FIRST AMENDED CONTROL AGREEMENT
EXECUTION
COPY
FIRST AMENDED CONTROL AGREEMENT
This
First Amended Control Agreement, dated as of February 20, 2007 (this “Agreement”), is among
Truck Retail Accounts Corporation, as seller (the “Seller”), Navistar
Financial Corporation, as servicer (the “Servicer”), JPMorgan
Chase Bank N.A., as successor to Bank One, NA (Main Office Chicago), as agent
(the “Secured
Party”), and The Bank of New York as successor to JPMorgan Chase Bank,
N.A., as securities intermediary (the “Securities
Intermediary”).
RECITALS
WHEREAS,
pursuant to the Receivables Purchase Agreement, the Seller has granted to the
Secured Party a security interest in investment property consisting of the
Securities Account, related Security Entitlements and the Financial Assets
and
other investment property from time to time included therein; and
WHEREAS,
the parties hereto desire that the security interest of the Secured Party in
the
Securities Account be a first priority security interest perfected by “control”
pursuant to Articles Eight and Nine of the UCC.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. General
Definitions. Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Agreement.
“Agreement”
has
the
meaning set forth in the Preamble.
“Business
Day” means
any day on which banks are not authorized or required to close in New York,
New
York or Chicago, Illinois and The Depository Trust Company of New York is open
for business.
“Blocked
Account”
means a trust account number 232874 in the name “Blocked Account for JPMorgan
Chase Bank, N.A., as Agent” established with the Securities Intermediary
together with any successor accounts established pursuant to the Receivables
Purchase Agreement.
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“Entitlement
Holder”
means, with respect to any Financial Asset, a Person identified in the
records
of the Securities Intermediary as the Person having a Security Entitlement
against the Securities Intermediary with respect to such financial
asset.
“Entitlement
Order”
means a notification directing the Securities Intermediary to transfer
or redeem
a financial asset.
“Financial
Asset” has
the meaning specified in Section 8-102(a)(9) of the UCC.
“Person”
means
any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision
thereof.
“Rating
Agencies”
means Xxxxx’x Investors Service, Inc. and Standard and Poor’s Ratings
Group.
“Receivables
Purchase
Agreement” means the Receivables Purchase Agreement, dated as of
April 8, 2004 (as amended, supplemented or otherwise modified and in effect
from time to time), among the Seller, the Servicer, Jupiter Securitization
Corporation, as Conduit and JPMorgan Chase Bank, N.A., as successor to Bank
One,
N.A., as Agent.
“Secured
Party” has
the meaning set forth in the Preamble.
“Securities
Account”
means the Blocked Account.
“Securities
Intermediary” has the meaning set forth in the Preamble.
“Security
Entitlement”
means the rights and property interest of an Entitlement Holder with
respect to
a financial asset, as specified in Part 5 of Article 8 of the
UCC.
“UCC”
means
the
Uniform Commercial Code as in effect in the State of New York on the date
hereof or any successor statute, or any comparable law, as the same may from
time to time be amended, supplemented or otherwise modified.
“Weekly
Settlement
Date” means the third Business Day of each week.
Section
1.02. Incorporation
of UCC by
Reference. Except as otherwise specified herein or as the
context may otherwise require, all terms used in this Agreement not otherwise
defined herein which are defined in the UCC shall have the meanings assigned
to
them in the UCC.
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ARTICLE
II
ESTABLISHMENT
OF CONTROL OVER SECURITIES ACCOUNT
Section
2.01. Establishment
of Securities
Account. The Securities Intermediary hereby confirms that
(i) the Securities Intermediary has established the Securities Account
specifically referenced in the definition thereof, (ii) the Securities
Account is an account to which Financial Assets are or may be credited,
(iii) the Securities Intermediary shall, subject to the terms of this
Agreement, treat the Secured Party as entitled to exercise the rights that
comprise any Financial Asset credited to the Securities Account, (iv) all
property delivered to the Securities Intermediary by or on behalf of the Seller
or the Secured Party for deposit to the Securities Account will promptly be
credited to such Securities Account and (v) all securities or other
property underlying any Financial Assets credited to the Securities Account
shall be registered in the name of the Securities Intermediary, endorsed to
the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
Financial Asset credited to the Securities Account be registered in the name
of
the Seller, payable to the order of the Seller or specifically endorsed to
the
Seller except to the extent the foregoing have been specially endorsed to the
Securities Intermediary or in blank.
Section
2.02. “Financial
Assets”
Election. The Securities Intermediary and the other parties
hereto hereby agree that each item of property (whether investment property,
financial asset, security, instrument or cash) credited to the Securities
Account shall be treated as a “financial asset” within the meaning of
Section 8-102(a)(9) of the UCC.
Section
2.03. Entitlement
Orders. Unless
and until the Securities Intermediary should have received an Entitlement Order
from the Secured Party, the Seller or the Servicer may give instructions to
the
Securities Intermediary relating to the redemption or transfer of Financial
Assets in the Securities Account. If at any time the Securities
Intermediary shall receive any Entitlement Order from the Secured Party with
respect to the Securities Account, the Securities Intermediary shall comply
with
such Entitlement Order without further consent by the Seller or any other
Person. After receipt of an Entitlement Order from the Secured Party,
the Securities Intermediary shall not comply with any Entitlement Order from
the
Seller or the Servicer unless and until the Securities Intermediary shall have
received notice from the Secured Party authorizing the Securities Intermediary
to follow any subsequent Entitlement Order delivered to the Securities
Intermediary by the Seller or the Servicer.
Section
2.04. Subordination
of Lien;
Waiver of Set-Off. In the event that the Securities
Intermediary has or subsequently obtains by agreement, operation of law or
otherwise a security interest in the Securities Account or any Security
Entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interests of the
Secured Party. The Financial Assets and other items deposited to the
Securities Account will not be subject to deduction, set-off, banker’s lien or
any other right in favor of any Person or entity other than the Secured Party
(except that the Securities Intermediary may set off against amounts on deposit
in the Securities Account (i) all amounts due to it in respect of its
customary fees and expenses for the routine maintenance and operation of such
Securities Account and (ii) the face amount of any checks which have been
credited to such Securities Account but are subsequently returned unpaid because
of uncollected or insufficient funds).
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Section
2.05. Notice
of Adverse
Claims. Except for the claims and interests of the Secured
Party and the Seller in the Securities Account, the Securities Intermediary
does
not know of any claim to, or interest in, the Securities Account or in any
Financial Asset credited thereto. If any Person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Securities Account
or
in any Financial Asset carried therein, and the Securities Intermediary has
actual knowledge thereof, the Securities Intermediary will promptly notify
the
Secured Party and the Seller thereof.
ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
Section
3.01. Representations,
Warranties
and Covenants of the Securities Intermediary. The Securities
Intermediary hereby represents and warrants to the Secured Party and the Seller,
and covenants that:
(a) The
Securities Account has been established as set forth in Section 2.01 and
will be maintained in the manner set forth herein until termination of this
Agreement. The Securities Intermediary shall not change the name or
account number of the Securities Account without the prior written consent
of
the Secured Party.
(b) No
Financial Asset carried in the Securities Account is or will be registered
in
the name of the Seller, payable to the order of the Seller, or specially
endorsed to the Seller, except to the extent such Financial Asset has been
endorsed to the Securities Intermediary or in blank.
(c) This
Agreement is the valid and legally binding obligation of the Securities
Intermediary.
(d) The
Securities Intermediary has not entered into, and until the termination of
this
Agreement, will not enter into, any agreement pursuant to which it agrees to
comply with Entitlement Orders of any Person other than the Secured Party,
the
Seller and the Servicer with respect to the Securities Account.
(e) The
Securities Intermediary has not entered into any other agreement with the Seller
or the Secured Party purporting to limit or condition the obligation of the
Securities Intermediary to comply with Entitlement Orders as set forth in
Section 2.03.
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ARTICLE
IV
RIGHTS
OF
THE SECURITIES INTERMEDIARY
Section
4.01. Indemnity. The
Servicer hereby agrees to defend, indemnify and hold harmless the Securities
Intermediary, its directors, officers, employees and agents from and against
any
and all claims, demands, causes of action, lawsuits, settlements, liabilities,
losses, damages, costs and expenses, including, without limitation, court costs
and reasonable attorneys’ fees and expenses, in any way related to or arising
out of or in connection with this Agreement or any action taken or not taken
pursuant to this Agreement, except to the extent caused by the Securities
Intermediary’s gross negligence or willful misconduct.
Section
4.02. Compensation
and
Expenses. The Servicer hereby agrees to pay to the Securities
Intermediary such compensation as the Securities Intermediary and the Servicer
shall agree in writing from time to time. The Servicer shall
reimburse the Securities Intermediary for all reasonable expenses, disbursements
and other third-party costs reasonably incurred by the Securities Intermediary
in connection with its administration of the Securities Account.
Section
4.03. Certain
Rights of the
Securities Intermediary.
(a) The
duties, responsibilities and obligations of Securities Intermediary shall be
limited to those expressly set forth herein and no duties, responsibilities
or
obligations shall be inferred or implied.
(b) Securities
Intermediary shall not be subject to, charged with the knowledge of any
provision of, nor required to comply with, (i) any other agreement between
or
among the Seller, the Servicer and the Secured Party or (ii) any agreement
to
which either the Seller, the Servicer or the Secured Party is a party, even
though reference thereto may be made herein.
(c) Securities
Intermediary shall not be required to, and shall not, expend or risk any of
its
own funds or otherwise incur any financial liability in the performance of
any
of its duties hereunder, except in connection with any liabilities arising
out
of Securities Intermediary’s gross negligence or willful
misconduct.
(d) Securities
Intermediary shall not be liable for any action taken or omitted or for any
loss
or injury resulting from its actions or its performance or lack of performance
of its duties hereunder in the absence of gross negligence or willful misconduct
on its part.
(e) The
Securities Intermediary shall be entitled to rely upon any written instructions
actually received by it and reasonably believed by it to be duly authorized
and
delivered.
ARTICLE
V
MISCELLANEOUS
Section
5.01. Choice
of
Law. This Agreement and the Securities Account shall be
governed by the laws of the State of New York. Regardless of any
provision in any other agreement, for purposes of the UCC, New York shall
be deemed to be the Securities Intermediary’s location and the Securities
Account (as well as the Security Entitlements related thereto) shall be governed
by the laws of the State of New York.
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Section
5.02. Conflict
with other
Agreements. There are no other agreements entered into between
the Securities Intermediary in such capacity and the Seller with respect to
the
Securities Account. In the event of any conflict between this
Agreement (or any portion thereof) and any other agreement now existing or
hereafter entered into, the terms of this Agreement shall prevail.
Section
5.03. Amendments. No
amendment or modification of this Agreement or waiver of any right hereunder
shall be binding on any party hereto unless it is in writing and is signed
by
all of the parties hereto.
Section
5.04. Successors. The
terms of this Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective corporate successors.
Section
5.05. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, return receipt requested, to, in the case of (i) the
Seller, at 000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000,
Attention: Vice President & Treasurer, telecopier
no. (000) 000-0000, (ii) the Servicer, at 000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attention: Vice President & Treasurer,
telecopier no. (000) 000-0000, (iii) the Secured Party, JPMorgan
Chase Bank, N.A., Attetion: Asset Backed Securities Group, Chase
Tower, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and (iv) the
Securities Intermediary, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx
00000, Attn: Structured Finance Services, telecopier
no. (000) 000-0000, or as to any of such parties, at such other
address as shall be designated by such party in a written notice to the other
parties.
Section
5.06. Termination. The
rights and powers granted herein to the Secured party have been granted in
order
to perfect its security interest in the Securities Account, are powers coupled
with an interest and will neither be affected by the bankruptcy of the Seller
nor by the lapse of time. The obligations of the Securities
Intermediary hereunder shall continue in effect with respect to the Securities
Account until the Secured Party has notified the Securities Intermediary in
writing that its security interest in the Securities Account has been
terminated.
Section
5.07. Counterparts. This
Agreement may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.
Section
5.08. Permitted
Investments. Until an Entitlement Order has been received by
the Securities Intermediary, the Securities Intermediary may comply with written
instructions (by standing instructions or otherwise) to invest funds on deposit
in the Securities Account from time to time in Permitted Investments (as defined
below) from either the Seller or the Servicer. After an Entitlement
Order has been received by the Securities Intermediary, the Securities
Intermediary shall comply with instructions from Secured Party
only. In the absence of written investment instructions, funds on
deposit in the Securities Account shall remain uninvested. In the
event of a loss on the sale of such investments, the Securities Intermediary
shall have no responsibility in respect of such loss, except with respect to
its
gross negligence or willful misconduct.
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For
purposes of this Agreement, “Permitted
Investments” shall mean: book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
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(i)
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direct
obligations of, and obligations fully guaranteed as to timely payment
of
principal and interest by, the United States of
America;
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(ii)
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demand
deposits, time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United
States of America or any state thereof (or any domestic branch of
a
foreign bank) and subject to supervision and examination by Federal
or
State banking or depository institution authorities; provided,
however,
that
at the time of the investment or contractual commitment to invest
therein,
the commercial paper or other short-term unsecured debt obligations
(other
than such obligations the rating of which is based on the credit
of a
Person other than such depository institution or trust company) thereof
shall have a credit rating from each of the Rating Agencies in the
highest
investment category for short-term unsecured debt obligations or
certificates of deposit granted
thereby;
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(iii)
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commercial
paper having, at the time of the investment or contractual commitment
to
invest therein, a rating from each of the Rating Agencies in the
highest
investment category for short-term unsecured debt obligations or
certificates of deposit granted
thereby;
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(iv)
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investments
in money market or common trust funds having a rating from each of
the
Rating Agencies in the highest investment category for short-term
unsecured debt obligations or certificates of deposit granted
thereby;
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(v)
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bankers’
acceptances issued by any depository institution or trust company
referred
to in clause (ii) above;
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(vi)
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repurchase
obligations with respect to any security that is a direct obligation
of,
or fully guaranteed by, the United States of America or any agency
or
instrumentality thereof the obligations of which are backed by the
full
faith and credit of the United States of America, in either case
entered
into with (A) a depository institution or trust company (acting as
principal) described in clause (ii) or (B) a depository
institution or trust company the deposits of which are insured by
the
Federal Deposit Insurance Corporation or the counterparty for which
has a
rating from each of the Rating Agencies in the highest investment
category
for short-term unsecured debt obligations, is marked to market daily
and
is maintained in an amount that exceeds the amount of such repurchase
obligation, and which requires liquidation of the collateral immediately
upon the amount of such collateral being less than the amount of
such
repurchase obligation (unless the counterparty immediately satisfies
the
repurchase obligation upon being notified of such
shortfall);
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(vii)
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commercial
paper master notes having, at the time of the investment or contractual
commitment to invest therein, a rating from each of the Rating Agencies
in
the highest investment category for short-term unsecured debt obligations;
and
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(viii)
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any
other investment permitted by the Secured
Party.
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in
each
case, other than as permitted by the Secured Party, maturing
not later than the
Business Day immediately preceding the next Weekly Settlement Date.
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IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective officers
as
of the day and year first above written.
TRUCK
RETAIL ACCOUNTS CORPORATION,
as
Seller
By:
Name:
Title:
JPMORGAN
CHASE BANK, N.A. as successor to BANK ONE, NA, as Agent,
as
Secured Party,
By:
Name:
Title:
THE
BANK
OF NEW YORK as successor to JPMORGAN CHASE BANK, N.A.,
as
Securities Intermediary,
By:
Name:
Title:
NAVISTAR
FINANCIAL CORPORATION,
as
Servicer
By:
Name:
Title:
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