Exhibit 4.3
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TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF APRIL 30, 2002
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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 Certificateholders.................................3
2.8 Title to Trust Property.............................................3
2.9 Situs of Trust......................................................3
2.10 Representations and Warranties of the Seller........................3
ARTICLE III
THE CERTIFICATES..........................................................4
3.1 Initial Certificate Ownership.......................................4
3.2 Form of the Certificates............................................4
3.3 Execution, Authentication and Delivery..............................5
3.4 Registration; Registration of Transfer and Exchange of
Certificates........................................................5
3.5 Mutilated, Destroyed, Lost or Stolen Certificates...................6
3.6 Persons Deemed Certificateholders...................................7
3.7 Access to List of Certificateholders' Names and Addresses...........7
3.8 Maintenance of Corporate Trust Office...............................8
3.9 Appointment of Paying Agent.........................................8
3.10 Seller as Certificateholder.........................................8
ARTICLE IV
ACTIONS BY OWNER TRUSTEE..................................................8
4.1 Prior Notice to Certificateholders with Respect to Certain
Matters.............................................................8
4.2 Action by Certificateholders with Respect to Certain Matters........9
4.3 Action by Certificateholders with Respect to Bankruptcy.............9
4.4 Restrictions on Certificateholders' Power...........................9
4.5 Majority Control...................................................10
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...................................10
5.1 Establishment of Certificate Distribution Account..................10
5.2 Application of Trust Funds.........................................10
5.3 Method of Payment..................................................11
5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others.........................................11
5.5 Signature on Returns...............................................12
ARTICLE VI
THE OWNER TRUSTEE........................................................12
6.1 Duties of Owner Trustee............................................12
6.2 Rights of Owner Trustee............................................13
6.3 Acceptance of Trusts and Duties....................................13
6.4 Action upon Instruction by Certificateholders......................15
6.5 Furnishing of Documents............................................15
6.6 Representations and Warranties of Owner Trustee....................15
6.7 Reliance; Advice of Counsel........................................16
6.8 Owner Trustee May Own Certificates and Notes.......................17
6.9 Compensation and Indemnity.........................................17
6.10 Replacement of Owner Trustee.......................................17
6.11 Merger or Consolidation of Owner Trustee...........................18
6.12 Appointment of Co-Trustee or Separate Trustee......................18
6.13 Eligibility Requirements for Owner Trustee.........................19
ARTICLE VII
TERMINATION OF TRUST AGREEMENT...........................................20
7.1 Termination of Trust Agreement.....................................20
ARTICLE VIII
AMENDMENTS...............................................................21
8.1 Amendments Without Consent of Certificateholders or Noteholders....21
8.2 Amendments With Consent of Certificateholders and Noteholders......22
8.3 Form of Amendments.................................................22
ARTICLE IX
MISCELLANEOUS............................................................23
9.1 No Legal Title to Owner Trust Estate. ............................23
9.2 Limitations on Rights of Others....................................23
9.3 Notices............................................................23
9.4 Severability.......................................................23
9.5 Counterparts.......................................................23
9.6 Successors and Assigns.............................................23
9.7 No Petition Covenant...............................................23
9.8 No Recourse........................................................24
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9.9 Headings...........................................................24
9.10 Governing Law......................................................24
9.11 Certificate Transfer Restrictions..................................24
9.12 Administrator......................................................24
9.13 Amended and Restated Trust Agreement...............................25
EXHIBITS
Exhibit A Form of Certificate
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TRUST AGREEMENT, dated as of April 30, 2002 between Navistar Financial
Retail Receivables Corporation, a Delaware corporation, as Seller, and Chase
Manhattan Bank USA, National Association, a national banking association, as
Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 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 Chase Manhattan Bank USA, National Association, acting as Owner
Trustee of the Navistar Financial 2002-A Owner Trust (as it may be amended and
supplemented from time to time, the "Pooling and Servicing Agreement"). All
references herein to "the Agreement" or "this Agreement" are to this Trust
Agreement as it may be amended and supplemented from time to time, the Exhibits
hereto and the capitalized terms used herein which are defined in such Appendix
A, and all references herein to Articles, Sections and subsections are to
Articles, Sections and subsections of this Agreement unless otherwise specified.
The rules of construction set forth in Part II of such Appendix A shall be
applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "Navistar
Financial 2002-A Owner 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 Certificateholders 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 and the Related
Security;
(ii) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer or exchange the Notes and
to transfer and exchange the Certificates;
(iii) to acquire property and assets from the Seller pursuant to the
Pooling and Servicing Agreement, to make payments or distributions on the
Securities to the Securityholders, to make deposits into and withdrawals
from the Reserve Account, the Pre-
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Funding Account, the Negative Carry Account and other accounts established
pursuant to the Basic Documents and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of this
Agreement and the Pooling and Servicing Agreement any portion of the Trust
Estate released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(v) to have the Owner Trustee enter into and perform obligations and
exercise rights on behalf of the Trust under the Basic Documents to which
it is to be a party;
(vi) to engage in those activities, including having the Owner Trustee
enter into agreements, that are necessary, suitable, desirable or
convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of payments or distributions to the
Securityholders.
The Owner Trustee, on behalf of the Trust, shall not engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints Chase
Manhattan Bank USA, National Association as trustee of the Trust (the "Owner
Trustee") effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, on
behalf of the Trust, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Seller, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be deposited in the Certificate Distribution Account. The
Seller shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 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
Owner Trustee, on behalf of the Trust, under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a common law trust
duly organized under the laws of the State of Delaware, that this Agreement
constitute the governing instrument of such trust and that the Certificates
represent the equity interests therein. The rights of the Certificateholders
shall be determined as set forth herein and the relationship between the parties
hereto created by this
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Agreement shall not constitute indebtedness for any purpose. It is the intention
of the parties hereto that, solely for purposes of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon, measured
by, or based upon gross or net income, the Trust shall be treated as a division
or branch of the Seller. The parties agree that, unless otherwise required by
appropriate tax authorities, the Owner Trustee shall file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a division or branch of the Seller for such tax
purposes; provided, however, that until the Seller receives a ruling from the
Illinois Department of Revenue or an opinion of counsel reasonably acceptable to
the Owner Trustee that the Trust will be treated as a branch or division of the
Seller for purposes of the Illinois Income Tax Act and the Illinois Personal
Property Tax Replacement Tax Act, the Seller will, for purposes of the Illinois
Income Tax Act and the Illinois Personal Property Tax Replacement Tax Act(i)
include the taxable income of the Trust in the combined tax return filed by the
combined group that includes the Seller, (ii) take all steps necessary to treat
the Trust as a member of the same combined group of which the Seller is a member
and (iii) provide information to the Owner Trustee to confirm that the actions
required by clauses (i) and (ii) have been effected. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth in
this Agreement and the Pooling and Servicing Agreement with respect to
accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Certificateholders. No Certificateholder shall
have any personal liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Owner Trustee, on behalf of the
Trust, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a co-trustee or a separate
trustee, in which case title shall be deemed to be vested in a co-trustee and/or
a separate trustee, as the case may be.
SECTION 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 Owner Trustee only in Delaware or New York,
and payments and distributions shall be made by the Owner Trustee only from
Delaware or New York. The only office of the Trust shall be the Corporate Trust
Office of the Owner Trustee in Delaware.
SECTION 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.
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(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Owner Trustee on behalf of the Trust, and the Seller has
duly authorized such sale and assignment to the Owner Trustee, on behalf of
the Trust, by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the Seller
by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party or
by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents),
or violate any law or, to the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall constitute
a legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any
Certificates issued pursuant hereto or, (ii) seeking to prevent the
issuance of such Certificates or the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, such Certificates or this Agreement.
ARTICLE III
THE CERTIFICATES
SECTION 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.
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SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set forth in
Exhibit A. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Responsi ble Officer of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Owner Trustee, shall be, when
authenticated pursuant to Section 3.3, validly issued and entitled to the
benefits of the Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders) all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form and
shall be in definitive form only. The terms of the Certificates set forth
in Exhibit A shall form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with the
sale of the Initial Receivables to the Owner Trustee, on behalf of the Trust,
pursuant to the Pooling and Servicing Agreement, the Owner Trustee shall
execute, authenticate and deliver Certificates representing a 100% ownership
interest in the Trust 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 JPMorgan Chase 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. JPMorgan Chase
Bank shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of
Certificate Registrar.
(b) The initial Certificateholders may at any time, without consent of
the Noteholders, sell, transfer, convey or assign in any manner its rights
to and interests in the Certificates (including its right to distributions
from the Reserve Account), provided that: (i) such
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action will not result in a reduction or withdrawal of the rating of any
class of Notes, (ii) the Certificateholders provide to the Owner Trustee
and the Indenture Trustee an opinion of independent counsel that such
action will not cause the Trust to be treated as an association (or
publicly traded partnership) taxable as a corporation for Federal income
tax purposes, (iii) such transferee or assignee agrees to take positions
for tax purposes consistent with the tax positions agreed to be taken by
the Certificateholders and (iv) the conditions set forth in Section 9.11
have been satisfied. In addition, no transfer of a Certificate shall be
registered unless the transferee shall have provided to the Owner Trustee
and the Certificate Registrar an opinion of counsel that in connection with
such transfer no registration of the Certificates is required under the
Securities Act or applicable state law or that such transfer is otherwise
being made in accordance with all applicable federal and state securities
laws.
(c) Subject to Section 3.4(b), upon surrender for registration of
transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute, authenticate and deliver (or
shall cause JPMorgan Chase Bank as its authenticating agent to authenticate
and deliver), in the name of the designated transferee or transferees, one
or more new Certificates in authorized denominations of a like aggregate
amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged for other
Certificates of a like aggregate percentage interest upon surrender of the
Certificates to be exchanged at the Corporate Trust Office maintained
pursuant to Section 3.8. Whenever any Certificates are so surrendered for
exchange, the Owner Trustee shall execute, authenticate and deliver (or
shall cause JPMorgan Chase Bank as its authenticating agent to authenticate
and deliver) one or more Certificates dated the date of authentication by
the Owner Trustee or any authenticating agent. Such Certificates shall be
delivered to the Holder making the exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed or otherwise disposed
of by the Owner Trustee or Certificate Registrar in accordance with its
customary practice.
(f) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
SECTION 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 such
security or indemnity as may be required by it to hold it harmless, then,
in the absence of notice to the
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Certificate Registrar or the Owner Trustee that such Certificate has been
acquired by a protected purchaser, the Owner Trustee shall execute and the
Owner Trustee shall authenticate and deliver (or shall cause JPMorgan Chase
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 protected purchaser (as defined in Article 8 of the
Uniform Commercial Code) 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 protected purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of
any loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee may require the payment by the
Holder of such Certificate of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Owner Trustee
and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation under this
Agreement , whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time or be enforced by anyone, and shall
be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Certificates duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 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
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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 JPMorgan Chase Bank, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its principal office for such purposes. The
Owner Trustee shall give prompt written notice to the Seller and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may 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 JPMorgan
Chase Bank, and any co-paying agent chosen by JPMorgan Chase Bank, and
acceptable to the Owner Trustee. JPMorgan Chase Bank shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner Trustee. If
JPMorgan Chase Bank shall no longer be the Paying Agent, the Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to execute and deliver to
the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
such successor Paying Agent or additional Paying Agent shall hold all sums, if
any, held by it for distribution to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 6.3, 6.6, 6.7, 6.8 and 6.9 shall apply, mutatis mutandis, to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.10 Seller as Certificateholder. The Seller in its individual or
any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
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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 on behalf of the Trust
(other than an action to collect on a Receivable or an action by the
Indenture Trustee pursuant to the Indenture) and the compromise of any
action, claim or lawsuit brought on behalf of or against the Trust or the
Owner Trustee (other than an action to collect on a Receivable or an action
by the Indenture Trustee pursuant to the Indenture);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by
the Note Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable; or
(f) the amendment of the Pooling and Servicing Agreement in
circumstances where the consent of any Noteholder is required.
SECTION 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.
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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 a majority of the
ownership interest in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the ownership interest in
the Trust at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
(a) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain at JPMorgan Chase Bank in the name of the Owner
Trustee an Eligible Deposit Account known as the Navistar Financial 2002-A
Owner Trust Certificate Distribution Account (the "Certificate Distribution
Account"), bearing an additional designation clearly indicating that the
funds deposited therein are held for the benefit of the Certificateholders.
(b) The Owner Trustee shall possess all right, title and interest in
and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. Except as otherwise
provided herein or in the Pooling and Servicing Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of the
Owner Trustee for the benefit of the Certificateholders. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Servicer shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall cause the Owner Trustee to transfer any cash and/or any
investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
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SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall (based on the
information contained in the Servicer's Certificate delivered on the
related Determination Date) distribute to the Certificateholders, on a pro
rata basis, amounts deposited in the Certificate Distribution Account
pursuant to Sections 4.07(b), 5.01(b)(i), 5.03(b), 5.05, 9.02(a) and
9.02(d) of the Pooling and Servicing Agreement.
(b) On each Distribution Date, the Owner Trustee shall send (or shall
cause to be sent) to each Certificateholder the statement described in
Section 4.09(a) of the Pooling and Servicing Agreement.
(c) If any withholding tax is imposed on distributions of the Owner
Trust Estate (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise dis tributable to the Certificateholder
in accordance with this Section 5.2. The Owner Trustee is hereby authorized
and directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally required to be paid by the Owner Trustee, on behalf of the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any such tax in appropriate proceedings and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time
it is withheld by the Owner Trustee and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this subsection 5.2(c). If a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the
Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall,
upon notice from the Indenture Trustee that such funds exist, submit an
Issuer Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the
order of the Seller.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor or, where possible,
by intra- bank book entry credit, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Record Date and the distribution required to be made
to such Certificateholders exceeds $100,000 or (ii) by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
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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 division or branch of the
Seller for federal income tax purposes, (d) cause such tax returns to be signed
in the manner required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with subsection 5.2(c) with
respect to income or distributions to Certificateholders.
SECTION 5.5 Signature on Returns. The Owner Trustee shall sign on behalf of
the Trust any and all tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Seller.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement, the Pooling 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.
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(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 it is to be a party, on behalf of the Trust, in such form as the Seller
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of it, on behalf of the
Trust, pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Administrator recommends with
respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Chase Manhattan Bank
USA, National Association acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of
this Agreement. The Owner Trustee shall not be liable or accountable hereunder
or under any
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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 Certificate holders under this Agreement or to
Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of
any Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Owner Trustee or of any intervening
assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Seller or the Servicer
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation or
any action of the Administrator, the Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Administrator or any Certificate holder;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or any amounts payable
with respect to the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of,
and makes no representation as to, the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the Seller
or for the form, character, genuineness, sufficiency, value or validity of
any of the Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates (other than
the certificate of authentication on the Certificates) or of any
Receivables or any related documents, and the Owner Trustee shall in no
event assume or incur any liability, duty or obligation to any Noteholder
or to any Certificateholder, other than as expressly provided for herein
and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents
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or otherwise and the Owner Trustee shall not have any obligation or
liability to perform the obligations of the Trust under this Agreement or
the Basic Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the
Indenture, the Servicer under the Pooling and Servicing Agreement or NFC
under the Purchase Agreement; and
(g) the Owner Trustee shall not be under any obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in
any Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence or willful misconduct
in the performance of any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4 and Section 6.1(g), the Certificateholders
may by written instruction direct the Owner Trustee in the management of
the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised
by counsel, that such action is likely to result in liability on the part
of the Owner Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
(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
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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 national bank duly organized, validly existing and in good
standing under the federal laws of the United States of America. The
eligibility requirements set forth in Section 6.13 (a) - (c) are satisfied
with respect to it.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or governmental authority applicable to
the Owner Trustee or any of its assets, (ii) shall not violate any
provision of the charter or by-laws of the Owner Trustee, or (iii) shall
not violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Owner Trust Estate pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as Owner Trustee
under this Agreement or on the transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of
this Agreement shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency
regulating the corporate trust activities of Chase Manhattan Bank USA,
National Association.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 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
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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 from the Seller for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, custodians, nominees,
representatives, experts and counsel as it may employ in connection with the
exercise and performance of its rights and its duties hereunder. The Servicer
shall indemnify the Owner Trustee and its successors, assigns, agents and
servants in accordance with the provisions of Section 7.01 of the Pooling and
Servicing Agreement. The compensation and indemnities described in this Section
6.9 shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. Any amounts paid to the Owner Trustee pursuant to
this Article VI shall not be deemed to be a part of the Owner Trust Estate
immediately after such payment.
SECTION 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
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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 Agree ment, with like effect as if originally named as Owner
Trustee. The Administrator shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement. The Administrator
and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
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SECTION 6.11 Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Owner Trust Estate or any Financed Vehicle may at
the time be located, the Administrator and the Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust Estate, or any part
thereof, and, subject to the other provisions of this Section 6.12, such
powers, duties, obligations, rights and trusts as the Administrator and the
Owner Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after the receipt
by it of a request to do so, the Owner Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Owner Trust
Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement (unless such other trustee acts or fails to act at the
direction of such first trustee); and
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(iii) the Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be a corporation, a national banking association or a
bank; (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 or be otherwise
satisfactory to Xxxxx'x Investors Service. If such Person or bank shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 6.13, the combined capital and surplus of such Person or bank shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.13, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 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 final distribution by
the Owner Trustee of all monies or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture, the Pooling and
Servicing Agreement (including the exercise by the Servicer of its option
to purchase the Receivables pursuant to Section 9.01 of the Pooling and
Servicing Agreement) and Article V;
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provided, however, that in no event shall the Trust created by this
Agreement continue beyond the expiration of 21 years from the date hereof.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any
court for a partition or winding up of all or any part of the Trust or the
Owner Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) This Agreement shall be irrevocable. Except as provided in Section
7.1(a) and in this Section 7.1(b), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or
this Agreement. Each of the Seller and the Owner Trustee acknowledges that
the Indenture Trustee, on behalf of the Noteholders, is a third-party
beneficiary of this Agreement. For so long as the Notes are outstanding,
neither the Trust nor this Agreement shall be revoked without the consent
of the Indenture Trustee. Each of the Seller and the Owner Trustee
acknowledges that the Indenture Trustee, as an agent of the Noteholders,
maintains a legitimate interest in ensuring that the Trust is not revoked
prior to the fulfillment of the Trust objectives. In no event may this
Agreement be amended without the consent of the Indenture Trustee if the
effect of such amendment is the revocation or termination of this Trust
other than in accordance with this Section 7.1.
(c) Notice of any termination of the Trust specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates
to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to subsection 9.02(b) of
the Pooling and Servicing Agreement, stating: (i) the Distribution Date
upon or with respect to which the final distribution on the Certificates
shall be made upon presentation and surrender of the Certificates at the
office of the Owner Trustee; (ii) the amount of any such final
distribution; and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office of the Owner
Trustee therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Owner
Trustee at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Owner Trustee shall
cause to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the written notice specified in Section 7.1(c), the Owner Trustee shall
give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Owner Trust Estate after
exhaustion of such remedies in the preceding sentence shall be deemed
property of the Seller and distributed by the Owner Trustee to the Seller.
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(e) Within sixty days of the later of (i) the cancellation of all of
the Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii)
payment to the Seller of funds remaining in the Owner Trust Estate pursuant
to Section 7.1(d), the Owner Trustee shall provide each of the Rating
Agencies with written notice stating that all Certificates have been so
canceled or such funds have been so paid to the Seller.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Securityholders (but with prior notice to each
of the Rating Agencies) to (i) cure any ambiguity, (ii) correct or supplement
any provision in this Agreement that may be defective or inconsistent with any
other provision in this Agreement or any other Basic Document, (iii) add or
supplement any credit enhancement for the benefit of the Securityholders
(provided that if any such addition shall affect any class of Securityholders
differently than any other class of Securityholders, then such addition shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any class of the Securityholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee for
the benefit of the Securityholders, (v) evidence and provide for the acceptance
of the appointment of a successor trustee with respect to the Owner Trust Estate
and add to or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VI, or (vi) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the Securityholders.
SECTION 8.2 Amendments With Consent of Certificateholders and Noteholders.
This Agreement may be amended from time to time by the Seller and the Owner
Trustee with the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Controlling Class as of the close of
business on the preceding Distribution Date and the consent of the Holders of
Certificates evidencing not less than a majority of the ownership interests in
the Owner Trust Estate as of the close of business on the preceding Distribution
Date (which consent, whether given pursuant to this Section 8.2 or pursuant to
any other provision of this Agreement, shall be conclusive and binding on such
Person and on all future holders of such Notes or Certificates and of any Notes
or Certificates issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the Notes or
Certificates) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any Note or
the Specified Reserve Account Balance, (b) reduce the aforesaid percentage
required to consent to any such amendment or (c) amend Section 4.3, without the
consent of the Holders of all of the Notes and the Holders of all of the
Certificates then outstanding. The Administrator shall furnish notice of the
substance of any proposed amendment, supplement or consent under this Section
8.2 to each of the Rating Agencies prior to obtaining consent thereto.
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SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
and Noteholders shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(c) Prior to the execution of any amendment to this Agreement, 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 9.12, the
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Seller, the Certificateholders, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein. The Administrator shall be a third
party beneficiary with respect to the rights granted to it under Section
6.10(a).
SECTION 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.
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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 Owner Trustee, on behalf of the Trust, and each
Certificateholder, by accepting a Certificate (or interest therein), hereby
covenant and agree that they shall not, prior to the date which is one year and
one day after the termination of this Agreement acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Seller
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 9.8 No Recourse. Each Certificateholder by accepting a Certificate
(or interest therein) acknowledges that such Person's Certificate (or interest
therein) represents beneficial interests in the Trust only and does not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents. Except as expressly provided
in the Basic Documents, neither the Seller, the Servicer nor the Owner Trustee
in their respective individual capacities, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the distribution of any amount with respect to the Certificates, or the Owner
Trustee's performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Certificates or this Agreement,
it being expressly understood that said covenants and obligations have been made
by the Owner Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or beneficial interest
therein) shall agree that, except as expressly provided in the Basic Documents,
in the case of
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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 shall be deemed to have represented and warranted that it is not
a Benefit Plan.
SECTION 9.12 Administrator. The Administrator is authorized to execute on
behalf of the Owner Trustee all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Owner Trustee to
prepare, file or deliver pursuant to the Basic Documents. Upon request, the
Owner Trustee shall execute and deliver to the Administrator a power of attorney
appointing the Administrator its agent and attorney-in-fact to execute all such
documents, reports, filings, instruments, certificates and opinions.
SECTION 9.13 Amended and Restated Trust Agreement. This Trust Agreement is
the amended and restated trust agreement contemplated by the Trust Agreement
dated as of April 8, 2002 between the Seller and the Owner Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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EXHIBIT A
FORM OF CERTIFICATE
NUMBER
R-__
OWNERSHIP INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON APRIL 30, 2002, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER.
Navistar Financial 2002-A Owner Trust
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail loans evidenced by notes
secured by new and used medium and heavy duty trucks, truck chassis, buses
and trailers.
(This Certificate does not represent an interest in or obligation of
Navistar Financial Retail Receivables Corporation, Navistar Financial
Corporation, International Truck and Engine Corporation, Navistar
International Corporation, the Owner Trustee or any of their respective
affiliates, except to the extent described below.)
-1-
THIS CERTIFIES THAT _________________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in Navistar Financial
2002-A Owner Trust (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of April 8,
2002 (as amended and restated as of April 30, 2002 and as further amended,
restated or supplemented from time to time, the "Trust Agreement"), between the
Seller and Chase Manhattan Bank USA, National Association, as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, the terms of which are incorporated
herein by reference and made a part hereof, to which Trust Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Pooling and
Servicing Agreement and the Indenture.
Each Certificateholder with respect to a Certificate, by its acceptance of
a Certificate, covenants and agrees that such Certificateholder with respect to
a Certificate, shall not, prior to the date which is one year and one day after
the termination of the Trust Agreement, acquiesce, petition or otherwise invoke
or cause the Seller to invoke the process of any court or governmental authority
for the purpose of commencing or sustaining a case against the Seller under any
federal or state bankruptcy, insolvency, reorganization or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
Distributions on this Certificate shall be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer, check mailed or, where
possible, intra-bank book entry to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee by manual signature, this Certificate
shall not entitle the
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Holder hereof to any benefit under the Trust Agreement or the Pooling and
Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Owner Trustee, not in its individual capacity, but
solely as Owner Trustee, has caused this Certificate to be duly executed.
Dated: ______________, ____
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK USA, CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION NATIONAL ASSOCIATION,
not in its individual not in its individual
capacity but solely capacity but solely as
as Owner Trustee OR Owner Trustee by
JPMorgan Chase Bank,
as Authenticating Agent
By: By:
----------------------- -----------------------
Authorized Officer Authorized Officer
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, International Truck and Engine Corporation, Navistar
International Corporation, the Indenture Trustee, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Receivables
(and certain other amounts), all as more specifically set forth herein and in
the Trust Agreement and the Pooling and Servicing Agreement. A copy of each of
the Pooling and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Seller, and at such
other places, if any, designated by the Seller, by any Certificateholder upon
written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of (i) the Holders of
the Notes evidencing not less than a majority of the Outstanding Amount of the
Controlling Class, and (ii) Certificateholders whose Certificates evidence not
less than a majority of the ownership interest in the Trust, each as of the
close of the preceding Distribution Date. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing and (ii) certain opinions required by
Section 3.4(b) of the Trust Agreement, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is JPMorgan Chase
Bank, New York, New York.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required
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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.
-6-
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.
