid, fractional
undivided interest in Navistar Financial 1994-B Owner Trust (the
"Trust") formed by Navistar Financial Retail Receivables
Corporation, a Delaware corporation, (the "Seller").
The Trust was created pursuant to a trust agreement,
dated as of July 11, 1994 (as amended and restated as of _____,
1994 and as further amended, restated or supplemented from
time to time, the "Trust Agreement"), between the Seller and
CHEMICAL BANK DELAWARE, as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them
in the Trust Agreement.
This Certificate is one of the duly authorized
Certificates designated as "____% Asset Backed Certificates" (the
"Certificates"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the Trust Agreement,
the terms of which are incorporated herein by reference and made
a part hereof, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Under the Trust Agreement, there shall be distributed
on the 15th day of each calendar month or, if such 15th day is
not a Business Day, the next succeeding Business Day, commencing
on ___________, 1994 (each, a "Distribution Date"), to the Person
in whose name this Certificate is registered on the related
Record Date (as defined below), such Certificateholder's
fractional undivided interest in the amount of interest on and
distributions in respect of Certificate Balance to be distributed
to Certificateholders on such Distribution Date; provided,
however, that the Certificateholder's Principal Distributable
Amount will be zero until the Notes have been paid in full. The
entire unpaid Certificate Balance on this Certificate shall be
due and payable on the Distribution Date in _____, 199_ (the
"Final Scheduled Payment Date"). The "Record Date," with respect
to any Distribution Date, means the close of business on the day
immediately preceding such Distribution Date, or if Definitive
Certificates are issued, the last day of the preceding Monthly
Period.
The distributions in respect of Certificate Balance and
interest on this Certificate are payable in such coin or currency
of the United States of America as at the time of distribution is
legal tender for payment of public and private debts. All
distributions made by the Trust with respect to this Certificate
shall be applied first to interest due and payable on this
Certificate as provided above and then to the unpaid
distributions in respect of Certificate Balance of this
Certificate.
The Holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this
Certificate are subordinated to the rights of the Noteholders as
and to the extent described in the Pooling and Servicing
Agreement and the Indenture.
It is the intention of the Seller, the Servicer and the
Certificateholders and Certificate Owners that, solely for
purposes of federal income, state and local income and franchise
taxes and any other taxes imposed upon, measured by or based upon
gross or net income, the Trust shall be treated as a partnership.
Except as otherwise required by appropriate taxing authorities,
the Seller and the other Certificateholders and Certificate
Owners by acceptance of a Certificate (or interest therein),
agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as interests
in such partnership.
Each Certificateholder or Certificate Owner, by its
acceptance of a Certificate or, in the case of a Certificate
Owner, a beneficial interest in a Certificate, covenants and
agrees that such Certificateholder or Certificate Owner, as the
case may be, shall not, prior to the date which is one year and
one day after the termination of the Trust Agreement, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the
process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Seller under any
federal or state bankruptcy, insolvency, reorganization or
similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the
Seller or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller.
Distributions on this Certificate shall be made as
provided in the Trust Agreement by the Owner Trustee by wire
transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), distributions shall be made by
wire transfer in immediately available funds to the account
designated by such
nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee
of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office maintained for
such purpose by the Owner Trustee in the Borough of Manhattan,
the City of New York.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Owner Trustee
by manual signature, this Certificate shall not entitle the
Holder hereof to any benefit under the Trust Agreement or the
Pooling and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
NAVISTAR FINANCIAL 1994-B
OWNER TRUST
CHEMICAL BANK DELAWARE,
not in its individual capacity
but solely as Owner Trustee
Dated: ______________ By: _________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
CHEMICAL BANK DELAWARE CHEMICAL BANK DELAWARE,
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee OR as Owner Trustee
by Chemical Bank,
as Authenticating Agent
By:_________________________
Authorized Officer By: ______________________
Authorized Officer
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or
an interest in, the Seller, the Servicer, Navistar International
Transportation Corp., Navistar International Corporation, the
Indenture Trustee, the Owner Trustee or any affiliates of any of
them and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated
herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the
Receivables (and certain other amounts), all as more specifically
set forth herein and in the Trust Agreement and the Pooling and
Servicing Agreement. A copy of each of the Pooling and Servicing
Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Seller, and at such
other places, if any, designated by the Seller, by any
Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of
the rights and obligations of the Seller and the rights of the
Certificateholders under the Trust Agreement at any time by the
Seller and the Owner Trustee with the consent of (i) the Holders
of the Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and (ii) Certificateholders whose
Certificates evidence not less than a majority of the Voting
Interests, each as of the close of the preceding Distribution
Date. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the
Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to
certain limitations therein set forth, the transfer of this
Certificate is registerable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by (i) a
written instrument of transfer in form satisfactory to the Owner
Trustee and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing and
(ii) if requested by the Seller, the Undertaking Letter required
by Section 9.11(a) of the Trust Agreement, and thereupon one or
more new Certificates of authorized denominations evidencing the
same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is Chemical Bank, New York,
New York.
The Certificates are issuable only as registered
Certificates without coupons (i) in denominations of $20,000 or
(ii) integral multiples of $1,000 in excess thereof, except for
one Certificate which may be issued to the Seller. As provided
in the Trust Agreement and subject to certain limitations therein
set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same;
provided, however, that no Certificate may be subdivided upon
registration of transfer or exchange in a manner such that the
denomination of any resulting Certificate would have been less
than $20,000 if such Certificate had been issued in the original
distribution of Certificates. No service charge shall be made
for any such registration of transfer or exchange, but the Owner
Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Registrar and any
agent of the Owner Trustee or the Certificate Registrar may treat
the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby shall terminate
upon the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to the Trust
Agreement and the Pooling and Servicing Agreement and the
disposition of all property held as part of the Trust. The
Servicer of the Receivables may at its option purchase the assets
of the Trust other than the Designated Accounts and the
Certificate Distribution Account at a price specified in the
Pooling and Servicing Agreement, and such purchase of the
Receivables and other property of the Trust shall effect early
retirement of the Certificates; provided, however, that such
right of purchase is exercisable only as of the last day of any
Monthly Period as of which the Aggregate Receivables Balance is
10% or less of the Initial Aggregate Receivables Balance.
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 1994-B Owner Trust
THIS Certificate of Trust of Navistar Financial 1994-B
Owner Trust (the "Trust"), dated as of __________, 1994, is being
duly executed and filed by CHEMICAL BANK DELAWARE, a Delaware
banking corporation, as trustee, to form a business trust under
the Delaware Business Trust Act (12 Del. C. Section 3801 et
seq.).
1. Name. The name of the business trust formed
hereby is Navistar Financial 1994-B Owner Trust.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware is CHEMICAL
BANK DELAWARE, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust shall be effective on
__________, 1994.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust as
of the date first-above written.
CHEMICAL BANK DELAWARE, not in its
individual capacity but solely as Owner
Trustee under a Trust Agreement dated as
of __________, 1994
By: _______________________________
Name:
Title:
EXHIBIT C
Form of Certificate Depository Agreement
EXHIBIT D
Form of Undertaking Letter
